Federal Register Vol. 82, No.4,

Federal Register Volume 82, Issue 4 (January 6, 2017)

Page Range1593-2192
FR Document

82_FR_4
Current View
Page and SubjectPDF
82 FR 1723 - Sunshine Act Meetings NoticePDF
82 FR 1762 - Sunshine Act Meeting NoticePDF
82 FR 1687 - Sunshine Act Meeting NoticePDF
82 FR 1741 - Farm Credit Administration Board; Sunshine Act; Regular MeetingPDF
82 FR 1756 - [LLOR930000.L63500000.DQ0000.LXSS081H0000.16XL1116AF; HAG 16- 0122] HEADNotice of Availability of the Northwestern and Coastal Oregon Record of Decision/Resource Management Plan and the Southwestern Oregon Record of Decision/Resource Management Plan for Western OregonPDF
82 FR 1685 - Information Collection; Significant Cave NominationPDF
82 FR 1722 - Pacific Fishery Management Council; Public MeetingPDF
82 FR 1719 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
82 FR 1733 - Notice of Availability of the Environmental Protection Agency's Preliminary Interstate Ozone Transport Modeling Data for the 2015 Ozone National Ambient Air Quality Standard (NAAQS)PDF
82 FR 1688 - Commerce Alternative Personnel SystemPDF
82 FR 1732 - Proposed Consent Decree, Clean Air Act Citizen SuitPDF
82 FR 1733 - Environmental Impact Statements; Notice of AvailabilityPDF
82 FR 1730 - Colusa-Sutter 500-Kilovolt Transmission Line Project, Colusa, Sutter, Yolo and Sacramento Counties, CaliforniaPDF
82 FR 1723 - Proposed Collection; Comment RequestPDF
82 FR 1719 - New England Fishery Management Council; Public MeetingPDF
82 FR 1760 - Certain Arrowheads With Arcuate Blades and Components Thereof Institution of InvestigationPDF
82 FR 1762 - Exelon Generation Company LLC; Clinton Power Station, Unit 1PDF
82 FR 1763 - Exelon Generation Company LLC; Clinton Power Station, Unit 1PDF
82 FR 1759 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
82 FR 1700 - Certain Hot-Rolled Carbon Steel Flat Products From India: Final Results of Antidumping Duty Administrative Review; 2014-2015PDF
82 FR 1696 - Magnesium Metal From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2015-2016PDF
82 FR 1693 - Sulfanilic Acid From India: Final Results of Expedited Sunset Review of the Countervailing Duty OrderPDF
82 FR 1741 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
82 FR 1747 - Center for Substance Abuse Treatment; Notice of MeetingPDF
82 FR 1695 - Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles From the People's Republic of China: Continuation of Antidumping Duty OrdersPDF
82 FR 1692 - Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From Indonesia and the People's Republic of China: Continuation of Antidumping and Countervailing Duty OrdersPDF
82 FR 1699 - Iron Construction Castings From Brazil, Canada, and the People's Republic of China: Continuation of Antidumping Duty Orders and Countervailing Duty OrderPDF
82 FR 1695 - Magnesia Carbon Bricks From the People's Republic of China: Final Results and Partial Rescission of the Antidumping Duty Administrative Review; 2014-2015PDF
82 FR 1698 - Certain Steel Threaded Rod From the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2014-2015PDF
82 FR 1763 - Postal Service Performance Report and Performance PlanPDF
82 FR 1761 - Notice of Permit Modification Received Under the Antarctic Conservation Act of 1978PDF
82 FR 1761 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978PDF
82 FR 1780 - Decatur Central Railroad, L.L.C.-Change in Operator Exemption-Decatur Junction Railway Co.PDF
82 FR 1746 - Determination Concerning a Petition To Add a Class of Employees to the Special Exposure CohortPDF
82 FR 1742 - Determination Concerning a Petition to Add a Class of Employees to the Special Exposure CohortPDF
82 FR 1691 - In the Matter of: Kamran Ashfaq Malik, Inmate Number: 57841-037, FCI Fort Dix, Federal Correctional Institution, P.O. Box 2000, Joint Base MDL, NJ 08640; Order Denying Export PrivilegesPDF
82 FR 1689 - In the Matter of: Dane Francisco Delgado, Inmate Number: 60114-379, Eden, Correctional Institution, P.O. Box 605, Eden, TX 76837; Order Denying Export PrivilegesPDF
82 FR 1780 - CSX Transportation, Inc.-Discontinuance of Service Exemption-in Boone County, W. Va.PDF
82 FR 1745 - Submission for OMB Review; Comment RequestPDF
82 FR 1781 - Hours of Service of Drivers: Dillon Transportation LLC; Application for ExemptionPDF
82 FR 1782 - Commercial Driver's License Standards: Application for Exemption; Daimler Trucks North America (Daimler)PDF
82 FR 1685 - Notice of Availability of the Atlantic Coast Pipeline Project and Supply Header Project Draft Environmental Impact Statement and the Forest Service Draft of Associated Land and Resource Management Plan AmendmentsPDF
82 FR 1690 - In the Matter of: Robert Luba, Inmate Number: 65986-050, USP Canaan, U.S. Penitentiary, Satellite Camp, P.O. Box 200, Waymart, PA 18472; Order Denying Export PrivilegesPDF
82 FR 1749 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; FEMA's Grants Reporting Tool (GRT)PDF
82 FR 1742 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
82 FR 1744 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
82 FR 1750 - Proposed Bakersfield Habitat Conservation Plan/Natural Community Conservation Plan, California; Scoping for Environmental Impact StatementPDF
82 FR 1783 - Designation of 3 Individuals and 2 Entities Pursuant to Executive Order 13581, “Blocking Property of Transnational Criminal Organizations”PDF
82 FR 1746 - National Advisory Council on the National Health Service Corps; Notice of a MeetingPDF
82 FR 1748 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; FEMA Preparedness Grants: Transit Security Grant Program (TSGP)PDF
82 FR 1749 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; FEMA Preparedness Grants: Port Security Grant Program (PSGP)PDF
82 FR 1764 - FY 2016 Annual Compliance ReportPDF
82 FR 1747 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; Environmental and Historic Preservation Screening FormPDF
82 FR 1748 - Commonwealth of the Northern Mariana Islands; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
82 FR 1720 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the South Atlantic States; Amendment 43PDF
82 FR 1723 - Applications for New Awards; Fulbright-Hays Group Projects Abroad ProgramPDF
82 FR 1729 - Algonquin Power Sanger LLC: Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
82 FR 1729 - Combined Notice of Filings #2PDF
82 FR 1770 - Notice of Applications For Deregistration Under Section 8(f) of the Investment Company Act of 1940PDF
82 FR 1767 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE MKT Equities Price List and the NYSE Amex Options Fee Schedule To Modify the Fees Related to Four Bundles of Co-Location Services in Connection With the Exchange's Co-Location ServicesPDF
82 FR 1774 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Options Fee Schedule and the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services To Modify the Fees Related to Four Bundles of Co-Location Services in Connection With the Exchange's Co-Location ServicesPDF
82 FR 1777 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Amend the Exchange's Price List to Modify the Fees Related to Four Bundles of Co-Location Services in Connection with the Exchange's Co-Location ServicesPDF
82 FR 1766 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving a Proposed Rule Change, as Modified by Amendment No. 1, Amending NYSE Arca Equities Rule 7.35 To Provide for Widened Auction Collars for the Core Open Auction on Volatile Trading DaysPDF
82 FR 1772 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Equities Rule 7.35(d)(4)PDF
82 FR 1689 - Foreign-Trade Zone (FTZ) 76-Danbury, Connecticut Notification of Proposed Production Activity; MannKind Corporation, (Fumaryl Diketopiperazone (FDKP) Carrier/Receptor Powder), Danbury, ConnecticutPDF
82 FR 1753 - Notice of Availability of Records of Decision and Approved Resource Management Plans for the Four Subunits of the Eastern Interior Resource Management Plan and Final Environmental Impact StatementPDF
82 FR 1754 - Notice of Availability of the Draft Central Coast Resource Management Plan Amendment and Draft Environmental Impact Statement for Oil and Gas Leasing and Development, CaliforniaPDF
82 FR 1627 - Airworthiness Directives; The Boeing Company AirplanesPDF
82 FR 1621 - Airworthiness Directives; Dassault Aviation AirplanesPDF
82 FR 1623 - Airworthiness Directives; Airbus AirplanesPDF
82 FR 1647 - General Provisions; Electronic CigarettesPDF
82 FR 1703 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts BayPDF
82 FR 1702 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Long Range Strike Weapons Systems Evaluations ProgramPDF
82 FR 1721 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Fishery-Independent Monitoring ActivitiesPDF
82 FR 1651 - Addition of Natural Gas Processing Facilities to the Toxics Release Inventory (TRI)PDF
82 FR 1606 - Annual Civil Monetary Penalties Inflation AdjustmentPDF
82 FR 1595 - Airworthiness Directives; Dassault Aviation AirplanesPDF
82 FR 1593 - Airworthiness Directives; Airbus AirplanesPDF
82 FR 1598 - Obstetrical and Gynecological Devices; Reclassification of Surgical Instrumentation for Use With Urogynecologic Surgical MeshPDF
82 FR 1750 - Federal Property Suitable as Facilities To Assist the HomelessPDF
82 FR 1657 - Endangered and Threatened Wildlife and Plants; Removing Eriogonum gypsophilumPDF
82 FR 1677 - Endangered and Threatened Wildlife and Plants; Reclassifying Echinocereus fendleriPDF
82 FR 1757 - Notice of Availability and Notice of Public Meetings for the Draft Environmental Impact Statement for the Pojoaque Basin Regional Water System, Santa Fe County, New MexicoPDF
82 FR 1603 - Air Plan Approval; Ohio; Redesignation of the Cleveland, Ohio Area to Attainment of the 2008 Ozone StandardPDF
82 FR 2124 - Regulations Relating to Information Reporting by Foreign Financial Institutions and Withholding on Certain Payments to Foreign Financial Institutions and Other Foreign EntitiesPDF
82 FR 1629 - Chapter 4 Regulations Relating to Verification and Certification Requirements for Certain Entities and Reporting by Foreign Financial InstitutionsPDF
82 FR 2046 - Regulations Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons, Information Reporting and Backup Withholding on Payments Made to Certain U.S. Persons, and Portfolio Interest TreatmentPDF
82 FR 1645 - Revision of Regulations Under Chapter 3 Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign PersonsPDF
82 FR 1665 - Endangered and Threatened Wildlife and Plants; Removal of the Lesser Long-Nosed Bat From the Federal List of Endangered and Threatened WildlifePDF
82 FR 1860 - Issuance and Reissuance of Nationwide PermitsPDF
82 FR 2010 - Supplemental Nutrition Assistance Program (SNAP): Eligibility, Certification, and Employment and Training Provisions of the Food, Conservation and Energy Act of 2008PDF
82 FR 1786 - Energy Conservation Program: Energy Conservation Standards for Residential Central Air Conditioners and Heat PumpsPDF
82 FR 1608 - Energy Conservation Program: Energy Conservation Standards for Consumer Central Air Conditioners and Heat PumpsPDF

Issue

82 4 Friday, January 6, 2017 Contents Agriculture Agriculture Department See

Food and Nutrition Service

See

Forest Service

Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 1742-1745 2017-00003 2017-00004 Determinations Concerning Petitions to Add Classes of Employees to the Special Exposure Cohort, 1742 2017-00017 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: OCSE-157 Child Support Enforcement Program Annual Data Report, 1745-1746 2017-00012 Civil Rights Civil Rights Commission NOTICES Meetings; Sunshine Act, 1687-1688 2017-00142 Commerce Commerce Department See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Commerce Alternative Personnel System, 1688-1689 2017-00057
Consumer Product Consumer Product Safety Commission NOTICES Meetings; Sunshine Act, 1723 2017-00197 Corporation Corporation for National and Community Service RULES Civil Monetary Penalties Inflation Adjustments, 1606-1607 2016-31897 Defense Department Defense Department See

Engineers Corps

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 1723 2017-00049
Education Department Education Department NOTICES Applications for New Awards: Fulbright-Hays Group Projects Abroad Program, 1723-1729 2016-32046 Energy Department Energy Department See

Federal Energy Regulatory Commission

See

Western Area Power Administration

RULES Energy Conservation Programs: Energy Conservation Standards for Residential Central Air Conditioners and Heat Pumps, 1786-1858 2016-29992 PROPOSED RULES Energy Conservation Programs: Standards for Consumer Central Air Conditioners and Heat Pumps, 1608-1621 2016-29990
Engineers Engineers Corps RULES Issuance and Reissuance of Nationwide Permits, 1860-2008 2016-31355 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Ohio; Redesignation of the Cleveland, OH Area to Attainment of the 2008 Ozone Standard, 1603-1606 2016-31634 PROPOSED RULES Addition of Natural Gas Processing Facilities to the Toxics Release Inventory, 1651-1656 2016-31921 NOTICES Environmental Impact Statements; Availability, etc.: Weekly Receipts, 1733 2017-00055 Preliminary Interstate Ozone Transport Modeling Data for the 2015 Ozone National Ambient Air Quality Standard, 1733-1741 2017-00058 Proposed Consent Decrees: Clean Air Act Citizen Suit, 1732-1733 2017-00056 Farm Credit Farm Credit Administration NOTICES Meetings; Sunshine Act, 1741 2017-00131 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 1593-1595 2016-31868 Dassault Aviation Airplanes, 1595-1598 2016-31871 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 1623-1626 2016-31960 Dassault Aviation Airplanes, 1621-1623 2016-31963 The Boeing Company Airplanes, 1627-1629 2016-31964 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Environmental and Historic Preservation Screening Form, 1747 2016-32052 Grants Reporting Tool (GRT), 1749-1750 2017-00006 Preparedness Grants: Transit Security Grant Program, 1748 2016-32055 Preparedness Grants; Port Security Grant Program, 1749 2016-32054 Major Disaster Declarations: Commonwealth of the Northern Mariana Islands; Amendment No. 3, 1748 2016-32051 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 1729-1730 2016-32043 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Algonquin Power Sanger, LLC, 1729 2016-32044 Federal Motor Federal Motor Carrier Safety Administration NOTICES Commercial Driver's License Standards; Exemption Applications: Daimler Trucks North America, 1782-1783 2017-00010 Hours of Service of Drivers; Exemption Applications: Dillon Transportation LLC, 1781-1782 2017-00011 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 1741-1742 2017-00032 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Reclassifying Echinocereus fendleri var. kuenzleri from Endangered to Threatened, 1677-1684 2016-31763 Removal of the Lesser Long-nosed Bat From the Federal List, 1665-1676 2016-31408 Removing Eriogonum gypsophilum from the Federal List of Endangered and Threatened Plants, 1657-1665 2016-31764 NOTICES Environmental Impact Statements; Availability, etc.: Proposed Habitat Conservation Plan/Natural Community Conservation Plan, Bakersfield, CA, 1750-1753 2017-00002 Food and Drug Food and Drug Administration RULES Medical Devices: Obstetrical and Gynecological Devices; Reclassification of Surgical Instrumentation for Use With Urogynecologic Surgical Mesh, 1598-1603 2016-31862 Food and Nutrition Food and Nutrition Service RULES Supplemental Nutrition Assistance Program: Eligibility, Certification, and Employment and Training Provisions of the Food, Conservation and Energy Act of 2008, 2010-2044 2016-30663 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 1783-1784 2017-00001 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: MannKind Corp., Foreign-Trade Zone 76, Danbury, CT, 1689 2016-32034 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Significant Cave Nominations, 1685 2017-00061 Environmental Impact Statements; Availability, etc.: Atlantic Coast Pipeline Project and Supply Header Project, 1685-1687 2017-00008 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

Substance Abuse and Mental Health Services Administration

NOTICES Petitions to Add a Class of Employees to the Special Exposure Cohort, 1746-1747 2017-00018 2017-00019
Health Resources Health Resources and Services Administration NOTICES Meetings: National Advisory Council on the National Health Service Corps, 1746 2016-32059 Homeland Homeland Security Department See

Federal Emergency Management Agency

Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 1750 2016-31790 Industry Industry and Security Bureau NOTICES Export Privileges; Denials Dane Francisco Delgado, 1689-1690 2017-00015 Kamran Ashfaq Malik, 1691-1692 2017-00016 Orders: Robert Luba, 1690-1691 2017-00007 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

See

Reclamation Bureau

Internal Revenue Internal Revenue Service RULES Regulations Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons, Information Reporting and Backup Withholding on Payments Made to Certain U.S. Persons, and Portfolio Interest Treatment, 2046-2122 2016-31590 Regulations Relating to Information Reporting by Foreign Financial Institutions and Withholidng on Certain Payments to Foreign Financial Institutions and Other Foreign Entities, 2124-2192 2016-31601 PROPOSED RULES Regulations Relating to Verification and Certification Requirements for Certain Entities and Reporting by Foreign Financial Institutions, 1629-1645 2016-31599 Regulations under Chapter 3 Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons, 1645-1647 2016-31589 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from Indonesia and the People's Republic of China, 1692-1693 2017-00029 Certain Hot-Rolled Carbon Steel Flat Products from India, 1700-1702 2017-00037 Certain Steel Threaded Rod from the People's Republic of China, 1698-1699 2017-00026 Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles from the People's Republic of China, 1695 2017-00030 Iron Construction Castings from Brazil, Canada, and the People's Republic of China, 1699-1700 2017-00028 Magnesia Carbon Bricks from the People's Republic of China, 1695-1696 2017-00027 Magnesium Metal from the People's Republic of China; Administrative Review, 2015-2016, 1696-1698 2017-00036 Sulfanilic Acid from India; Final Results of Expedited Sunset Review, 1693-1694 2017-00035 International Trade Com International Trade Commission NOTICES Complaints: Certain Basketball Board Components and Products Containing the Same, 1759-1760 2017-00043 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Arrowheads with Arcuate Blades and Components Thereof, 1760-1761 2017-00047 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Northwestern and Coastal Oregon Record of Decision; Resource Management Plan and Southwestern Oregon Record of Decision; Western Oregon Resource Management Plan, 1756-1757 2017-00064 Oil and Gas Leasing and Development, CA, 1754-1756 2016-31975 Records of Decision and Approved Resource Management Plans for the Four Subunits of the Eastern Interior Resource Management Plan, 1753-1754 2016-31976 National Oceanic National Oceanic and Atmospheric Administration NOTICES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Snapper-Grouper Fishery off the South Atlantic States; Amendment 43, 1720-1721 2016-32049 Meetings: Mid-Atlantic Fishery Management Council, 1719-1720 2017-00059 New England Fishery Management Council, 1719 2017-00048 Pacific Fishery Management Council, 1722 2017-00060 Takes of Marine Mammals Incidental to Specified Activities: Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts Bay, 1703-1719 2016-31948 Taking and Importing Marine Mammals Incidental to Specific Activities: Fishery-Independent Monitoring Activities, 1721-1722 2016-31946 Long Range Strike Weapons Systems Evaluations Program, 1702-1703 2016-31947 National Park National Park Service PROPOSED RULES General Provisions; Electronic Cigarettes, 1647-1651 2016-31957 National Science National Science Foundation NOTICES Antarctic Conservation Act Permit Applications, 1761 2017-00021 2017-00022 2017-00023 Nuclear Regulatory Nuclear Regulatory Commission NOTICES License Applications; Withdrawals: Exelon Generation Co. LLC; Clinton Power Station, Unit 1, 1762 2017-00046 Exelon Generation Company LLC; Clinton Power Station, Unit 1, 1763 2017-00045 Meetings; Sunshine Act, 1762 2017-00164 Postal Regulatory Postal Regulatory Commission NOTICES FY 2016 Annual Compliance Report, 1764-1766 2016-32053 Postal Service Performance Reports and Performance Plans, 1763-1764 2017-00024 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Pojoaque Basin Regional Water System, Santa Fe County, NM, 1757-1759 2016-31736 Securities Securities and Exchange Commission NOTICES Applications for Deregistration, 1770-1772 2016-32041 Self-Regulatory Organizations; Proposed Rule Changes: New York Stock Exchange LLC, 1777-1780 2016-32038 NYSE Arca, Inc., 1766-1767, 1772-1777 2016-32036 2016-32037 2016-32039 NYSE MKT LLC, 1767-1770 2016-32040 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Center for Substance Abuse Treatment National Advisory Council, 1747 2017-00031 Surface Transportation Surface Transportation Board NOTICES Discontinuance of Service Exemptions: CSX Transportation, Inc., Boone County, WV, 1780-1781 2017-00014 Operation Exemptions: Decatur Central Railroad, L.L.C. from Decatur Junction Railway Co., 1780 2017-00020 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

Western Western Area Power Administration NOTICES Meetings: Colusa-Sutter 500-Kilovolt Transmission Line Project, Colusa, Sutter, Yolo and Sacramento Counties, CA; Public Scoping, 1730-1732 2017-00053 Separate Parts In This Issue Part II Energy Department, 1786-1858 2016-29992 Part III Defense Department, Engineers Corps, 1860-2008 2016-31355 Part IV Agriculture Department, Food and Nutrition Service, 2010-2044 2016-30663 Part V Treasury Department, Internal Revenue Service, 2046-2122 2016-31590 Part VI Treasury Department, Internal Revenue Service, 2124-2192 2016-31601 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 4 Friday, January 6, 2017 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9117; Directorate Identifier 2016-NM-095-AD; Amendment 39-18775; AD 2017-01-08] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Airbus Model A330-200 Freighter, -200 and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. This AD was prompted by reports of certain hydraulic reservoirs (HRs) becoming depressurized due to air leakage from the HR pressure relief valve (PRV). This AD requires repetitive inspections of the hydraulic fluid levels and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, adjustment of the fluid level(s) and nitrogen pressure in affected HRs. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective February 10, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 10, 2017.

ADDRESSES:

For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email: airworthiness. [email protected]; Internet: http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 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-2016-9117.

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-2016-9117; 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:

Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; 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 A330-200 Freighter, -200 and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. The NPRM published in the Federal Register on October 3, 2016 (81 FR 67937) (“the NPRM”). The NPRM was prompted by reports of certain HRs becoming depressurized due to air leakage from the HR PRV. The NPRM proposed to require repetitive inspections of the hydraulic fluid levels and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, adjustment of the fluid level(s) and nitrogen pressure in affected HRs. We are issuing this AD to detect and correct air leakage from an HR PRV, which could lead to the loss of one or more hydraulic systems, with the possible result of loss of control of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0107, dated June 7, 2016, to correct an unsafe condition for certain Airbus Model A330-200 Freighter, -200 and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

Some events of depressurisation of hydraulic reservoirs have been reported, due to air leakage from the HR PRV [hydraulic reservoir pressure relief valve]. The results of the investigations revealed that the air leakage was due to the extrusion of the O-ring seal from the HR PRV. This may have happened during HR maintenance, testing or during flight, if HR over-filling was performed, as a result of which hydraulic fluid could pass through the PRV, causing [the] PRV seal to migrate from its nominal position, leading to loss of HR pressurisation.

This condition, if not detected and corrected, could lead to the loss of one or more hydraulic systems, possibly resulting in loss of control of the aeroplane.

Prompted by these findings, Airbus issued Alert Operators Transmission (AOT) A29L005-16 [dated January 28, 2016] to provide inspection instructions.

For the reasons described above, this [EASA] AD requires repetitive inspections of the HR fluid level of each hydraulic circuit and, depending on findings, accomplishment of applicable corrective action(s). This [EASA] AD also requires actions when maintenance action is accomplished on hydraulic reservoirs.

This [EASA] AD is considered as interim action and further [EASA] AD action may follow.

Required actions include repetitive inspection of the hydraulic fluid levels and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, adjustment of the fluid level(s) and nitrogen pressure in affected HRs. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9117.

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

We reviewed Airbus Alert Operators Transmission (AOT) A29L005-16, Revision 01, dated June 28, 2016. This service information describes procedures for inspecting hydraulic fluid levels and nitrogen gas pressure in certain HRs, and adjustment of the fluid level(s) and nitrogen pressure in affected HRs. 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 101 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 1 work-hour × $85 per hour = $85 per inspection cycle $0 $85 per inspection cycle $8,585 per inspection cycle.

We estimate the following costs to do any necessary servicing that will be required based on the results of the required inspection. We have no way of determining the number of airplanes that might need this servicing:

On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Adding or removing hydraulic fluid or nitrogen gas 1 work-hour × $85 per hour = $85 $0 $85
    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.

    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): 2017-01-08 Airbus: Amendment 39-18775; Docket No. FAA-2016-9117; Directorate Identifier 2016-NM-095-AD. (a) Effective Date

    This AD is effective February 10, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342 and -343 airplanes; and Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes; certificated in any category, fitted with a hydraulic reservoir (HR) pressure relief valve (PRV) part number (P/N) 42F0026 installed on TECHSPACE HR having P/N 42F1005, 42F1203, 42F1304, 42F1412, 42F1512, or 42F1607.

    (d) Subject

    Air Transport Association (ATA) of America Code 29, Hydraulic power.

    (e) Reason

    This AD was prompted by reports of certain hydraulic reservoirs (HRs) becoming depressurized due to air leakage from the HR PRV. We are issuing this AD to detect and correct air leakage from the HR PRV, which could lead to the loss of one or more hydraulic systems, with the possible result of loss of control of the airplane.

    (f) Compliance

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

    (g) Inspection of Fluid Level and Nitrogen Pressure in HR

    Within the compliance time defined in table 1 to paragraph (g) of this AD, as applicable, inspect the HR fluid level and nitrogen pressure of each hydraulic circuit, in accordance with the instructions of paragraph 4.2.2.1 of Airbus Alert Operators Transmission (AOT) A29L005-16, Revision 01, dated June 28, 2016. Repeat the inspection thereafter at intervals not to exceed 1,600 flight hours.

    Table 1 to Paragraph (g) of This AD—Initial Inspection Compliance Time Compliance Time (A or B, whichever occurs later) A Before accumulating 1,600 flight hours since first flight of the airplane. B Within 1,000 flight hours or 3 months, whichever occurs first after the effective date of this AD. (h) Corrective Action

    If, during any inspection required by paragraph (g) of this AD, any unacceptable pressure or fluid level is identified, before further flight, do the actions in paragraphs (h)(1) and (h)(2) of this AD, as applicable, for each unacceptable pressure or fluid level that is discovered. Accomplishment of these actions on an airplane does not constitute terminating action for the repetitive inspections as required by paragraph (g) of this AD for that airplane.

    (1) Add or remove hydraulic fluid, as applicable, in accordance with the instructions of paragraph 4.2.2.2 of Airbus Alert Operators Transmission (AOT) A29L005-16, Revision 01, dated June 28, 2016.

    (2) Add or remove nitrogen gas, as applicable, in accordance with the instructions of paragraph 4.2.2.2 of Airbus AOT A29L005-16, Revision 01, dated June 28, 2016.

    (i) Servicing Hydraulic Reservoir

    Concurrent with the initial inspection specified in paragraph (g) of this AD, revise the maintenance or inspection program, as applicable, to incorporate the hydraulic reservoir servicing actions specified in paragraph 4.2.2.2 of Airbus AOT A29L005-16, Revision 01, dated June 28, 2016.

    (j) No Alternative Actions and Intervals

    After accomplishing the revision required by paragraph (i) of this AD, no alternative actions (e.g., inspections) and intervals may be used unless the actions and intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (l)(1) of this AD.

    (k) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using Airbus AOTA29L005-16, dated January 28, 2016.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, 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 Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. 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 Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0107, dated June 7, 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-2016-9117.

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

    (n) 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) Airbus Alert Operators Transmission (AOT) A29L005-16, Revision 01, dated June 28, 2016.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email: [email protected]; Internet: http://www.airbus.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 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 December 23, 2016. Thomas Groves, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31868 Filed 1-5-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-7420; Directorate Identifier 2015-NM-017-AD; Amendment 39-18774; AD 2017-01-07] 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 all Dassault Aviation Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; Model MYSTERE-FALCON 200 airplanes; Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes; and MYSTERE-FALCON 50 airplanes. This AD was prompted by a report that, during approach for landing, the main entry door detached from an airplane. This AD requires a functional test or check of the main entry door closure and warning system, and applicable door closing inspections, adjustments, operational tests, and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective February 10, 2017.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 10, 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 Airplane Directorate, 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-2016-7420.

    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-2016-7420; 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 Branch, ANM-116, Transport Airplane Directorate, 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 all Dassault Aviation Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; Model MYSTERE-FALCON 200 airplanes; Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes; and MYSTERE-FALCON 50 airplanes. The NPRM published in the Federal Register on July 1, 2016 (81 FR 43120).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0007, dated January 15, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; Model MYSTERE-FALCON 200 airplanes; Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes; and MYSTERE-FALCON 50 airplanes. The MCAI states:

    During approach for landing, a Mystère-Falcon 20-X5 lost the main entrance door [MED] at an altitude of 7,000 feet. The flight crew maintained control of the aeroplane to land uneventfully. The results of the preliminary technical investigations concluded that the cause of this event could be either a broken cable, or an unlocked safety catch, associated with one or two deficient micro switches.

    This condition, if not detected and corrected, could lead to in-flight opening and/or detachment of the Crew/Passenger door, possibly resulting in loss of control of the aeroplane, and/or injury to persons on the ground.

    To address this potential unsafe condition, Dassault Aviation issued Service Bulletins (SB) F20-789, F200-133 and MF50-531, providing instructions for inspection/adjustment, as well as an operational test of the Crew/Passenger door closure.

    For the reasons described above, this [EASA] AD requires a one-time accomplishment of a functional test/check of the MED closure/warning system. It also requires [a general visual] inspection and operational test of the Crew/Passenger door [including the control and latching mechanisms] and, depending on findings, applicable corrective actions.

    Corrective actions include adjusting the telescopic rod bolts on the door until the clearance between the lower part of the door and the fuselage is within the specified tolerances. The corrective actions for the control and latching mechanisms include adjusting components and replacing damaged components (including pull latches, microswitches, pulleys, and cables). Signs of damage include cracks, corrosion, wear, and distortion. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7420.

    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 issued the following service information.

    • Dassault Service Bulletin F20-789, also referred to as 789, dated December 9, 2014.

    • Dassault Service Bulletin F50-531, also referred to as 531, dated December 9, 2014.

    • Dassault Service Bulletin F200-133, also referred to as 133, dated December 9, 2014.

    The service information describes procedures for inspections, adjustments, and operational tests of certain doors and corrective actions. These documents are distinct since they apply to different airplane models. 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 392 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/adjustments/operational tests. 4 work-hours × $85 per hour = $340 $0 $340 $133,280

    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.

    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): 2017-01-07 Dassault Aviation: Amendment 39-18774; Docket No. FAA-2016-7420; Directorate Identifier 2015-NM-017-AD. (a) Effective Date

    This AD is effective February 10, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Dassault Aviation airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(5) of this AD, all airplanes.

    (1) Model FAN JET FALCON airplanes.

    (2) Model FAN JET FALCON SERIES C, D, E, F, and G airplanes.

    (3) Model MYSTERE-FALCON 200 airplanes.

    (4) Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes.

    (5) Model MYSTERE-FALCON 50 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors.

    (e) Reason

    This AD was prompted by a report that, during approach for landing, the main entry door detached from an airplane. We are issuing this AD to detect and correct defective crew/passenger doors. Such a condition could result in the in-flight opening or detachment of the crew/passenger door, which could result in loss of control of the airplane and injury to persons on the ground.

    (f) Compliance

    Comply with this AD within the compliance times specified.

    (g) Main Entry/Passenger/Crew Door Check or Functional Test

    Within 65 days after the effective date of this AD, unless done within 6 months before the effective date of this AD, do the applicable functional test or door lock check specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, and do all applicable corrective actions, using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). Do all applicable corrective actions before further flight.

    (1) For Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; and Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes: A functional test of the passenger/crew door warning system.

    (2) For Model MYSTERE-FALCON 200 airplanes: A check of the door locking indicator system.

    (3) For Model MYSTERE-FALCON 50 airplanes: A check of the door lock indication.

    (h) Main Entry/Passenger/Crew Door Closing Inspections, Adjustments, and Operational Tests and Corrective Actions

    Within 330 flight hours or 13 months, whichever occurs first after the effective date of this AD, unless already done: Do the applicable door closing inspections, adjustments, and operational tests, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (h)(1), (h)(2), or (h)(3) of this AD. Do all applicable corrective actions before further flight.

    (1) For Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; and Model MYSTERE-FALCON 20-C5, 20-D5, 20-E5, and 20-F5 airplanes: Dassault Service Bulletin F20-789, also referred to as 789, dated December 9, 2014.

    (2) For Model MYSTERE-FALCON 200 airplanes: Dassault Service Bulletin F200-133, also referred to as 133, dated December 9, 2014.

    (3) For Model MYSTERE-FALCON 50 airplanes: Dassault Service Bulletin F50-531, also referred to as 531, dated December 9, 2014.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, 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 Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. 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 Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Dassault Aviation's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0007, dated January 15, 2015, 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-2016-7420.

    (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 F20-789, also referred to as 789, dated December 9, 2014.

    (ii) Dassault Service Bulletin F50-531, also referred to as 531, dated December 9, 2014.

    (iii) Dassault Service Bulletin F200-133, also referred to as 133, dated December 9, 2014.

    (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 Airplane Directorate, 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 December 23, 2016. Thomas Groves, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31871 Filed 1-5-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 884 [Docket No. FDA-2014-N-0297] Obstetrical and Gynecological Devices; Reclassification of Surgical Instrumentation for Use With Urogynecologic Surgical Mesh AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is reclassifying surgical instrumentation for use with urogynecologic surgical mesh from class I (general controls) exempt from premarket notification to class II (special controls) and subject to premarket notification, and identifying them as “specialized surgical instrumentation for use with urogynecologic surgical mesh.” FDA is designating special controls that are necessary to provide a reasonable assurance of safety and effectiveness of the device. FDA is reclassifying this device on its own initiative based on new information.

    DATES:

    This order is effective January 6, 2017. See further discussion in section V, “Implementation Strategy.”

    FOR FURTHER INFORMATION CONTACT:

    Sharon Andrews, Center for Devices and Radiological Health, 10903 New Hampshire Ave., Bldg. 66, Rm. G110, Silver Spring, MD 20993, 301-796-6529, [email protected]

    SUPPLEMENTARY INFORMATION: I. Background—Regulatory Authorities

    The Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 301 et seq.), as amended, established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

    Devices that were in commercial distribution before the enactment of the 1976 amendments on May 28, 1976, are generally referred to as preamendments devices. Under section 513(d) of the FD&C Act, preamendments devices are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.

    Devices that were not in commercial distribution prior to May 28, 1976, are generally referred to as postamendments devices. Postamendments devices are automatically classified into class III without any FDA rulemaking process (section 513(f) of the FD&C Act). Postamendments devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, under section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and 21 CFR part 807.

    On July 9, 2012, the Food and Drug Administration Safety and Innovation Act (FDASIA) (Pub. L. 112-144) was enacted. Section 608(a) of FDASIA amended section 513(e) of the FD&C Act, changing the mechanism for reclassifying a device from rulemaking to an administrative order.

    Section 513(e) of the FD&C Act provides that FDA may, by administrative order, reclassify a device based upon “new information.” FDA can initiate a reclassification under section 513(e) of the FD&C Act or an interested person may petition FDA to reclassify a device. The term “new information,” as used in section 513(e) of the FD&C Act, includes information developed as a result of a reevaluation of the data before the Agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g., Holland-Rantos Co. v. United States Department of Health, Education, and Welfare, 587 F.2d 1173, 1174 n.1 (D.C. Cir. 1978); Upjohn v. Finch, 422 F.2d 944 (6th Cir. 1970); Bell v. Goddard, 366 F.2d 177 (7th Cir. 1966).)

    Reevaluation of the data previously before the Agency is an appropriate basis for subsequent action where the reevaluation is made in light of newly available authority (see Bell, 366 F.2d at 181; Ethicon, Inc. v. FDA, 762 F.Supp. 382, 388-391 (D.D.C. 1991)), or in light of changes in “medical science” (Upjohn, 422 F.2d at 951). Whether data before the Agency are old or new data, the “new information” to support reclassification under section 513(e) must be “valid scientific evidence,” as defined in section 513(a)(3) of the FD&C Act and § 860.7(c)(2) (21 CFR 860.7(c)(2)). (See, e.g., Gen. Medical Co. v. FDA, 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Mfrs. Assoc. v. FDA, 766 F.2d 592 (D.C. Cir. 1985), cert. denied, 474 U.S. 1062 (1986).) To be considered in the reclassification process, the “valid scientific evidence” upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending premarket approval application (PMA). (See section 520(c) of the FD&C Act (21 U.S.C. 360j(c)).)

    The process for issuing a final reclassification order is specified in section 513(e)(1) of the FD&C Act. Prior to the issuance of a final order reclassifying a device, the following must occur: (1) Publication of a proposed order in the Federal Register; (2) a meeting of a device classification panel described in section 513(b) of the FD&C Act; and (3) consideration of comments to a public docket.

    In the Federal Register of May 1, 2014, FDA published a proposed order to reclassify surgical mesh for transvaginal pelvic organ prolapse (POP) repair from class II to class III (79 FR 24634). In the same order, FDA also proposed to reclassify specialized surgical instrumentation for use with urogynecologic surgical mesh (hereafter referred to as urogynecologic surgical mesh instrumentation) from class I—regulated under § 876.4730 (21 CFR 876.4730) (manual gastroenterology-urology surgical instrument and accessories) and § 878.4800 (21 CFR 878.4800) (manual surgical instrument for general use)—to class II and subject to premarket notification. In the Federal Register of January 5, 2016, FDA published two final orders that: (1) Reclassified surgical mesh for transvaginal POP repair from class II to class III (81 FR 354) and (2) required the filing of a PMA or notice of completion of a product development protocol for surgical mesh for transvaginal POP repair (81 FR 364).

    In the May 1, 2014 proposed order, FDA stated that it would convene a panel specifically to discuss reclassification of urogynecologic surgical mesh instrumentation before finalizing reclassification of those devices. FDA held a meeting on February 26, 2016 (81 FR 938, January 8, 2016), of the Gastroenterology-Urology Devices Panel of the Medical Devices Advisory Committee (“the Panel”), a device classification panel described in section 513(b) of the FD&C Act. Prior to the meeting, all panel members were provided a comprehensive Executive Summary regarding the reclassification of urogynecologic surgical mesh instrumentation, which included information contained in the May 1, 2014, proposed order, a summary of comments submitted to the public docket on the proposed reclassification of urogynecologic surgical mesh instrumentation, and information regarding FDA's risk-based classification and regulation of medical devices (Ref. 1).

    The Executive Summary also included a new FDA analysis of perioperative adverse events related to urogynecologic surgical mesh procedures. FDA conducted a new analysis to supplement the adverse event information discussed in the May 1, 2014, proposed order, which included adverse events related to POP procedures that were: (1) Reported in clinical studies and systematic literature reviews in the published literature or (2) submitted to the Manufacturer and User Facility Device Experience (MAUDE) database between January 1, 2011, and December 31, 2013. FDA's new analysis was a more comprehensive analysis of perioperative adverse events associated with stress urinary incontinence (SUI) procedures (retropubic, transobturator, mini-sling) and POP procedures (transvaginal repair and transabdominal repair (transabdominal POP repair is referred to as sacrocolpopexy)).

    Adverse events related to a urogynecologic surgical mesh procedure, and that might be attributable to the specialized instrumentation used during the procedure, are typically submitted to FDA or described in published literature with reference to the surgical mesh and not the instrumentation. Therefore, it can be difficult to distinguish adverse events related to the urogynecologic surgical mesh instrumentation from those related to the surgical mesh. As noted in the proposed order, FDA believes it is reasonable to assume that perioperative adverse events—i.e., those observed during the procedure or shortly thereafter (e.g., organ perforation, hemorrhage and bleeding, nerve injury and pain)—are caused by or related to the use of specialized surgical instrumentation to insert, place, fix, or anchor the surgical mesh during the urogynecologic procedure. Hereafter, the term “perioperative adverse events” will be used in this document to refer to adverse events that FDA believes are caused by or related to the specialized instrumentation that is the subject of this reclassification.

    In its new, more comprehensive analysis, FDA conducted a search of the relevant, scientific literature published between January 1, 1997, and December 8, 2015, to identify perioperative adverse events associated with urogynecologic surgical mesh procedures (see the 207 studies included as references in the Executive Summary provided to the Panel (Ref. 1). The search criteria consisted of a combination of terms related to adverse events (type, timing with respect to surgery), type of urogynecologic condition, type of surgical instrumentation, study design, device name, and manufacturer name. FDA then filtered the results to identify those studies that describe perioperative adverse events during one of the following urogynecologic surgical mesh procedures: SUI-retropubic, SUI-transobturator, SUI-mini-sling, POP-transvaginal, and POP-sacrocolpopexy. All perioperative adverse events were classified into one of the following categories: “organ perforation and injury,” “vascular injury and bleeding,” or “nerve injury and pain.” FDA then computed an adverse event rate for each study by dividing the number of patients that experienced one of these types of events by the total number of patients included in the study.

    FDA also conducted a search of the Medical Device Reporting (MDR) database for relevant adverse events reported between January 1, 2008, and December 2, 2015. There are no FDA product codes specifically assigned to urogynecologic surgical mesh instrumentation; therefore, FDA first identified reports that were associated with a product code assigned to urogynecologic surgical mesh. FDA filtered the resulting injury and death reports to identify and analyze those that described perioperative adverse events. By stratifying its analysis by product code for the urogynecologic surgical mesh, which depends, in part, on the procedure type (e.g., OTP is assigned to mesh used during POP-transvaginal procedures, OTN for mesh used during SUI-retropubic or transobturator procedures), FDA characterized the perioperative adverse events associated with the different kinds of urogynecologic surgical mesh instrumentation used during SUI and POP procedures.

    After completing its review of the published literature and MDR database, and aggregating its findings, FDA determined that perioperative adverse events occur during all types of urogynecologic surgical mesh procedures to treat female SUI and POP. Moreover, and as discussed in the Executive Summary (Ref. 1, Attachments 6-8), FDA made the following findings from its review of the published literature:

    • The rate of “vascular injury and bleeding” varied between 0.4-29.4 percent in studies describing retropubic SUI procedures; 0.2-11.9 percent in studies describing transobturator SUI procedures; 1-20.5 percent in studies describing mini-sling SUI procedures; 0.7-7.7 percent in studies describing transvaginal POP repair procedures; and 2.8 percent for one study describing sacrocolpoplexy procedures;

    • the rate of “organ perforation and injury” varied between 0.3-23.8 percent for retropubic SUI procedures; 0.2-5.8 percent for transobturator SUI procedures, 0.2-2.6 percent for mini-sling SUI procedures; 0.7-13.1 percent for transvaginal POP repair procedures; and 3.6 percent for one study describing sacrocolpoplexy procedures; and

    • the rate of “nerve injury and pain” varied between 0.1-5.3 percent for retropubic SUI procedures; 0.8-30.8 percent for transobturator SUI procedures, 1.1-4.1 percent for mini-sling SUI procedures; 6.0-39.1 percent for transvaginal POP repair procedures; and 14.9 percent for one study describing sacrocolpoplexy procedures.

    FDA presented a summary of the information contained in the Executive Summary during the February 26, 2016, panel meeting (Ref. 2). The Panel then discussed whether urogynecologic surgical mesh instrumentation should be reclassified, and if so, whether it should be reclassified from class I (general controls) to class II (special controls) or class III (premarket approval) (Ref. 3). The Panel discussed a variety of potential causes for the perioperative adverse events identified by FDA (e.g., instrumentation design, surgeon error, and surgeon experience). The Panel consensus was that the risks to health of urogynecologic surgical mesh instrumentation that FDA identified in the proposed order and Executive Summary (i.e., perioperative risks; damage to blood vessels, nerves, connective tissue, and other structures; adverse tissue reaction; and infection) was a complete and accurate list.

    The Panel agreed with FDA that the device is not purported or represented for a use in supporting or sustaining human life, or for a use which is of substantial importance in preventing impairment of human health, or presents a potential unreasonable risk of illness or injury. In light of this assessment, the Panel consensus was that urogynecologic surgical mesh instrumentation did not meet the definition of a class III device. The Panel also agreed with FDA that general controls alone are not sufficient to provide reasonable assurance of safety and effectiveness for the device, and that there is sufficient information to establish special controls to provide such assurance. When considering the specific special controls proposed by FDA, two Panel members requested that an additional special control be the submission of clinical data. However, after additional discussion, the Panel unanimously agreed that the special controls proposed by FDA, which did not include the submission of clinical data, would appropriately mitigate the risks to health of this device. As such, the Panel recommended that urogynecologic surgical mesh instrumentation be reclassified from class I (general controls) exempt from premarket notification to class II (special controls).

    II. Key Changes From Proposed Order

    In the final order, FDA is modifying two of the special controls included in the proposed order. First, FDA is revising § 884.4910(b)(2) (21 CFR 884.4910(b)(2)) to require a demonstration that the device, if reusable, can be adequately reprocessed. Reprocessing validation will help to ensure that reusable urogynecologic surgical mesh instrumentation is fit for subsequent use after being previously used or contaminated. The validated processes are designed to remove soil and contaminants by cleaning and to inactivate microorganisms by disinfection or sterilization. Although FDA recognized in the proposed order that “the risk of infection due to inadequate sterilization and/or reprocessing instructions/procedures can be mitigated through sterilization validation testing and the inclusion of validated reprocessing instructions in the device labeling,” proposed § 884.4910(b)(2) addressed sterilization only. FDA believes this revised special control will help to mitigate the risks posed by infection from reusable urogynecologic surgical mesh instrumentation.

    Second, FDA is revising § 884.4910(b)(4) to require that non-clinical performance testing demonstrate that the device: (1) Meets all design specifications and performance requirements and (2) performs as intended under anticipated conditions of use. In the proposed order, FDA specified that “[b]ench and/or cadaver testing must demonstrate safety and effectiveness in expected-use conditions.” FDA has revised the reference to “bench and/or cadaver testing” to “non-clinical performance testing” to allow for additional types of non-clinical testing that will also mitigate the corresponding risks to health. FDA is making other revisions to this provision as noted previously to provide further clarity.

    III. Public Comments in Response to the Proposed Order

    FDA received comments regarding the proposed reclassification of urogynecologic surgical mesh instrumentation from class I to class II. A summary of the comments and FDA's responses are provided in this section. Certain comments are grouped together under a single number because the subject matter is similar. The number assigned to each one is purely for organizational purposes and does not signify the comment's value, importance, or the order in which it was received.

    (Comment 1) Several comments supported reclassification of urogynecologic surgical mesh instrumentation, with some comments supporting reclassification into class II and others supporting reclassification into class III.

    (Response 1) FDA agrees with comments supporting reclassification of urogynecologic surgical mesh instrumentation into class II and disagrees with comments that support reclassification into class III. Based on information set forth in the proposed order (79 FR 24634), FDA tentatively concluded in that order that certain specified special controls, in addition to general controls, were necessary to mitigate the risks to health for urogynecologic surgical mesh instrumentation, and as such, proposed to reclassify the device from class I to class II (79 FR 24634 at 24640). FDA continues to believe that there is sufficient information to establish special controls to provide a reasonable assurance of safety and effectiveness for this device, and thus does not believe this device should be reclassified into class III.

    FDA's new, more comprehensive, adverse event analysis provides further support for the risks to health of this device that FDA identified in the proposed order (see section I; Ref. 1), and the special controls established by FDA are specifically intended to mitigate those risks. For example, FDA's new MDR analysis revealed that failures of urogynecologic surgical mesh instrumentation (e.g., needle detachments, breaks, or bends; covering sheath breaks or tears) occur during both SUI and POP procedures, and these failures are associated with perioperative adverse events. The special control established at § 884.4910(b)(4) addresses these failures and the risk of perioperative injuries by requiring a demonstration that the device meets all design specifications and performance requirements.

    Based on all of this information, the Panel consensus was that urogynecologic surgical mesh instrumentation meets the statutory definition of a class II device and does not meet the statutory definition of a class III device (see section I; Ref. 3).

    Because FDA has determined that general controls alone are not sufficient to provide a reasonable assurance of safety and effectiveness for this device, and there is sufficient information to establish special controls to provide such an assurance, FDA is reclassifying the device into class II.

    (Comment 2) One comment requested that urogynecologic surgical mesh instrumentation have the same classification as the surgical mesh with which it is indicated to be used.

    (Response 2) Surgical mesh indicated for urogynecologic procedures is a class III device when it is indicated for transvaginal POP repair (see 81 FR 354; § 884.5980) and a class II device when it is indicated for all other urogynecologic procedures, such as sacrocolpopexy and treatment of female SUI (see § 878.3300). FDA characterized the risk profile of different kinds of urogynecologic surgical mesh instrumentation by analyzing adverse events associated with the use of this specialized instrumentation and stratifying them by the type of urogynecologic procedure for which they were used. The results indicate that the risk profile of urogynecologic surgical mesh instrumentation used with class III surgical mesh during transvaginal POP repair is comparable to that of urogynecologic surgical mesh instrumentation used with class II surgical mesh during other kinds of urogynecologic procedures (see section I; Ref. 1). Urogynecologic surgical mesh instrumentation used in all types of urogynecologic surgical mesh procedures appears to have a similar risk-benefit profile, and therefore FDA believes these devices should have the same classification.

    Moreover, as previously discussed, based on information included in the proposed order (79 FR 24634), FDA's comprehensive adverse event analysis (see Ref. 1), and the Panel's deliberations and determinations, FDA has determined that urogynecologic surgical mesh instrumentation is a class II device because general controls alone cannot provide a reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide such assurance. As such, FDA is reclassifying these devices from class I to class II.

    (Comment 3) One comment stated that the scope of the urogynecologic surgical mesh instrumentation reclassification was unclear, and it could be interpreted that the reclassification applies only to instrumentation used for transvaginal POP repair rather than for instrumentation used for any urogynecologic surgical mesh procedure.

    (Response 3) FDA disagrees that the scope of the instrumentation reclassification was unclear in the May 1, 2014, proposed order. FDA included the description in the identification of urogynecologic surgical mesh instrumentation in proposed § 884.4910(a) stating that surgical instrumentation for use with surgical mesh for urogynecological procedures is a prescription device used to aid in insertion, placement, fixation, or anchoring of surgical mesh for procedures including transvaginal POP repair, sacrocolpopexy (transabdominal POP repair), and treatment of female SUI. This description, which is not substantively changing in the final order, makes clear that all urogynecologic surgical mesh instrumentation—whether used for transvaginal POP repair or other urogynecologic surgical mesh procedures—falls under this reclassification.

    (Comment 4) One comment stated that data provided in the proposed order to support the instrumentation reclassification was based only on POP procedures, that valid scientific evidence had not been provided to support the instrumentation reclassification, and that no evidence was provided to support the risks that were identified in the proposed order.

    (Response 4) First, FDA acknowledges that the data provided to support the instrumentation reclassification in the May 1, 2014, proposed order derived only from surgical mesh procedures indicated for POP. FDA subsequently conducted a new, more comprehensive analysis of perioperative adverse events associated with a variety of SUI procedures (retropubic, transobturator, mini-sling) and POP procedures (transvaginal repair and sacrocolpoplexy) by reviewing adverse events included in the relevant, scientific, published literature and adverse events submitted to the MDR database. Based on this analysis, FDA determined that perioperative adverse events occur during all types of SUI and POP procedures (see section I; Ref. 1). FDA also discovered that in the published literature, the highest reported rates of “organ perforation and injury,” “vascular injury and bleeding,” and “nerve injury and pain” were distributed across different types of urogynecologic surgical mesh procedures rather than only occurring during one specific type, such as transvaginal POP repair. FDA believes these results provide further support for the reclassification of these devices into class II, and also supports the scope of this reclassification, which encompasses specialized instrumentation used during all types of urogynecologic surgical mesh procedures. After presenting the proposed order and this new information to the Panel at the February 26, 2016, meeting, the Panel recommended that urogynecologic surgical mesh instrumentation be reclassified from class I (general controls) exempt from premarket notification to class II (special controls) (Ref. 3). FDA agrees with the Panel's recommendations and is reclassifying these devices from class I to class II.

    Second, FDA disagrees that valid scientific evidence was not provided in the May 1, 2014, proposed order to support reclassification of urogynecologic surgical mesh instrumentation. Valid scientific evidence is defined in § 860.7(c)(2) as evidence from well-controlled investigations, other types of studies and case histories conducted by qualified experts, and reports of significant human experience with a marketed device, from which it can fairly and responsibly be concluded by qualified experts that there is reasonable assurance of the safety and effectiveness of a device under its conditions of use. (See also section 513 of the FD&C Act). In the proposed order, FDA reviewed perioperative adverse events included in published studies of surgical mesh used during POP procedures. These publications constitute “valid scientific evidence” because they are controlled studies (Refs. 7-10, 12, 14) and collections of well-documented case histories conducted by qualified experts (Refs. 4-6, 11, 13).

    Finally, FDA disagrees that no evidence was provided to support the risks of urogynecologic surgical mesh instrumentation identified in the proposed order. In the proposed order, FDA specifically referenced clinical studies and systematic literature reviews in the published literature that included reports of perioperative adverse events (e.g., bleeding, hematoma, and blood loss; organ perforation; and neuromuscular problems) to support the proposed reclassification. Moreover, the risks of “perioperative injury” and “pelvic pain and neuromuscular problems” were also identified during FDA's search of the MAUDE database. As discussed in the proposed order, 843 reports in the MAUDE database analysis related to bleeding, hematoma, and blood loss; 42 reports related to organ perforation; and 196 reports of neuromuscular problems. FDA acknowledges that no data were provided to support the identified risks of “infection” and “adverse tissue reaction.” Although there are many possible causes for “infection” and “adverse tissue reaction” during a urogynecologic surgical mesh procedure, as FDA noted in the proposed order (see 79 FR 24634 at 24639), FDA believes “infection” and “adverse tissue reaction” are general risks that apply to all devices that contact the patient and need to be used sterile.

    As discussed throughout this document, FDA subsequently conducted a more comprehensive search of the relevant, scientific, published literature and MDR database to evaluate the risks of urogynecologic surgical mesh instrumentation. A summary of the findings from these reviews is in the Executive Summary (Ref. 1) and was provided in our presentation to the Panel on February 26, 2016 (Ref. 2). The findings from the literature review—which were confirmed by the MDR database review—provide further support for the risks identified and discussed in the proposed order.

    Based on this information, the Panel consensus was that the four risks to health of urogynecologic surgical mesh instrumentation that FDA identified in the proposed order is a complete and accurate list (Ref. 3).

    (Comment 5) One comment, which was submitted after the proposed order issued and before the Panel meeting was held, stated that the proposed order should be withdrawn until Panel input was obtained.

    (Response 5) FDA disagrees. The process followed by FDA in reclassifying this device is in accordance with section 513(e)(1) of the FD&C Act. This provision requires, in relevant part, that issuance of a final administrative order reclassifying a device be preceded by a proposed order and a meeting of a device classification panel. There is no requirement that a proposed order be “withdrawn” after its issuance but before the Panel meeting, and the rationale for doing so is not clear to FDA.

    IV. The Final Order

    Under section 513(e) of the FD&C Act, FDA is adopting its findings as published in the proposed order for urogynecologic surgical mesh instrumentation, with the modifications discussed in section II of this document. For the reasons set forth in the proposed order and in this document, FDA concludes that general controls are insufficient to provide a reasonable assurance of safety and effectiveness for urogynecologic surgical mesh instrumentation, and there is sufficient information to establish special controls to provide such assurance.

    FDA is issuing this final order to reclassify urogynecologic surgical mesh instrumentation from class I (general controls) exempt from premarket notification to class II (special controls) and subject to premarket notification, and identifying them as “specialized surgical instrumentation for use with urogynecologic surgical mesh.” FDA is also establishing special controls, which are set forth in § 884.4910(b)(1) through (5).

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness of urogynecologic surgical mesh instrumentation, and therefore, this device is not exempt from premarket notification requirements.

    V. Implementation Strategy

    The order is effective January 6, 2017.

    Manufacturers of urogynecologic surgical mesh instrumentation that have not been legally marketed prior to January 6, 2017, must obtain 510(k) clearance and demonstrate compliance with the special controls included in this final order before marketing the device.

    Manufacturers of urogynecologic surgical mesh instrumentation that have been legally marketed prior to January 6, 2017, must obtain 510(k) clearance and demonstrate compliance with the special controls included in this final order by January 8, 2018, for those devices if they wish to continue offering them for sale.

    VI. 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.

    VII. Paperwork Reduction Act of 1995

    This final order refers to previously approved collections of information found in 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 21 CFR part 807, subpart E, have been approved under OMB control number 0910-0120 and the collections of information under 21 CFR part 801 have been approved under OMB control number 0910-0485.

    VIII. Codification of Orders

    Prior to the amendments by FDASIA, section 513(e) of the FD&C Act provided for FDA to issue regulations to reclassify devices. Although section 513(e) of the FD&C Act as amended requires FDA to issue final orders rather than regulations, FDASIA also provides for FDA to revoke previously issued regulations by order. FDA will continue to codify classifications and reclassifications in the Code of Federal Regulations (CFR). Changes resulting from final orders will appear in the CFR as changes to codified classification determinations or as newly codified orders. Therefore, under section 513(e)(1)(A)(i) of the FD&C Act, as amended by FDASIA, in this final order, we are codifying the reclassification of specialized surgical instrumentation for use with urogynecologic surgical mesh into class II in § 884.4910.

    IX. References

    The following references are on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are 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. Executive Summary of the February 26, 2016, meeting of the Gastroenterology-Urology Devices Panel (available at http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/MedicalDevices/MedicalDevicesAdvisoryCommittee/Gastroenterology-UrologyDevicesPanel/UCM487224.pdf).

    2. FDA presentation to Panel members at the February 26, 2016, meeting of the Gastroenterology-Urology Devices Panel (available at http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/MedicalDevices/MedicalDevicesAdvisoryCommittee/Gastroenterology-UrologyDevicesPanel/UCM490205.pdf).

    3. Transcript of the February 26, 2016, meeting of the Gastroenterology-Urology Devices Panel (available at http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/MedicalDevices/MedicalDevicesAdvisoryCommittee/Gastroenterology-UrologyDevicesPanel/UCM491862.pdf).

    4. Caquant, F., et al., “Safety of Trans Vaginal Mesh Procedure: Retrospective Study of 684 Patients,” Journal of Obstetrics and Gynecology Research, 34(4):449-456, 2008.

    5. Maher, C.F., et al., “Surgical Management of Pelvic Organ Prolapse in Women,” Cochrane Database of Systematic Review, 4: CD004014, 2010.

    6. Diwadkar, G.B., et al., “Complication and Reoperation Rates After Apical Vaginal Prolapse Surgical Repair: A Systematic Review,” Obstetrics & Gynecology, 113(2 Pt. 1):67-73, 2009.

    7. Maher, C.F., et al., “Laparoscopic Sacral Colpopexy Versus Total Vaginal Mesh for Vaginal Vault Prolapse: A Randomized Trial,” American Journal of Obstetrics & Gynecology, 204(4):360.e1-360.e7, 2011.

    8. Altman, D., et al., “Anterior Colporrhaphy Versus Transvaginal Mesh for Pelvic-Organ Prolapse,” New England Journal of Medicine, 364:1826-1836, 2011.

    9. Iglesia, C.B., et al., “Vaginal Mesh for Prolapse: A Randomized Controlled Trial,” Obstetrics & Gynecology, 116(2 Pt. 1):293-303, 2010.

    10. Withagen, M.I., et al., “Trocar-Guided Mesh Compared With Conventional Vaginal Repair in Recurrent Prolapse: A Randomized Controlled Trial,” Obstetrics & Gynecology, 117(2 Pt. 1):242-250, 2011.

    11. Sung, V.W., et al., Society of Gynecologic Surgeons Systematic Review Group. “Graft Use in Transvaginal Pelvic Organ Prolapse and Urinary Incontinence,” Obstetrics & Gynecology, 112(5):1131-1142, 2008.

    12. Hiltunen, R., et al., “Low-Weight Polypropylene Mesh for Anterior Vaginal Wall Prolapse: A Randomized Controlled Trial,” Obstetrics & Gynecology, 110(2 Pt. 2):455-462, 2007.

    13. Jia, X., et al., “Efficacy and Safety of Using Mesh or Grafts in Surgery for Anterior and/or Posterior Vaginal Wall Prolapse: Systematic Review and Meta-Analysis,” British Journal of Obstetrics and Gynecology, 115:1350-1361, 2008.

    14. Sivaslioglu, A.A., E. Unlubilgin, and I. Dolen, “A Randomized Comparison of Polypropylene Mesh Surgery With Site-Specific Surgery in the Treatment of Cystocoele,” International Urogynecology Journal and Pelvic Floor Dysfunction, 19(4):467-471, 2008.

    List of Subjects in 21 CFR Part 884

    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 884 is amended as follows:

    PART 884—OBSTETRICAL AND GYNECOLOGICAL DEVICES 1. The authority citation for part 884 continues to read as follows: Authority:

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

    2. Add § 884.4910 to subpart E to read as follows:
    § 884.4910 Specialized surgical instrumentation for use with urogynecologic surgical mesh.

    (a) Identification. Specialized surgical instrumentation for use with urogynecologic surgical mesh is a prescription device specifically intended for use as an aid in the insertion, placement, fixation, or anchoring of surgical mesh during urogynecologic procedures. These procedures include transvaginal pelvic organ prolapse repair, sacrocolpopexy (transabdominal pelvic organ prolapse repair), and treatment of female stress urinary incontinence. Examples of specialized surgical instrumentation include needle passers and trocars, needle guides, fixation tools, and tissue anchors. This device is not a manual gastroenterology-urology surgical instrument and accessories (§ 876.4730) or a manual surgical instrument for general use (§ 878.4800).

    (b) Classification. Class II (special controls). The special controls for specialized surgical instrumentation for use with urogynecologic surgical mesh are:

    (1) The device must be demonstrated to be biocompatible;

    (2) The device must be demonstrated to be sterile and, if reusable, it must be demonstrated that the device can be adequately reprocessed;

    (3) Performance data must support the shelf life of the device by demonstrating package integrity and device functionality over the requested shelf life;

    (4) Non-clinical performance testing must demonstrate that the device meets all design specifications and performance requirements, and that the device performs as intended under anticipated conditions of use; and

    (5) Labeling must include:

    (i) Information regarding the mesh design that may be used with the device;

    (ii) Detailed summary of the clinical evaluations pertinent to use of the device;

    (iii) Expiration date; and

    (iv) Where components are intended to be sterilized by the user prior to initial use and/or are reusable, validated methods and instructions for sterilization and/or reprocessing of any reusable components.

    Dated: December 28, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-31862 Filed 1-5-17; 8:45 am] BILLING CODE 4164-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2016-0396; FRL-9957-80-Region 5] Air Plan Approval; Ohio; Redesignation of the Cleveland, Ohio Area to Attainment of the 2008 Ozone Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) finds that the Cleveland-Akron-Lorain, Ohio area (Cleveland area) is attaining the 2008 ozone National Ambient Air Quality Standard (NAAQS or standard) and is redesignating the area to attainment for the 2008 ozone NAAQS, because the area meets the statutory requirements for redesignation under the Clean Air Act (CAA). The Cleveland area includes Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage, and Summit counties. EPA is also approving, as a revision to the Ohio State Implementation Plan (SIP), the state's plan for maintaining the 2008 ozone standard through 2030 in the Cleveland area. Finally, EPA finds adequate and is approving the state's 2020 and 2030 volatile organic compound (VOC) and oxides of nitrogen (NOX) Motor Vehicle Emission Budgets (MVEBs) for the Cleveland area. The Ohio Environmental Protection Agency (Ohio EPA) submitted the SIP revision and redesignation request on July 6, 2016.

    DATES:

    This final rule is effective January 6, 2017.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2016-0396. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information 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 either through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Jenny Liljegren, Physical Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6832, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

    I. What is being addressed in this document?

    This rule takes action on the July 6, 2016 submission from Ohio EPA requesting redesignation of the Cleveland area to attainment for the 2008 ozone standard. The background for today's action is discussed in detail in EPA's proposal, dated October 17, 2016 (81 FR 71444). In that rulemaking, we noted that, under EPA regulations at 40 CFR part 50, the 2008 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.075 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. (See 40 CFR 50.15 and appendix P to 40 CFR part 50.) Under the CAA, EPA may redesignate nonattainment areas to attainment if sufficient complete, quality-assured data are available to determine that the area has attained the standard and if it meets the other CAA redesignation requirements in section 107(d)(3)(E). The proposed rule, dated October 17, 2016, provides a detailed discussion of how Ohio has met these CAA requirements.

    As discussed in the proposed rule, quality-assured and certified monitoring data for 2013-2015 and preliminary data for 2016 show that the Cleveland area has attained and continues to attain the 2008 ozone standard. In the maintenance plan submitted for the area, Ohio has demonstrated that the ozone standard will be maintained in the area through 2030. Finally, Ohio has adopted 2020 and 2030 VOC and NOX MVEBs for the Cleveland area that are supported by Ohio's maintenance demonstration.

    II. What comments did we receive on the proposed rule?

    EPA provided a 30-day review and comment period for the October 17, 2016, proposed rule. The comment period ended on November 16, 2016. During the comment period, comments in support of the action were submitted on behalf of the Ohio Utility Group and its member companies. We received no adverse comments on the proposed rule.

    III. What action is EPA taking?

    EPA finds that the Cleveland nonattainment area is attaining the 2008 ozone standard, based on quality-assured and certified monitoring data for 2013-2015 and that the Ohio portion of this area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus changing the legal designation of the Cleveland area from nonattainment to attainment for the 2008 ozone standard. EPA is also approving, as a revision to the Ohio SIP, the state's maintenance plan for the area. The maintenance plan is designed to keep the Cleveland area in attainment of the 2008 ozone NAAQS through 2030. Finally, EPA finds adequate and is approving the newly-established 2020 and 2030 MVEBs for the Cleveland area.

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

    IV. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 7, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Volatile organic compounds.

    40 CFR Part 81

    Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: December 21, 2016. Robert A. Kaplan Acting Regional Administrator, Region 5. Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. Section 52.1885 is amended by adding paragraph (pp)(3) to read as follows:
    § 52.1885 Control strategy: Ozone.

    (pp) * * *

    (3) Approval—On July 6, 2016, the Ohio Environmental Protection Agency submitted a request to redesignate the Cleveland area to attainment of the 2008 ozone NAAQS. As part of the redesignation request, the State submitted a maintenance plan as required by section 175A of the Clean Air Act. Elements of the section 175 maintenance plan include a contingency plan and an obligation to submit a subsequent maintenance plan revision in eight years as required by the Clean Air Act. The 2020 motor vehicle emissions budgets for the Cleveland area are 38.85 tons per summer day (TPSD) for VOC and 61.56 TPSD for NOX. The 2030 motor vehicle emissions budgets for the Cleveland area are 30.80 TPSD for VOC and 43.82 TPSD for NOX.

    PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 3. The authority citation for part 81 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    4. Section 81.336 is amended by revising the entry for Cleveland-Akron-Lorain, OH in the table entitled “Ohio-2008 8-Hour Ozone NAAQS (Primary and secondary)” to read as follows:
    § 81.336 Ohio. Ohio—2008 8-Hour Ozone NAAQS [Primary and secondary] Designated area Designation Date 1 Type Classification Date 1 Type *         *         *         *         *         *         * Cleveland, OH: 2 Ashtabula County, Cuyahoga County, Geauga County, Lake County, Lorain County, Medina County, Portage County, Summit County 1/6/2017 Attainment. *         *         *         *         *         *         * 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.
    [FR Doc. 2016-31634 Filed 1-5-17; 8:45 am] BILLING CODE 6560-50-P
    CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 45 CFR Parts 1230 and 2554 RIN 3045-AA67 Annual Civil Monetary Penalties Inflation Adjustment AGENCY:

    Corporation for National and Community Service.

    ACTION:

    Interim final rule.

    SUMMARY:

    The Corporation for National and Community Service (CNCS) is updating its regulations to reflect required annual inflation-related increases to the civil monetary penalties in its regulations, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

    DATES:

    Effective date: This rule is effective January 15, 2017.

    Comment due date: Technical comments may be submitted until February 6, 2017.

    ADDRESSES:

    You may send your comments electronically through the Federal government's one-stop rulemaking Web site at www.regulations.gov. Also, you may mail or deliver your comments to Phyllis Green, Executive Assistant, Office of General Counsel, at the Corporation for National and Community Service, 250 E Street SW., Washington, DC 20525. Due to continued delays in CNCS's receipt of mail, we strongly encourage comments to be submitted online electronically. The TDD/TTY number is 800 833-3722. You may request this notice in an alternative format for the visually impaired.

    FOR FURTHER INFORMATION CONTACT:

    Phyllis Green, Executive Assistant, Office of General Counsel, at 202-606-6709 or email to [email protected] Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION: I. Background

    The Corporation for National and Community Service (CNCS) is a federal agency that engages more than five million Americans in service through its AmeriCorps, Senior Corps, Social Innovation Fund, and Volunteer Generation Fund programs to further its mission to improve lives, strengthen communities, and foster civic engagement through service and volunteering. For more information, visit NationalService.gov.

    The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (the “Act”), which is intended to improve the effectiveness of civil monetary penalties and to maintain the deterrent effect of such penalties, requires agencies to adjust the civil monetary penalties for inflation annually.

    II. Method of Calculation

    CNCS has two civil monetary penalties in its regulations. A civil monetary penalty under the Act is a penalty, fine, or other sanction that is for a specific monetary amount as provided by Federal law or has a maximum amount provided for by Federal law and is assessed or enforced by an agency pursuant to Federal law and is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. (See 28 U.S.C. 2461 note).

    The inflation adjustment for each applicable civil monetary penalty is determined using the percent increase in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October of the year in which the amount of each civil money penalty was most recently established or modified. In the December 16, 2016, OMB Memo for the Heads of Executive Agencies and Departments, M-17-11, Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, OMB published the multiplier for the required annual adjustment. The cost-of-living adjustment multiplier for 2017, based on the CPI-U for the month of October 2016, not seasonally adjusted, is 1.01636.

    CNCS identified two civil penalties in its regulations: (1) The penalty associated with Restrictions on Lobbying (45 CFR 1230.400) and (2) the penalty associated with the Program Fraud Civil Remedies Act (45 CFR 2554.1).

    The civil monetary penalties related to Restrictions on Lobbying (Section 319, Pub. L. 101-121; 31 U.S.C. 1352) range from $18,936 to $189,361. Using the 2017 multiplier, the new range of possible civil monetary penalties is from $19,246 to $192,459.

    The Program Fraud Civil Remedies Act of 1986 (Pub. L. 99-509) civil monetary penalty has an upper limit of $10,781. Using the 2017 multiplier, the new upper limit of the civil monetary penalty is $10,957.

    III. Summary of Final Rule

    This final rule adjusts the civil monetary penalty amounts related to Restrictions on Lobbying (45 CFR 1230.400) and the Program Fraud Civil Remedies Act of 1986 (45 CFR 2554.1). The range of civil monetary penalties related to Restrictions on Lobbying increase from “$18,936 to $189,361” to “$19,246 to $192,459.” The civil monetary penalties for the Program Fraud Civil Remedies Act of 1986 increase from “up to $10,781” to “up to $10,957.”

    IV. Regulatory Procedures A. Determination of Good Cause for Publication Without Notice and Comment

    CNCS finds, under 5 U.S.C. 553(b)(3)(B), that there is good cause to except this rule from the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b). Because CNCS is implementing a final rule pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires CNCS to update its regulations based on a prescribed formula, CNCS has no discretion in the nature or amount of the change to the civil monetary penalties. Therefore, notice and comment for these proscribed updates is impracticable and unnecessary. As an interim final rule, no further regulatory action is required for the issuance of this legally binding rule. If you would like to provide technical comments, however, they may be submitted until February 6, 2017.

    B. Review Under Procedural Statutes and Executive Orders

    CNCS has determined that making technical changes to the amount of civil monetary penalties in its regulations does not trigger any requirements under procedural statutes and Executive Orders that govern rulemaking procedures.

    V. Effective Date

    This rule is effective January 15, 2017. The adjusted civil penalty amounts apply to civil penalties assessed on or after January 15, 2017, when the violation occurred after November 2, 2015. If the violation occurred prior to November 2, 2015, or a penalty was assessed prior to August 1, 2016, the pre-adjustment civil penalty amounts in effect prior to August 1, 2106, will apply.

    List of Subjects 45 CFR Part 1230

    Government contracts, Grant programs, Loan programs, Lobbying, Penalties, Reporting and recordkeeping requirements.

    45 CFR Part 2554

    Claims, Fraud, Organization and functions (Government agencies), Penalties.

    For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapters XII and XXV, title 45 of the Code of Federal Regulations as follows:

    PART 1230—NEW RESTRICTIONS ON LOBBYING 1. The authority citation for part 1230 continues to read as follows: Authority:

    Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L. 93-113; 42 U.S.C. 4951, et seq.; 42 U.S.C. 5060.

    § 1230.400 [Amended]
    2. Amend § 1230.400: a. In paragraphs (a), (b), and (e), by removing “$18,936” and adding in its place “$19,246” each place it appears. b. In paragraphs (a), (b), and (e), by removing “$189,361” and adding in its place “$192,459” each place it appears. Appendix A to Part 1230 [Amended] 3. Amend appendix A to part 1230 by: a. Removing “$18,936” and adding in its place “$19,246” each place it appears. b. Removing “$189,361” and adding in its place “$192,459” each place it appears. PART 2554—PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS 4. The authority citation for part 2554 continues to read as follows: Authority:

    Pub. L. 99-509, Secs. 6101-6104, 100 Stat. 1874 (31 U.S.C. 3801-3812); 42 U.S.C. 12651c-12651d.

    § 2554.1 [Amended]
    5. Amend § 2554.1 by removing “$10,781” in paragraph (b) and adding in its place “$10,957.” Dated: December 28, 2016. Jeremy Joseph, General Counsel.
    [FR Doc. 2016-31897 Filed 1-5-17; 8:45 am] BILLING CODE 6050-28-P
    82 4 Friday, January 6, 2017 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket Number EERE-2014-BT-STD-0048] RIN 1904-AD37 Energy Conservation Program: Energy Conservation Standards for Consumer Central Air Conditioners and Heat Pumps AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products, including consumer central air conditioners and heat pumps. EPCA also requires the U.S. Department of Energy (DOE) to periodically determine whether more-stringent, amended standards would be technologically feasible and economically justified, and would save a significant amount of energy. In this proposed rule, DOE proposes to amend the energy conservation standards for consumer central air conditioners and heat pumps identical to those set forth in a direct final rule published elsewhere in this Federal Register. If DOE receives an adverse comment and determines that such comment may provide a reasonable basis for withdrawing the direct final rule, DOE will publish a notice withdrawing the direct final rule and will proceed with this proposed rule.

    DATES:

    DOE will accept comments, data, and information regarding the proposed standards no later than April 26, 2017.

    Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the ADDRESSES section before February 6, 2017.

    ADDRESSES:

    Instructions: Any comments submitted must identify the proposed rule for energy conservation standards for consumer central air conditioners and heat pumps, and provide docket number EERE-2014-BT-STD-0048 and/or regulatory information number (RIN) 1904-AD37. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected] Include the docket number and/or RIN in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the use of special characters or any form of encryption.

    3. Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC, 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    4. Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L' Enfant Plaza, SW., 6th Floor, Washington, DC, 20024. Telephone: (202) 586-6636. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document (“Public Participation”).

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to [email protected]

    EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Division at [email protected] before February 6, 2017. Please indicate in the “Subject” line of your email the title and Docket Number of this proposed rule.

    Docket: The dockets, which include Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the dockets are listed in the www.regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

    A link to the docket Web page for consumer central air conditioners and heat pumps can be found at: www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/72. The www.regulations.gov Web page contains instructions on how to access all documents, including public comments, in the docket.

    For further information on how to submit a comment or review other public comments and the docket, contact the Appliance and Equipment Standards staff at (202) 586-6636 or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Mr. Antonio Bouza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-4563. Email: [email protected]

    Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 287-6307. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction A. Authority B. Background II. Proposed Standards 1. Benefits and Burdens of TSLs Considered for Central Air Conditioner and Heat Pump Standards 2. Summary of Benefits and Costs (Annualized) of the Proposed Amended Standards III. Public Participation A. Submission of Comments IV. Procedural Issues and Regulatory Review V. Approval of the Office of the Secretary I. Introduction A. Authority

    Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances (collectively referred to as “covered products”), which includes the consumer central air conditioners and heat pumps that are the subject of this rulemaking. (42 U.S.C. 6292(a)(3))

    Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling, and DOE implements the remainder of the program. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product prior to the adoption of a new or amended energy conservation standard. (42 U.S.C. 6295(o)(3)(A) and (r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for central air conditioners and heat pumps appear at title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix M and M1.

    The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100-12) included amendments to EPCA that established the original energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(1)-(2)) EPCA, as amended, also requires DOE to conduct two cycles of rulemakings to determine whether to amend the energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(3)) The first cycle culminated in a final rule published in the Federal Register on August 17, 2004 (the August 2004 Rule), which prescribed energy conservation standards for central air conditioners and heat pumps manufactured or imported on and after January 23, 2006. 69 FR 50997. DOE completed the second of the two rulemaking cycles by issuing a direct final rule on June 6, 2011 (2011 Direct Final Rule), which was published in the Federal Register on June 27, 2011. 76 FR 37408. The 2011 Direct Final Rule (June 2011 DFR) amended standards for central air conditioners and heat pumps manufactured on or after January 1, 2015.

    EPCA requires DOE to periodically review its already established energy conservation standards for a covered product. Not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed standards. (42 U.S.C. 6295(m)(1)) Pursuant to this requirement, the next review that DOE would need to conduct must occur no later than six years from the issuance of the 2011 direct final rule. This direct final rule fulfills that requirement.

    DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including consumer central air conditioners and heat pumps. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and (3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including consumer central air conditioners and heat pumps, if no test procedure has been established for the product, or (2) if DOE determines by rule that the proposed standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B)) In deciding whether a proposed standard is economically justified, after receiving comments on the proposed standard, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination by, to the greatest extent practicable, considering the following seven factors:

    (1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;

    (2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;

    (3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;

    (4) Any lessening of the utility or the performance of the covered products likely to result from the standard;

    (5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

    (6) The need for national energy and water conservation; and

    (7) Other factors the Secretary of Energy (Secretary) considers relevant.

    (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))

    DOE notes that the current energy conservation standards for central air conditioners and heat pumps (set forth at 10 CFR 430.32(c)) contain requirements for seasonal energy efficiency ratio (SEER), heating seasonal performance factor (HSPF), energy efficiency ratio (EER), and average off mode power consumption. Standards based upon the latter two metrics were newly adopted in the June 27, 2011 DFR for the reasons stated in that rulemaking. 76 FR 37408. As discussed in section II.B.1 and section II.B.3 of this proposed rule, DOE has chosen to specify performance standards based on EER and SEER for only the southwest region of the country. Pursuant to its mandate under 42 U.S.C. 6295(m)(1), this DOE rulemaking has considered amending the existing energy conservation standards for central air conditioners and heat pumps, and DOE is adopting the amended standards contained in this direct final rule.

    EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) or performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))

    Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) DOE generally considers these criteria as part of its analysis but consistently conducts a more thorough analysis of a given standard's projected impacts that extends beyond this presumption.

    Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. In this case, DOE must specify a different standard level for a type or class of covered product that has the same function or intended use, if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature that other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate. Id. Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))

    Under 42 U.S.C. 6295(o)(6), which was added to EPCA by section 306(a) of the Energy Independence and Security Act of 2007 (EISA 2007; Pub. L. 110-140), DOE may consider the establishment of regional standards for central air conditioners and heat pumps. Specifically, in addition to a base national standard for a product, DOE may for central air conditioners and heat pumps, establish one or two more-restrictive regional standards. (42 U.S.C. 6295(o)(6)(B)) The regions must include only contiguous States (with the exception of Alaska and Hawaii, which may be included in regions with which they are not contiguous), and each State may be placed in only one region (i.e., an entire State cannot simultaneously be placed in two regions, nor can it be divided between two regions). (42 U.S.C. 6295(o)(6)(C)) Further, DOE can establish the additional regional standards only: (1) Where doing so would produce significant energy savings in comparison to a single national standard, (2) if the regional standards are economically justified, and (3) after considering the impact of these standards on consumers, manufacturers, and other market participants, including product distributors, dealers, contractors, and installers. (42 U.S.C. 6295(o)(6)(D))

    Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).

    Pursuant to further amendments to EPCA contained in EISA 2007, Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) The SEER and HSPF metrics for central air conditioners and heat pumps already account for standby mode energy use, and the current standards include limits on off mode energy use.

    As mentioned previously, EISA 2007 amended EPCA, in relevant part, to grant DOE authority to issue a final rule (hereinafter referred to as a “direct final rule”) establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates), as determined by the Secretary, that contains recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). (42 U.S.C. 6295(p)(4)) Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly-submitted recommendation for an energy or water conservation standard satisfies 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable.

    A notice of proposed rulemaking (NOPR) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule, and DOE must provide a public comment period of at least 110 days on this proposal. (42 U.S.C. 6295(p)(4)(A)-(B)) While DOE typically provides a comment period of 60 days on proposed standards, in this case, DOE provides a comment period of the same length as the comment period on the direct final rule—i.e. 110 days. Based on the comments received during this period, the direct final rule will either become effective, or DOE will withdraw it not later than 120 days after its issuance if (1) one or more adverse comments is received, and (2) DOE determines that those comments, when viewed in light of the rulemaking record related to the direct final rule, provide a reasonable basis for withdrawal of the direct final rule under 42 U.S.C. 6295(o) and for DOE to continue this rulemaking under the NOPR. (42 U.S.C. 6295(p)(4)(C)) Receipt of an alternative joint recommendation may also trigger a DOE withdrawal of the direct final rule in the same manner. Id.

    Typical of other rulemakings, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, the substance of any adverse comment(s) received will be weighed against the anticipated benefits of the jointly-submitted recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that, to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. Nevertheless, if the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously-published NOPR. DOE must publish in the Federal Register the reason why the direct final rule was withdrawn. Id.

    B. Background

    According to the Energy Policy and Conservation Act's 6-year review requirement (42 U.S.C. 6295(m)(1)), DOE must publish a notice of proposed rulemaking to propose new standards for consumer central air conditioner and heat pump products or a notice of determination that the existing standards do not need to be amended by June 6, 2017. On November 5, 2014, DOE initiated efforts pursuant to the 6-year lookback requirement by publishing a request for information (RFI) regarding central air conditioners and heat pumps to solicit comments on whether to amend the current energy conservation standards for consumer central air conditioner and heat pump products. 79 FR 65603. The November 2014 RFI also described the procedural and analytical approaches that DOE anticipated to use in order to evaluate potential amended energy conservation standards for central air conditioners and heat pumps.

    On August 28, 2015, DOE published a notice of data availability (NODA) describing analysis to be used in support of the central air conditioners and heat pumps standards rulemaking. 80 FR 52206. The analysis for this notice provided the results of a series of DOE provisional analyses regarding potential energy savings and economic impacts of amending the central air conditioner and heat pump energy conservation standards. These analyses were conducted for the following categories: Engineering, consumer impacts, national impacts, and manufacturer impacts.

    In response to the November 2014 RFI, Lennox formally requested that DOE convene a negotiated rulemaking to address potential amendments to the current standards, which would help ensure that all stakeholders have input into the discussion, analysis, and outcome of the rulemaking. (Lennox, No. 22) Other key industry stakeholders made similar suggestions. (American Council for an Energy-Efficient Economy, No. 23; Air Conditioning Contractors of America, No. 25; Heating, Air Conditioning & Refrigeration Distributors International, No. 26) ASRAC carefully evaluated this request, and the Committee voted to charter a working group to support the negotiated rulemaking effort requested by these parties.

    Subsequently, DOE determined that the complexity of the CAC/HP rulemaking necessitated a combined effort to address these equipment types to ensure a comprehensive vetting of all issues and related analyses to support any final rule setting standards. To this end, DOE solicited the public for membership nominations to the CAC/HP Working Group that would be formed under the ASRAC charter by issuing a Notice of Intent to Establish the Central Air Conditioners and Heat Pumps Working Group To Negotiate a Notice of Proposed Rulemaking for Energy Conservation Standards. 80 FR 40938 (July 14, 2015). The CAC/HP Working Group was established under ASRAC in accordance with the Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking Act—with the purpose of discussing and, if possible, reaching consensus on a set of energy conservation standards to propose/finalize for CACs and HPs. The CAC/HP Working Group was to consist of fairly representative parties having a defined stake in the outcome of the proposed standards, and would consult, as appropriate, with a range of experts on technical issues.

    DOE received 26 nominations for membership. Ultimately, the CAC/HP Working Group consisted of 15 members, including one member from ASRAC and one DOE representative.1 The CAC/HP Working Group met ten times (nine times in-person and once by teleconference). The meetings were held on August 26, 2015, September 10, 2015, September 28-29, 2015, October 13-14, 2015, October 26-27, 2015. November 18-19, 2015, December 1-2, 2015, December 16-17, 2015, January 11-12, 2016, and a webinar on January 19, 2016.

    1 The group members were Tony Bouza (U.S. Department of Energy), Marshall Hunt (Pacific Gas & Electric Company, San Diego Gas & Electric Company, Southern California Edison, and Southern California Gas Company), Andrew deLaski (Appliance Standards Awareness Project and ASRAC representative), Meg Waltner (Natural Resources Defense Council), John Hurst (Lennox), Karen Meyers (Rheem Manufacturing Company), Charles McCrudden (Air Conditioning Contractors of America), Harvey Sachs (American Council for an Energy Efficient Economy), Russell Tharp (Goodman Manufacturing), Karim Amrane (Air-Conditioning, Heating, and Refrigeration Institute), Don Brundage (Southern Company), Kristen Driskell (California Energy Commission), John Gibbons (United Technologies), Steve Porter (Johnstone Supply), and Jim Vershaw (Ingersoll Rand).

    During the CAC/HP Working Group discussions, participants discussed setting new standards for single-package air conditioners. Specifically, arguments were made against raising the standard level for single-package systems due to the unavailability of full product lines, which span the entire range of cooling capacities, with efficiencies that are only modestly greater (i.e., 15 SEER) than the current standard level (i.e., 14 SEER). (ASRAC Public Meeting, No. 80 at pp. 75-6) After being informed that the national energy savings from a 15 SEER standard for single-package systems would be small (i.e., approximately 0.1 quads), the Working Group agreed not to recommend raising the standards for these product classes. (ASRAC Public Meeting, No. 80 at pp. 90-91). In addition, some parties wanted the Group to recommend a level for standards for split-system heat pumps that would encourage use of two-speed equipment (i.e., greater than 15 SEER), but the manufacturer representatives objected to this proposal due to two primary concerns: (1) Only a single compressor manufacturer supplies two-stage compressors, thereby creating the possibility of a limited or constrained supply of the most critical component of a two-speed system and (2) the likelihood, in replacement installations, that the utilization of existing thermostat control wiring could result in the use of only high-speed, thereby eliminating the efficiency gain resulting from low-speed operation during part-load conditions.

    The CAC/HP Working Group successfully reached consensus on recommended energy conservation standards, as well as test procedure amendments for CACs and HPs. On January 19, 2016, the CAC/HP Working Group submitted the Term Sheet to ASRAC outlining its recommendations, which ASRAC subsequently adopted.2

    2 Available at (copy and paste into browser): https://www.regulations.gov/document?D=EERE-2014-BT-STD-0048-0076.

    After carefully considering the consensus recommendations for amending the energy conservation standards for CACs and HPs submitted by the CAC/HP Working Group and adopted by ASRAC, DOE has determined that these recommendations are in accordance with the statutory requirements of 42 U.S.C. 6295(p)(4) for the issuance of a direct final rule.

    More specifically, these recommendations comprise a statement submitted by interested persons who are fairly representative of relevant points of view on this matter. In reaching this determination, DOE took into consideration the fact that the CAC/HP Working Group, in conjunction with ASRAC members who approved the recommendations, consisted of representatives of manufacturers of the covered equipment at issue, States, and efficiency advocates—all of which are groups specifically identified by Congress as relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the Term Sheet was signed and submitted by a broad cross-section of interests, including the manufacturers who produce the subject products, trade associations representing these manufacturers and installation contractors, environmental and energy-efficiency advocacy organizations, and electric utility companies. Although States were not direct signatories to the Term Sheet, the ASRAC Committee approving the CAC/HP Working Group's recommendations included at least two members representing States—one representing the National Association of State Energy Officials (NASEO) and one representing the State of California.3 Moreover, DOE does not read the statute as requiring a statement submitted by all interested parties before the Department may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has the discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness (i.e., “as determined by the Secretary”). Id.

    3 These individuals were Deborah E. Miller (NASEO) and David Hungerford (California Energy Commission).

    DOE also evaluated whether the recommendation satisfies 42 U.S.C. 6295(o), as applicable. In making this determination, DOE conducted an analysis to evaluate whether the potential energy conservation standards under consideration achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified and result in significant energy conservation. The evaluation is the same comprehensive approach that DOE typically conducts whenever it considers potential energy conservation standards for a given type of product or equipment.

    DOE has considered the recommended energy conservation standards and believes that they meet the EPCA requirements for issuance of a direct final rule. As a result, DOE published a direct final rule establishing energy conservation standards for consumer central air conditioners and heat pumps elsewhere in this Federal Register. If DOE receives adverse comments that may provide a reasonable basis for withdrawal and withdraws the direct final rule, DOE will consider those comments and any other comments received in determining how to proceed with this proposed rule.

    For further background information on the proposed standards and the supporting analyses, please see the direct final rule published elsewhere in this Federal Register. That document includes additional discussion of the EPCA requirements for promulgation of energy conservation standards; the current standards for consumer central air conditioners and heat pumps; the history of the standards rulemakings establishing such standards; and information on the test procedures used to measure the energy efficiency of consumer central air conditioners and heat pumps. The document also contains an in-depth discussion of the analyses conducted in support of this rulemaking, the methodologies DOE used in conducting those analyses, and the analytical results.

    II. Proposed Standards

    When considering new or amended energy conservation standards, the standards that DOE adopts for any type (or class) of covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))

    For this proposed rule, DOE considered the impacts of amended standards for central air conditioners and heat pumps at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next-most-efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.

    To aid the reader in understanding the benefits and/or burdens of each TSL, tables in this section summarize the quantitative analytical results for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a standard and impacts on employment.

    1. Benefits and Burdens of TSLs Considered for Central Air Conditioner and Heat Pump Standards

    Table II-1 and Table II-2 summarize the quantitative impacts estimated for each TSL for central air conditioners and heat pumps. The national impacts are measured over the lifetime of central air conditioners and heat pumps purchased in the 30-year period that begins in the anticipated first year of compliance with any amended standards (2021-2050 or, in the case of the recommended TSL, 2023-2052). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A of the direct final rule.

    Table II-1—Summary of Results for Central Air Conditioner and Heat Pump TSLs: National Impacts Category TSL 1 Recommended TSL TSL 3 TSL 4 FFC National Energy Savings Quads 1.3 3.2 8.6 14.2. NPV of Consumer Costs and Benefits (2015$ billion) 3% discount rate 5.7 12.2 1.1 (28.1). 7% discount rate 1.3 2.5 (10.0) (31.4). Cumulative Emissions Reduction (Total FFC Emissions) CO2 (million metric tons) 76.68 188.3 508.7 841.0. SO2 (thousand tons) 40.94 100.8 272.4 452.4. NOX (thousand tons) 142.4 350.3 944.2 1,559. Hg (tons) 0.151 0.372 1.005 1.669. CH4 (thousand tons) 341.2 842.4 2,264 3,738. CH4 (million tons CO2eq) * 9,553 23,586 63,387 104,677. N2O (thousand tons) 0.858 2.114 5.711 9.481. N2O (thousand tons CO2eq) * 227.5 560.3 1,514 2,512. Value of Emissions Reduction (Total FFC Emissions) CO2 (2015$ billion) ** 0.482 to 6.997 1.143 to 16.855 3.190 to 46.375 5.298 to 76.950. NOX—3% discount rate (2015$ million) 222.2 to 506.6 528.1 to 1204.1 1471.5 to 3355.0 2448.1 to 5581.5. NOX—7% discount rate (2015$ million) 80.0 to 180.4 178.6 to 402.6 525.4 to 1184.5 875.0 to 1972.9. * CO2eq is the quantity of CO2 that would have the same global warming potential (GWP). ** Range of the economic value of CO2 reductions is based on estimates of the global benefit of reduced CO2 emissions. Note: Parentheses indicate negative values. Table II-2—Summary of Results for Central Air Conditioners and Heat Pumps by TSL: Manufacturer and Consumer Impacts Category TSL 1 Recommended TSL * TSL 3 TSL 4 Manufacturer Impacts Industry NPV (2015$ million) 3,852.0 to 4,466.2 3,803.9 to 4,381.9 3,382.0 to 4,512.2 3,360.6 to 4,889.6. No-new-standards case INPV = $4,496.1. Change in Industry NPV (%) (14.3) to (0.7) (15.4) to (2.5) (24.8) to 0.4 (25.3) to 8.8. Consumer Average LCC Savings (2015$) Split Air Conditioners N: $43
  • HD: $169
  • HH: $82
  • N: $43
  • HD: $150.
  • HH: $39.
  • ($122) ($304).
    Split Heat Pumps $72 $131 ($25) ($425). Package Air Conditioners N/A N/A $43 ($80). Package Heat Pumps N/A N/A $115 $115. Space-Constrained Air Conditioners N/A N/A N/A $58. Small-Duct High-Velocity N/A N/A N/A ($540). Shipment-Weighted Average ** $68 $75 ($71) ($315). Consumer Simple PBP (years) Split Air Conditioners N: 10.5
  • HD: 5.4
  • HH: 5.5
  • N: 10.5
  • HD: 7.6.
  • HH: 7.7.
  • 15.2 19.2.
    Split Heat Pumps 5.2 4.9 9.4 14.9. Package Air Conditioners N/A N/A 8.9 12.3. Package Heat Pumps N/A N/A 5.2 5.2. Space-Constrained Air Conditioners N/A N/A N/A 11.6. Small-Duct High-Velocity N/A N/A N/A 34.3. Shipment-Weighted Average ** 6.0 6.7 12.5 16.8. % of Consumers that Experience Net Cost Split Air Conditioners N: 25%
  • HD: 14%
  • HH: 15%
  • N: 25%
  • HD: 42%.
  • HH: 45%.
  • 63% 75%.
    Split Heat Pumps 9% 20% 54% 79%. Package Air Conditioners N/A N/A 53% 69%. Package Heat Pumps N/A N/A 39% 39%. Space-Constrained Air Conditioners N/A N/A N/A 60%. Small-Duct High-Velocity N/A N/A N/A 90%. Shipment-Weighted Average * 14% 28% 59% 74%. Note: Parentheses indicate negative values. N = North region. HD = Hot-dry region; HH = Hot-humid region. * There are no impacts for Package Air Conditioners. Package Heat Pumps, Space-Constrained Air Conditioners, and Small-Duct High-Velocity because the standard levels are at the baseline efficiency. ** Weighted by shares of each product class in total projected shipments in 2021. Does not include shipments for SCAC and SDHV.

    First, DOE considered TSL 4, which would save an estimated total of 14.2 quads of energy, an amount DOE considers significant. TSL 4 has an estimated NPV of consumer benefit of −$31.4 billion using a 7-percent discount rate, and −$28.1 billion using a 3-percent discount rate.

    The cumulative emissions reductions at TSL 4 are 841 Mt of CO2, 452.4 thousand tons of SO2, 1,559 thousand tons of NOX, 1.669 tons of Hg, 3,738 thousand tons of CH4, and 9.481 thousand tons of N2O. The estimated monetary value of the CO2 emissions reductions at TSL 4 ranges from $5.298 billion to $76.950 billion.

    At TSL 4, the average LCC savings is −$304 for split air conditioners, −$425 for split heat pumps, −$80 for package air conditioners, $115 for package heat pumps, $58 for space-constrained air conditioners, and −$540 for small-duct high-velocity air conditioners. The simple PBP is 19.2 years for split air conditioners, 14.9 years for split heat pumps, 12.3 years for package air conditioners, 5.2 years for package heat pumps, 11.6 years for space-constrained air conditioners, and 34.3 years for small-duct high-velocity air conditioners. The share of consumers experiencing a net LCC cost is 75 percent for split air conditioners, 79 percent for split heat pumps, 69 percent for package air conditioners, 39 percent for package heat pumps, 60 percent for space-constrained air conditioners, and 90 percent for small-duct high-velocity air conditioners.

    At TSL 4, the projected change in INPV ranges from a decrease of $1,135.6 million to an increase of $393.5 million. If the more severe range of impacts is reached, TSL 4 could result in a net loss of up to 25.3 percent of INPV for manufacturers.

    After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that, at TSL 4 for central air conditioner and heat pump standards, the benefits of energy savings and emissions reductions would be outweighed by the negative NPV of total consumer benefits at a 3-percent and 7-percent discount rate, negative average consumer LCC savings for most product classes, and the reduction in industry value.

    Next, DOE considered TSL 3, which would save an estimated total of 8.6 quads of energy, an amount DOE considers significant. TSL 3 has an estimated NPV of consumer benefit of −$10 billion using a 7-percent discount rate, and $1.1 billion using a 3-percent discount rate.

    The cumulative emissions reductions at TSL 3 are 508.7 Mt of CO2, 272.4 thousand tons of SO2, 944.2 thousand tons of NOX, 1.005 tons of Hg, 2,264 thousand tons of CH4, and 5.711 thousand tons of N2O. The estimated monetary value of the CO2 emissions reductions at TSL 3 ranges from $3.190 billion to $46.375 billion.

    At TSL 3, the average LCC savings is −$122 for split air conditioners, −$25 for split heat pumps, $43 for package air conditioners, and $115 for package heat pumps. The simple PBP is 15.2 years for split air conditioners, 9.4 years for split heat pumps, 8.9 years for package air conditioners, and 5.2 years for package heat pumps. The share of consumers experiencing a net LCC cost is 63 percent for split air conditioners, 54 percent for split heat pumps, 53 percent for package air conditioners, and 39 percent for package heat pumps. There are no impacts on space-constrained air conditioners or small-duct high-velocity air conditioners at TSL 3.

    At TSL 3, the projected change in INPV ranges from a decrease of $1,114.2 million to an increase of $16.1 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 24.8 percent of INPV for manufacturers.

    After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that at TSL 3 for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit at a 3-percent discount rate, and emissions reductions would be outweighed by the negative NPV of consumer benefit at a 7-percent discount rate, negative average LCC savings for most product classes, and the potential reduction in INPV for manufacturers.

    Next, DOE considered the Recommended TSL, which would save an estimated total of 3.2 quads of energy, an amount DOE considers significant. The Recommended TSL has an estimated NPV of consumer benefit of $2.5 billion using a 7-percent discount rate, and $12.2 billion using a 3-percent discount rate.

    The cumulative emissions reductions under the Recommended TSL are 188.3 Mt of CO2, 100.8 thousand tons of SO2, 350.3 thousand tons of NOX, 0.372 tons of Hg, 842.4 thousand tons of CH4, and 2.114 thousand tons of N2O. The estimated monetary value of the CO2 emissions reductions ranges from $1.143 billion to $16.855 billion.

    Under the Recommended TSL, the average LCC savings for split air conditioners is $43 in the north region, $150 in the hot dry region, $39 in the hot humid region, and $131 for split heat pumps. The simple payback period for split air conditioners is 10.5 years in the north region, 7.6 years in the hot dry region, 7.7 years in the hot humid region, and 4.9 years for split heat pumps. The share of consumers experiencing a net LCC cost for split air conditioners is 25 percent in the north region, 42 percent in the hot dry region, 45 percent in the hot humid region, and 20 percent for split heat pumps. There are no impacts to packaged air conditioners, packaged heat pumps, space-constrained air conditioners, and small-duct high-velocity air conditioners under the Recommended TSL.

    Under the Recommended TSL, the projected change in INPV ranges from a decrease of $692.3 million to a decrease of $114.2 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 15.4 percent of INPV for manufacturers.

    After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that under the Recommended TSL for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit, positive impacts on consumers (as indicated by positive average LCC savings and favorable PBPs), and emission reductions, would outweigh the negative impacts on some consumers and the potential reduction in INPV for manufacturers.

    Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this notice of proposed rulemaking that proposes amended energy conservation standards for central air conditioners and heat pumps at the Recommended TSL. The proposed amended energy conservation standards for central air conditioners and heat pumps as determined by the DOE test procedure at the time of the 2015-2016 ASRAC negotiations are presented in Table II-3.

    Table II-3—Proposed Amended Energy Conservation Standards for Central Air Conditioners and Heat Pumps as Determined by the DOE Test Procedure at the Time of the 2015-2016 ASRAC Negotiations Product class National SEER HSPF Southeast * SEER Southwest ** SEER EER Split-System Air Conditioners with a Certified Cooling Capacity <45,000 Btu/h 14 15 15 12.2/10.2 *** Split-System Air Conditioners with a Certified Cooling Capacity ≥45,000 Btu/h 14 14.5 14.5 11.7/10.2 *** Split-System Heat Pumps 15 8.8 Single-Package Air Conditioners † 14 11.0 Single-Package Heat Pumps † 14 8.0 Space-Constrained Air Conditioners † 12 Space-Constrained Heat Pumps † 12 7.4 Small-Duct High-Velocity Systems † 12 7.2 * Southeast includes: The states of Alabama, Arkansas, Delaware, Florida, Georgia, Hawaii, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee, Texas, Virginia, the District of Columbia, and the U.S. territories. ** Southwest includes the states of Arizona, California, Nevada, and New Mexico. *** The 10.2 EER amended energy conservation standard applies to split-system air conditioners with a seasonal energy efficiency ratio greater than or equal to 16. † The energy conservation standards for small-duct high velocity and space-constrained product classes remain unchanged from current levels.

    Table II-4 shows the amended energy conservation standards for central air conditioners and heat pumps as determined by the test procedure final rule issued by DOE on November 30, 2016, hereinafter referred to as the “November 2016 test procedure final rule”.4 (Docket No. EERE-2016-BT-TP-0029)

    4 The test procedure final rule issued by DOE on November 30, 2016, is accessible via the DOE Web site at: http://energy.gov/eere/buildings/downloads/issuance-2016-11-30-energy-conservation-program-test-procedures-central-air.

    Table II-4—Amended Energy Conservation Standards for Central Air Conditioners and Heat Pumps as Determined by the November 2016 Test Procedure Final Rule Product class National SEER2 HSPF2 Southeast * SEER2 Southwest ** SEER2 EER2 Split-System Air Conditioners with a Certified Cooling Capacity <45,000 Btu/h 13.4 14.3 14.3 11.7/9.8 *** Split-System Air Conditioners with a Certified Cooling Capacity ≥45,000 Btu/h 13.4 13.8 13.8 11.2/9.8 *** Split-System Heat Pumps 14.3 7.5 Single-Package Air Conditioners † 13.4 10.6 Single-Package Heat Pumps † 13.4 6.8 Space-Constrained Air Conditioners † 11.7 Space-Constrained Heat Pumps † 11.9 6.3 Small-Duct High-Velocity Systems † 12 6.1 * Southeast includes: The states of Alabama, Arkansas, Delaware, Florida, Georgia, Hawaii, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee, Texas, Virginia, the District of Columbia, and the U.S. territories. ** Southwest includes the states of Arizona, California, Nevada, and New Mexico. *** The 9.8 EER amended energy conservation standard applies to split-system air conditioners with a seasonal energy efficiency ratio greater than or equal to 15.2. † The energy conservation standards for small-duct high velocity and space-constrained product classes remain unchanged from current levels.

    The following paragraph describes how DOE translated the energy conservation standards in Table II-3—which are in terms of SEER, HSPF, and EER as determined by the DOE test procedure at the time of the 2015-2016 ASRAC Negotiations—to the energy conservation standard levels in Table II-4—which are in terms of SEER2, HSPF2, and EER2 as determined by the November 2016 test procedure final rule. DOE used a methodology consistent with the recommendations of the CAC/HP Working Group to translate the SEER standard levels to SEER2 standard levels for the split-system and single-package product classes. Note that the heating load line slope factor established by the November 2016 test procedure final rule is different than the heating load line slope factors used by the CAC/HP Working Group in their Term Sheet recommendation #9. DOE translated the HSPF standard levels to HSPF2 standard levels for split-system and single-package heat pumps by adjusting for the intermediate heating load line slope factor established by the November 2016 test procedure final rule using interpolation. (November 2016 Test Procedure Final Rule, pp. 127-130)

    Comments in response to the provisional translations for HSPF2 for split system and single-package heat pumps are summarized in the November 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 127-130). Commenters agreed with the translation for split-system heat pumps, but industry commenters felt that the 6.8 value was too high for single-package heat pumps. Alternative HSPF2 values that were suggested in comments ranged from 6.5 (Docket No. EERE-2016-BT-TP-0029, Lennox, No. 25 at p. 10) to 6.7 (Docket No. EERE-2016-BT-TP-0029, Goodman, No. 39 at p. 10) Data provided under confidentiality supports the range suggested in comments. DOE combined that data with the data it used to validate its interpolated value of 6.8. DOE found that the combined data shows that 6.7 HSPF2 is an appropriate translation. For this reason, DOE is proposing 6.7 HSPF2 for single-package heat pumps in this notice.

    The August 2016 test procedure SNOPR and November 2016 test procedure final rule did not include translated levels for small-duct high velocity (SDHV) and space-constrained products. Neither did Recommendation #9 of the Term Sheet. Recommendation #9 did, however, state that the energy conservation standards for those product classes should remain unchanged from current levels (i.e. that there would be no change in stringency). (ASRAC Term Sheet, No. 76 at pp. 4-5) On October 27, 2016, DOE published a notice of data availability (NODA) that provided provisional translations of the CAC/HP Working Group's recommended energy conservation standard levels for small-duct high velocity and space constrained products (which are in terms of the test procedure at the time of the 2015-2016 Negotiations) into levels consistent with the test procedure proposed in the August 2016 test procedure SNOPR. Table II-5 presents the provisional translations included in the October 2016 NODA. Note that multiple provisional translations from SEER to SEER2 are included for space-constrained air conditioners and heat pumps because, at the time of the NODA publication, DOE had not finalized the test procedure which would establish the minimum external static pressure requirements.

    Table II-5—Provisional Translations of CAC/HP Working Group-Recommended Energy Conservation Standard Levels Included in October 2016 NODA Product class CAC/HP Working group
  • recommendation
  • SEER HSPF August 2016 test procedure SNOPR translation SEER2 HSPF2
    Small-Duct High-Velocity Systems 12 7.2 12 6.1 Space-Constrained Air Conditioners 11.6 */11.8 ** Space-Constrained Heat Pumps 12 11.5 */11.9 ** 6.3 * Estimated SEER2 at 0.50 in. wc. ** Estimated SEER2 at 0.30 in. wc.

    In developing its provisional translations for space-constrained air conditioners published in the NODA, DOE reviewed existing test data, adjusted relevant measurements based on blower performance data, and translated the levels based on the average impact. For the space-constrained and SDHV heat pump translations published in the NODA, DOE also reviewed test data and confirmed that the 15% reduction from HSPF to HSPF2 that DOE observed for split-system and single-package heat pumps was appropriate also for space-constrained and SDHV heat pumps.

    In written comments, manufacturers and AHRI expressed support for DOE's provisional translations for SDHV products. Unico stated that it reviewed all of its test reports from the previous two years and found its range of results validated DOE's translations for SDHV products. (Unico, No. 95 at p. 2). AHRI and Lennox also expressed support for DOE's SEER and HPSF to SEER2 and HSPF2 levels for SDHV products. (AHRI, No. 94 at p. 1; Lennox, No. 97 at p. 1) EEI commented that it did not agree with DOE's translation because the HSPF appears to drop by approximately 15.3%, even though there has been no change to the product. (EEI, No. 96 at p. 2).

    Regarding the concern expressed by EEI, DOE's translations do not assume nor reflect any change to product design. EPCA requires DOE to consider changes in energy conservation standards if a test procedure change alters the measurement, but does not prohibit a test procedure change that alters the measurement. (42 U.S.C. 6293(e)) In the November 2016 test procedure final rule, DOE adopted provisions that amend the test procedure required to determine representations for CAC/HP, including SDHV products. These provisions impact the value of the test procedure results. For instance, the November 2016 test procedure final rule assumes higher heating loads for heat pumps in colder outdoor conditions, which will typically result in lower HSPF2 ratings. (November 2016 Test Procedure Final Rule, pp. 110-127) Simply stated, an SDHV product tested in accordance with the test procedure at the time of the 2015-2016 ASRAC Negotiations will get a different rating than the same SDHV product (without design changes) tested in accordance with the test procedure adopted in the November 2016 test procedure final rule. DOE's translations are intended to reflect these differences. DOE is using “SEER2”, “HSPF2”, and “EER2” to distinguish ratings determined by the November 2016 test procedure from the SEER, HSPF and EER ratings determined by past test procedures to mitigate confusion that may result from the possibility that products available before and after the November 2016 test procedure may have a different SEER2/HSPF2/EER2 than SEER/HSPF/EER rating despite no changes to design.

    Unico's SDHV data validate DOE's translations, which are also supported by AHRI and Lennox. DOE did not receive any other comments or data suggesting that its translations for SDHV products are inappropriate. For these reasons, DOE is proposing the SDHV translations presented in the October 2016 NODA in this NOPR.

    AHRI is concerned that the SEER2 translation DOE presented for space-constrained air conditioners is too high by 0.1. AHRI calculated SEER2 to be 11.7 at 0.30 in. wc. rather than 11.8. AHRI provided data for 4 space-constrained products to illustrate its results. (AHRI, No. 94 at p. 2). Lennox also commented that DOE's SEER2 translation for space-constrained air conditioners is too high by 0.1. (Lennox, No. 97 at p. 2) AHRI and Lennox also commented that DOE should adopt the same SEER2 standard for space-constrained air conditioners and heat pumps (AHRI, No. 94 at p.2; Lennox, No. 97 at p. 2) First Co. strongly disagrees with DOE's proposed translation of SEER to SEER2 values for space-constrained air conditioners because DOE's methodology for determining SEER2 fails to account for the significant SEER reduction resulting from what they claim to be “new” coil-only testing requirements for space-constrained air conditioners. First Co. is referring to amendments to the certification requirements of 10 CFR 429 adopted for CAC/HP in the June 2016 test procedure final rule, which became effective in July 2016 and are required for representations starting December 5, 2016. (10 CFR 429.16(a)(1)) First Co. stated that prior to the June 2016 test procedure final rule, space constrained units, which are manufactured and sold only for installation with blower coil indoor units, have been tested with blower coil units with high-efficiency motors (ECMs). The high-efficiency motors average 200W/1000 scfm or less for indoor power compared with the default fan power value of 365W/1000 scfm applied under the “coil- only” test. First Co. claims that the impact of the “coil-only” test alone is approximately a 10% reduction in SEER of these products from 12 SEER to 10.8 SEER, and that DOE's methodology is flawed because it uses a starting point of 365W/1000 (i.e., the “coil-only” default fan power value of the current test procedure) and only considers the change in energy usage from 365W/1000 scfm to 441 W/1000 scfm. They claim that this ignores the increase in energy usage from 200W/1000 scfm to 365W/1000 scfm, and the resulting SEER reduction, caused by the imposition of the “coil-only” test. First Co. submits that SEER2 should be calculated by applying the following methodology, which takes into account the new “coil-only” test and the changes in the August 2016 test procedure SNOPR: Replace 200W/1000 scfm (test data using ECM) with 411 W/1000 scfm and recalculate the SEER. First Co. indicates that applying this methodology, SEER will be reduced by approximately 10% for the coil only test and by an additional 4% to account for the suggested 411 W/1000 scfm number, resulting in a 10.4 SEER2 rating for space constrained air conditioners. (First Co., No. 93 at pp. 1, 2)

    DOE appreciates the space-constrained air conditioner translation data provided by AHRI. DOE combined AHRI's data with the data DOE used to develop DOE's provisional translations. Note that after the October 2016 NODA, DOE issued the November 2016 test procedure final rule in which it adopted a minimum external static pressure requirement of 0.3 in. wc. for space-constrained air conditioners and heat pumps. (November 2016 Test Procedure Final Rule, pp. 97-99) Consequently, DOE combined AHRI's data with DOE's data reflective of performance at that operating condition. Once combined, the data validates AHRI's assertion that 11.7 is the appropriate SEER2 level for space-constrained air conditioners at 0.3 in. wc. Thus, DOE is adopting 11.7 SEER2 as the standard level for space-constrained air conditioners in this final rule. DOE disagrees with AHRI and Lennox that 11.7 SEER2 should also be used for space-constrained heat pumps. While space-constrained air conditioners are required to certify at least one coil-only combination that is representative of the least efficient coil-only combination distributed in commerce, space-constrained heat pumps have no coil-only requirement. (10 CFR 429.16(a)(1)) AHRI derived 11.7 SEER2 using 406 W/1000 scfm (the default fan power at 0.3 in. wc.) for indoor fan power consumption. As discussed in the November 2015 test procedure SNOPR and subsequently referenced in the November 2016 test procedure final rule, this default fan power value is reflective of the weighted-average performance of indoor fan by motor type distribution projected for the effective date of this standard, which includes a significant majority of lower-efficiency PSC motors. 80 FR 69319-20 and (November 2016 Test Procedure Final Rule, p. 104) First Co. states that most space-constrained blower-coil systems currently sold include a high-efficiency ECM motor. (First Co., No 93 at pp. 1-2) Brushless permanent magnet motors (often referred to as “ECM”) are more efficient than PSC motors. Thus, 406 W/1000 scfm is not representative of the field operation of space-constrained blower-coil systems being sold. DOE's provisional analysis presented in the October 2016 NODA is consistent with First Co.'s claims, showing that higher-efficiency motors typically used in space-constrained blower-coil systems sold today consume less than 406 W/1000 scfm, resulting in a higher SEER2 level for space-constrained blower-coil systems compared to space-constrained coil-only systems. DOE did not receive any additional comments or data regarding the SEER2 level for space-constrained heat pumps. For these reasons, DOE finds that a higher SEER2 level for space-constrained heat pumps—which is based on blower-coil performance—compared to space-constrained air-conditioners—which is based on coil-only performance—is appropriate. DOE adopts its provisional translation of 11.9 SEER2 for space-constrained heat pumps for these reasons.

    DOE provided a response to First Co.'s comment regarding the required coil-only test for testing of space constrained products in the November 30, 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 146-148)

    2. Summary of Benefits and Costs (Annualized) of the Proposed Amended Standards

    The benefits and costs of the proposed amended standards can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) The annualized national economic value (expressed in 2015$) of the benefits from operation of products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of emission reductions, including CO2 emission reductions.5

    5 To convert the time-series of costs and benefits into annualized values, DOE calculated a present value in 2016, the year used for discounting the NPV of total consumer costs and savings. For the benefits, DOE calculated a present value associated with each year's shipments in the year in which the shipments occur (e.g., 2020 or 2030), and then discounted the present value from each year to 2016. The calculation uses discount rates of 3 and 7 percent for all costs and benefits except for the value of CO2 reductions, for which DOE used case-specific discount rates. Using the present value, DOE then calculated the fixed annual payment over a 30-year period, starting in the compliance year, that yields the same present value.

    Estimates of annualized benefits and costs of the proposed amended standards for central air conditioners and heat pumps, expressed in 2015$, are shown in Table II-6. The results under the primary estimate are as follows.

    Using a 7-percent discount rate for benefits and costs other than CO2 reduction, (for which DOE used a 3-percent discount rate along with the average SCC series that uses a 3-percent discount rate ($40.6/t in 2015)), the estimated cost of the proposed standards is $741 million per year in increased product costs, while the estimated benefits are $1,041 million per year in reduced product operating costs, $337 million per year in CO2 reductions, and $22 million per year in reduced NOX emissions. In this case, the net benefit would amount to $659 million per year.

    Using a 3-percent discount rate for all benefits and costs and the average SCC series that uses a 3-percent discount rate ($40.6/t in 2015), the estimated cost of the proposed standards is $747 million per year in increased product costs, while the estimated benefits are $1,488 million per year in reduced product operating costs, $337 million per year in CO2 reductions, and $32 million per year in reduced NOX emissions. In this case, the net benefit would amount to $1,110 million per year.

    DOE also notes that, using a 7-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $300 million per year. Using a 3-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $741 million per year.

    Table II-6—Annualized Benefits and Costs of Proposed Amended Standards (Recommended TSL) for Central Air Conditioners and Heat Pumps * Discount rate
  • %
  • Million 2015$/year Primary estimate * Low net benefits
  • estimate *
  • High net benefits
  • estimate *
  • Benefits Consumer Operating Cost Savings 7 1,041 1,005 1,147. 3 1,488 1,425 1,653. CO2 Reduction (using mean SCC at 5% discount rate) ** 5 100 100 100. CO2 Reduction (using mean SCC at 3% discount rate) ** 3 337 337 337. CO2 Reduction (using mean SCC at 2.5% discount rate) ** 2.5 494 494 494. CO2 Reduction (using 95th percentile SCC at 3% discount rate ) ** 3 1,027 1,027 1,027. NOX Reduction † 7 22 22 49. 3 32 32 73. Total Benefits †† 7 plus CO2 range 1,163 to 2,090 1,127 to 2,054 1,296 to 2,223. 7 1,400 1,364 1,533. 3 plus CO2 range 1,620 to 2,547 1,557 to 2,484 1,826 to 2,753. 3 1,857 1,794 2,063. Costs Consumer Incremental Installed Costs 7 741 784 723. 3 747 799 725. Net Benefits Total †† 7 plus CO2 range 422 to 1,349 342 to 1,269 573 to 1,500. 7 659 580 810. 3 plus CO2 range 873 to 1,800 757 to 1,684 1,100 to 2,028. 3 1,110 994 1,338. * This table presents the annualized costs and benefits associated with central air conditioners and heat pumps shipped in 2023-2052. These results include benefits to consumers which accrue after 2050 from the products purchased in 2023-2052. The incremental installed costs include incremental equipment cost as well as installation costs. The CO2 reduction benefits are global benefits due to actions that occur nationally. The Primary, Low Net Benefits, and High Net Benefits Estimates utilize projections of energy prices from the AEO 2015 Reference case, Low Estimate, and High Estimate, respectively. In addition, incremental product costs reflect a modest decline rate for projected product prices in the Primary Estimate, a constant rate in the Low Net Benefits Estimate, and a higher decline rate in the High Net Benefits Estimate. Note that the Benefits and Costs may not sum to the Net Benefits due to rounding. ** The CO2 reduction benefits are calculated using 4 different sets of SCC values. The first three use the average SCC calculated using 5%, 3%, and 2.5% discount rates, respectively. The fourth represents the 95th percentile of the SCC distribution calculated using a 3% discount rate. The SCC values are emission year specific. † DOE estimated the monetized value of NOX emissions reductions using benefit per ton estimates from the Regulatory Impact Analysis for the Clean Power Plan Final Rule, published in August 2015 by EPA's Office of Air Quality Planning and Standards. (Available at: http://www.epa.gov/cleanpowerplan/clean-power-plan-final-rule-regulatory-impact-analysis.) For the Primary Estimate and Low Net Benefits Estimate, DOE used a national benefit-per-ton estimate for NOX emitted from the Electric Generating Unit sector based on an estimate of premature mortality derived from the ACS study (Krewski et al., 2009). For the High Net Benefits Estimate, the benefit-per-ton estimates were based on the Six Cities study (Lepuele et al., 2011); these are nearly two-and-a-half times larger than those from the ACS study. †† Total Benefits for both the 3% and 7% cases are presented using only the average SCC with 3-percent discount rate. In the rows labeled “7% plus CO2 range” and “3% plus CO2 range,” the operating cost and NOX benefits are calculated using the labeled discount rate, and those values are added to the full range of CO2 values.
    III. Public Participation A. Submission of Comments

    DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this proposed rule.

    Submitting comments via www.regulations.gov. The www.regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

    DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery/courier, or mail. Comments and documents submitted via email, hand delivery/courier, or mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

    Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.

    Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery/courier two well-marked copies: one copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    IV. Procedural Issues and Regulatory Review

    The regulatory reviews conducted for this proposed rule are identical to those conducted for the direct final rule published elsewhere in this Federal Register. Please see the direct final rule for further details.

    V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed rule.

    List of Subjects in 10 CFR Part 431

    Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.

    Issued in Washington, DC, on December 5, 2016. David J. Friedman, Acting Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, DOE proposes to amend part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:

    PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS 1. The authority citation for part 430 continues to read as follows: Authority:

    42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

    2. Section 430.32 is amended by revising paragraphs (c) introductory text, (c) through (3), and adding paragraphs (c)(5) and (6) to read as follows:
    430.32 Energy and water conservation standards and their compliance dates.

    (c) Central air conditioners and heat pumps. The energy conservation standards defined in terms of the heating seasonal performance factor are based on Region IV, the minimum standardized design heating requirement, and the provisions of 10 CFR 429.16. (1) Central air conditioners and central air conditioning heat pumps manufactured on or after January 1, 2015, and before January 1, 2023, must have Seasonal Energy Efficiency Ratio and Heating Seasonal Performance Factor not less than:

    Product class Seasonal energy efficiency ratio (SEER) Heating seasonal performance factor (HSPF) (i) Split systems—air conditioners 13 (ii) Split systems—heat pumps 14 8.2 (iii) Single package units—air conditioners 14 (iv) Single package units—heat pumps 14 8.0 (v) Small-duct, high-velocity systems 12 7.2 (vi)(A) Space-constrained products—air conditioners 12 (vi)(B) Space-constrained products—heat pumps 12 7.4

    (2) In addition to meeting the applicable requirements in paragraph (c)(1) of this section, products in product class (i) of paragraph (c)(1) of this section (i.e., split-systems—air conditioners) that are installed on or after January 1, 2015, and before January 1, 2023, in the States of Alabama, Arkansas, Delaware, Florida, Georgia, Hawaii, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, or Virginia, or in the District of Columbia, must have a Seasonal Energy Efficiency Ratio (SEER) of 14 or higher. Any outdoor unit model that has a certified combination with a rating below 14 SEER cannot be installed in these States. The least efficient combination of each basic model must comply with this standard.

    (3)(i) In addition to meeting the applicable requirements in paragraph (c)(1) of this section, products in product classes (i) and (iii) of paragraph (c)(1) of this section (i.e., split systems—air conditioners and single-package units—air conditioners) that are installed on or after January 1, 2015, and before January 1, 2023, in the States of Arizona, California, Nevada, or New Mexico must have a Seasonal Energy Efficiency Ratio (SEER) of 14 or higher and have an Energy Efficiency Ratio (EER) (at a standard rating of 95 °F dry bulb outdoor temperature) not less than the following:

    Product class Energy
  • efficiency
  • ratio (EER)
  • (A) Split systems—air conditioners with rated cooling capacity less than 45,000 Btu/hr 12.2 (B) Split systems—air conditioners with rated cooling capacity equal to or greater than 45,000 Btu/hr 11.7 (C) Single-package units—air conditioners 11.0

    (ii) Any outdoor unit model that has a certified combination with a rating below 14 SEER or the applicable EER cannot be installed in this region. The least-efficient combination of each basic model must comply with this standard.

    (5) Central air conditioners and central air conditioning heat pumps manufactured on or after January 1, 2023, must have Seasonal Energy Efficiency Ratio 2 and Heating Seasonal Performance Factor 2 not less than:

    Product class Seasonal energy efficiency ratio 2 (SEER2) Heating seasonal performance factor 2 (HSPF2) (i)(A) Split systems—air conditioners with a certified cooling capacity less than 45,000 Btu/hr 13.4 (i)(B) Split systems—air conditioners with a certified cooling capacity equal to or greater than 45,000 Btu/hr 13.4 (ii) Split systems—heat pumps 14.3 7.5 (iii) Single-package units—air conditioners 13.4 (iv) Single-package units—heat pumps 13.4 6.7 (v) Small-duct, high-velocity systems 12 6.1 (vi)(A) Space-constrained products—air conditioners 11.7 (vi)(B) Space-constrained products—heat pumps 11.9 6.3

    (6)(i) In addition to meeting the applicable requirements in paragraph (c)(5) of this section, products in product classes (i) and (iii) of paragraph (c)(5) of this section (i.e., split systems—air conditioners and single-package units—air conditioners) that are installed on or after January 1, 2023, in the southeast or southwest must have Seasonal Energy Efficiency Ratio 2 and Energy Efficiency Ratio 2 not less than:

    Product class Southeast * SEER2 Southwest ** SEER2 EER2 *** (A) Split-systems—air conditioners with a certified cooling capacity less than 45,000 Btu/hr 14.3 14.3 † 11.7/9.8 (B) Split-systems—air conditioners with a certified cooling capacity equal to or greater than 45,000 Btu/hr 13.8 13.8 †† 11.2/9.8 (C) Single-package units—air conditioners 10.6 * “Southeast” includes the States of Alabama, Arkansas, Delaware, Florida, Georgia, Hawaii, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee, Texas, Virginia, the District of Columbia, and the U.S. Territories. ** “Southwest” includes the States of Arizona, California, Nevada, and New Mexico. *** EER refers to the energy efficiency ratio at a standard rating of 95 °F dry bulb outdoor temperature. † The 11.7 EER2 standard applies to products with a certified SEER2 less than 15.2. The 9.8 EER2 standard applies to products with a certified SEER2 greater than or equal to 15.2. †† The 11.2 EER2 standard applies to products with a certified SEER2 less than 15.2. The 9.8 EER2 standard applies to products with a certified SEER2 greater than or equal to 15.2.

    (ii) Any outdoor unit model that has a certified combination with a rating below the applicable standard level(s) for a region cannot be installed in that region. The least-efficient combination of each basic model must comply with this standard.

    [FR Doc. 2016-29990 Filed 1-5-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9569; Directorate Identifier 2016-NM-052-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2013-03-12 for all Dassault Aviation Model MYSTERE-FALCON 50 airplanes. AD 2013-03-12 currently requires revising the maintenance program to incorporate new or revised maintenance requirements and airworthiness limitations. Since we issued AD 2013-03-12, the manufacturer has issued a revision to the airplane maintenance manual (AMM) that introduces new or more restrictive maintenance requirements and/or airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or revised maintenance requirements and airworthiness limitations. We are proposing this AD to prevent reduced structural integrity of the airplane.

    DATES:

    We must receive comments on this proposed AD by February 21, 2017.

    ADDRESSES:

    You may send comments 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: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, 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 Airplane Directorate, 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-2016-9569; 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 proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9569; Directorate Identifier 2016-NM-052-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD.

    Discussion

    On February 1, 2013, we issued AD 2013-03-12, Amendment 39-17347 (78 FR 9798, February 12, 2013) (“AD 2013-03-12”). AD 2013-03-12 requires actions intended to address an unsafe condition on all Dassault Aviation Model MYSTERE-FALCON 50 airplanes. Since we issued AD 2013-03-12, the manufacturer has issued a revision to the AMM that introduces new or more restrictive maintenance requirements and/or airworthiness limitations.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0067, dated April 7, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE-FALCON 50 airplanes. The MCAI states:

    The airworthiness limitations and maintenance requirements for the Mystère Falcon 50 type design are included in DA Mystère Falcon 50 Aircraft Maintenance Manual (AMM) chapter 5-40 and are approved by EASA.

    Failure to implement these limitations or accomplish these tasks could result in an unsafe condition [reduced structural integrity of the airplane]. Consequently, compliance with these actions has been identified as mandatory for continued airworthiness.

    Consequently, EASA issued AD 2011-0246 [which corresponds to FAA AD 2013-03-12] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in DA Mystère Falcon 50 AMM chapter 5-40 Revision 21.

    Since that [EASA] AD was issued, DA issued revision 23 of the Mystere Falcon 50 AMM chapter 5-40 (hereafter referred to as `the ALS' in this [EASA] AD), which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.

    The ALS introduces, among others, the following changes:

    —Addition of more detailed data regarding SSIP program, —Task 53-50-35-220-802 “Detailed inspection of the frame 35 upper and lower sections”, replacing Task 53-50-35-220-801, —Task 55-00-00-270-801 “Ultrasonic inspection for stress corrosion in stabilizer hinges”, replacing Task 55-00-00-250-801, and —Task 78-31-00-250-802 “Special detailed inspection (fluorescent penetrant) of thrust reverser door hinge fittings”, replacing Task 78-31-00-250-801.

    For the reasons described above, this [EASA] AD, retains the requirements of EASA AD 2011-0246, which is superseded, and requires the implementation of the maintenance tasks and airworthiness limitations, as specified in the ALS.

    This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or revised maintenance requirements and airworthiness limitations. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9569.

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Section 05-40/00, Airworthiness Limitations, of Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 23, dated July 2015. The service information describes maintenance requirements and/or airworthiness limitations. 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 and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

    This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions 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 (l)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.

    Costs of Compliance

    We estimate that this proposed AD affects 249 airplanes of U.S. registry.

    The actions required by AD 2013-03-12, and retained in this proposed AD, take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2013-03-12 is $85 per product.

    We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $21,165, or $85 per product.

    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.

    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 removing Airworthiness Directive (AD) 2013-03-12, Amendment 39-17347 (78 FR 9798, February 12, 2013), and adding the following new AD: Dassault Aviation: Docket No. FAA-2016-9569; Directorate Identifier 2016-NM-052-AD. (a) Comments Due Date

    We must receive comments by February 21, 2017.

    (b) Affected ADs

    (1) This AD replaces AD 2013-03-12, Amendment 39-17347 (78 FR 9798, February 12, 2013) (“AD 2013-03-12”).

    (2) This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”), and AD 2012-02-18, Amendment 39-16941 (77 FR 12175, February 29, 2012) (“AD-2012-02-18”).

    (c) Applicability

    This AD applies to Dassault Aviation Model MYSTERE-FALCON 50 airplanes, certificated in any category, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 05, Periodic inspections.

    (e) Reason

    This AD was prompted by a manufacturer revision to the airplane maintenance manual (AMM) that introduces new or more restrictive maintenance requirements and/or airworthiness limitations. We are issuing this AD to prevent reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Retained Maintenance Program Revision, With No Changes

    This paragraph restates the requirements of paragraph (g) of AD 2013-03-12, with no changes. Within 30 days after March 19, 2013 (the effective date of AD 2013-03-12): Revise the maintenance program to incorporate all airworthiness limitations and maintenance tasks specified in Section 05-40/00, Airworthiness Limitations, of Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 21, dated June 2011. The initial compliance times for the tasks are at the applicable times specified in Section 05-40/00, Airworthiness Limitations, of Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 21, dated June 2011, or within 30 days after March 19, 2013, whichever occurs later.

    (h) Retained Provision Regarding Alternative Actions, Intervals, and Critical Design Configuration Control Limitations (CDCCLs), With New Exception

    This paragraph restates the requirements of paragraph (h) of AD 2013-03-12, with a new exception. Except as required by paragraph (i) of this AD: After accomplishing the revisions required by paragraph (g) of this AD, no alternative actions (e.g., inspections), intervals, and/or CDCCLs may be used other than those specified in Section 05-40/00, Airworthiness Limitations, of Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 21, dated June 2011, unless the actions, intervals, and/or CDCCLs are approved as an alternative methods of compliance (AMOC) in accordance with the procedures specified in paragraph (l)(1) of this AD.

    (i) New Maintenance or Inspection Program Revision

    Within 30 days after the effective date of this AD: Revise the maintenance or inspection program, as applicable, to incorporate airworthiness limitations, maintenance tasks, and associated thresholds and intervals specified in Section 05-40/00, Airworthiness Limitations, of Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 23, dated July 2015. The initial compliance times for the tasks are at the applicable times specified in Section 05-40/00, Airworthiness Limitations, of Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 23, dated July 2015, or within 30 days after the effective date of this AD, whichever occurs later. Accomplishing the revision of the maintenance or inspection program required by this paragraph terminates the requirements of paragraph (g) of this AD.

    (j) New Provision Regarding Alternative Actions and Intervals

    After the maintenance or inspection program has been revised as required by paragraph (i) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in paragraph (l)(1) of this AD.

    (k) Terminating Action for Certain ADs

    Accomplishing the actions required by paragraph (g) or (i) of this AD terminates all requirements of AD 2010-26-05 and AD 2012-02-18 for the Dassault Aviation Model MYSTERE-FALCON 50 airplanes specified in those ADs.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, 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 Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. 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. The AMOC approval letter must specifically reference this AD.

    (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 Branch, ANM-116, Transport Airplane Directorate, 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.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0067, dated April 7, 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-2016-9569.

    (2) 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. You may view this service information at the FAA, Transport Airplane Directorate, 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 December 27, 2016. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31963 Filed 1-5-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9567; Directorate Identifier 2016-NM-147-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2007-13-08, for certain Airbus Model A318, A319, A320, and A321 series airplanes. AD 2007-13-08 currently requires repetitive inspections of the auxiliary power unit (APU) starter motor, APU inlet plenum, and APU air intake for discrepancies; repetitive cleaning of the APU air intake, and applicable corrective actions. Since we issued AD 2007-13-08, a determination was made that the unsafe condition could occur on additional airplanes. This proposed AD would expand the applicability in AD 2007-13-08, and include an optional terminating installation for the repetitive actions. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by February 21, 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 Airbus, Airworthiness Office-EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; Internet: http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 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-2016-9567; 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 proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9567; Directorate Identifier 2016-NM-147-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD.

    Discussion

    On June 12, 2007, we issued AD 2007-13-08, Amendment 39-15112 (72 FR 33877, June 20, 2007) (“AD 2007-13-08”), for certain Airbus Model A318, A319, A320, and A321 series airplanes. AD 2007-13-08 was prompted by mandatory continuing airworthiness information issued by an airworthiness authority of another country to identify and correct an unsafe condition on an aviation product. AD 2007-13-08 currently requires repetitive inspections of the APU starter motor, APU inlet plenum, and APU air intake for discrepancies; repetitive cleaning of the APU air intake, and applicable corrective actions. We issued AD 2007-13-08 to detect and correct reverse flow during APU startup, leading to flame propagation in the APU air inlet and intake duct. Such conditions could result in an in-flight fire in the APU area.

    Since we issued AD 2007-13-08, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0176, dated August 31, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, A320, and A321 airplanes. The MCAI states:

    An operator reported black smoke at the rear of the fuselage during taxi after landing. The smoke was caused by a fire in the auxiliary power unit (APU) air intake. The subsequent analysis demonstrated that, following numerous unsuccessful APU start attempts in flight, there is a risk of reverse flow leading to flame propagation to the APU air inlet and air intake duct.

    This condition, if not detected and corrected, could result in an in-flight fire in the APU area.

    Prompted by these findings, Airbus issued Service Bulletin (SB) A320-49-1068 to provide inspection and cleaning instructions. The applicable Flight Crew Operating Manual (FCOM) already contained a limitation for the number of APU start attempts, as follows:

    APU STARTER After 3 Starter Motor Duty Cycles, Wait 60 Minutes Before Attempting 3 More Cycles

    To address this potential unsafe condition, EASA issued AD 2006-0153 to require repetitive inspections of the APU starter motor, APU inlet plenum and APU air intake [for discrepancies], as well as repetitive cleaning of the APU air intake [and applicable corrective actions].

    As the reverse flow inside the APU can only occur in flight with the APU inlet closed, various modifications (mod) were developed to introduce a new electronic control box (ECB) with associated software, the functionality of which keeps the APU inlet door open for 15 minutes, following an APU auto-shutdown in flight. Consequently, AD 2006-0153 was revised [which corresponds to FAA AD 2007-13-08], reducing the Applicability by excluding certain post-mod aeroplanes, and introducing these modifications as optional terminating actions.

    After EASA AD 2006-0153R2 was issued, it was determined that, as an APU ECB can be replaced (or moved from one aeroplane to another) in service, inadvertently installing a pre-mod ECB would reintroduce the unsafe condition. Prompted by this finding, EASA issued AD 2016-0159, retaining the requirements of EASA AD 2006-0153R2, which was superseded, expanding the Applicability and including references to additional optional terminating actions.

    Since EASA AD 2016-0159 was issued, it was determined that paragraph (5) of the [EASA] AD contained some erroneous statements, inadvertently excluding certain aeroplanes, those that have Airbus mod 23698 or mod 24498 embodied in production, from the repetitive actions.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0159, which is superseded, and corrects paragraph (5). For post-mod aeroplanes where, inadvertently, an `affected' ECB has been installed in service, this AD adds the requirement to restore those aeroplanes to post-mod configuration by installation of a `serviceable' ECB. This [EASA] AD also introduces some editorial changes, not affecting the required actions.

    Discrepancies include a defective APU starter motor, misaligned brush wear indicator-pin, oil contamination of the brush wear indicator, and dirt, debris, dust, sand, oil, combustible residues, grease and other contaminations of the APU inlet plenum. Corrective actions include replacement of the APU starter motor and cleaning the APU air intake, if necessary. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9567.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A320-49-1068, Revision 01, dated February 2, 2006. The service information describes procedures for repetitive inspections for discrepancies of the APU starter motor, APU inlet plenum, and APU air intake, as well as repetitive cleaning of the APU air intake and applicable corrective actions.

    Airbus has also issued the following service information, which describes procedures for replacing the ECB. These documents are distinct since they apply to different airplane models in different configurations.

    • Airbus Service Bulletin A320-49-1070, dated July 28, 2006.

    • Airbus Service Bulletin A320-49-1075, Revision 01, dated December 1, 2006.

    • Airbus Service Bulletin A320-49-1077, Revision 04, dated February 27, 2013.

    • Airbus Service Bulletin A320-49-1098, dated June 21, 2011.

    • Airbus Service Bulletin A320-49-1102, dated January 3, 2012.

    • Airbus Service Bulletin A320-49-1107, Revision 02, dated May 10, 2016.

    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 and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

    Costs of Compliance

    We estimate that this proposed AD affects 1,182 airplanes of U.S. registry.

    The actions required by AD 2007-13-08, and retained in this proposed AD, take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2007-13-08 is $340 per product.

    We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $401,880, or $340 per product.

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

    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 removing Airworthiness Directive (AD) 2007-13-08, Amendment 39-15112 (72 FR 33877, June 20, 2007), and adding the following new AD: Airbus: Docket No. FAA-2016-9567; Directorate Identifier 2016-NM-147-AD. (a) Comments Due Date

    We must receive comments by February 21, 2017.

    (b) Affected ADs

    This AD replaces AD 2007-13-08, Amendment 39-15112 (72 FR 33877, June 20, 2007) (“AD 2007-13-08”).

    (c) Applicability

    This AD applies to Airbus airplanes identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD, all manufacturer serial numbers, certificated in any category.

    (1) Model A318-111, -112, -121, and -122 airplanes.

    (2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

    (3) Model A320-211, -212, -214, -231, -232, and -233 airplanes.

    (4) Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 49, Airborne Auxiliary Power.

    (e) Reason

    This AD was prompted by a report of a fire in the auxiliary power unit (APU) air intake. An analysis demonstrated that, following numerous unsuccessful APU start attempts in flight, there is a risk of reverse airflow, leading to flame propagation to the APU air inlet and air intake duct. This AD was also prompted by the determination that AD 2007-13-08 only addresses the unsafe condition for certain airplanes. We are issuing this AD to detect and correct reverse flow during APU startup, leading to flame propagation in the APU air inlet and intake duct. Such conditions could result in an in-flight fire in the APU area.

    (f) Compliance

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

    (g) Repetitive Inspections and Corrective Actions

    Except as provided by paragraph (i) of this AD, within 600 flight hours after July 25, 2007 (the effective date of AD 2007-13-08), or within 60 days after the effective date of this AD, whichever occurs later: Inspect the APU starter motor, APU air inlet plenum, and APU air intake of each affected APU identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD for discrepancies; and do all applicable corrective actions before further flight; in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-49-1068, Revision 01, dated February 2, 2006. Repeat the inspection thereafter at intervals not to exceed 600 flight hours.

    Table 1 to Paragraphs (g), (h), (i)(2), (j), and (k) of This AD—Affected APU and Electronic Control Box (ECB) APU ECB Part Numbers (P/N) APIC APS 3200 4500003D, 4500003E, 4500003F, 4500003G, 4500003H, or 4500003J. Honeywell 131-9A 3888394-120201, 3888394-121202, 3888394-121203, 3888394-221202, or 3888394-221203. Honeywell GTCP36-300 307950-1, 307950-2, 307950-3, 307950-4, 304640-1, 304640-2, 304640-3, 304640-4, 304817-1, or 304817-2. (h) Repetitive Cleanings

    Except as provided by paragraph (i) of this AD, prior to the accumulation of 2,400 flight hours since first flight of the airplane, or within 600 flight hours after July 25, 2007 (the effective date of AD 2007-13-08), or within 60 days after the effective date of this AD, whichever occurs latest, unless accomplished previously in accordance with Airbus Service Bulletin A320-49-1098, dated June 21, 2011: Clean the APU air intake of each affected APU identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-49-1068, Revision 01, dated February 2, 2006. Repeat the cleaning task thereafter at intervals not to exceed 2,400 flight hours.

    (i) Exceptions to Requirements in Paragraphs (g) and (h) of This AD

    (1) For airplanes equipped with an APU and associated ECB part number identified in table 2 to paragraphs (i)(1), (i)(2), and (j) of this AD, the actions specified in paragraphs (g) and (h) of this AD are not required.

    Table 2 to Paragraphs (i)(1), (i)(2), and (j) of This AD—Non-Affected ECB APU ECB Part Numbers (P/N) APIC APS 3200 4500003K, 4500003L, or 4500003M. Honeywell 131-9A 3888394-121204, 3888394-121205, 3888394-221204, 3888394-221205, or 3888394-321206. Honeywell GTCP36-300 304640-5, 304817-3, or 3888394-230301.

    (2) For airplanes on which Airbus Modification 35803, 35936, 152289, 152645, 155015, or 157848 has been embodied in production, the actions specified in paragraphs (g) and (h) of this AD are not required provided that, within 30 days after the effective date of this AD, the applicable actions specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD are done.

    (i) The part number of the installed ECB is identified.

    (ii) Any affected ECB identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD that is found to be installed is replaced with an ECB having a part number identified in table 2 to paragraphs (i)(1), (i)(2), and (j) of this AD, as applicable to the APU installed on the airplane; and the replacement is done in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (i)(2)(ii)(A), (i)(2)(ii)(B), (i)(2)(ii)(C), (i)(2)(ii)(D), (i)(2)(ii)(E), or (i)(2)(ii)(F) of this AD; or using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency (EASA), or Airbus's EASA Design Organization Approval (DOA).

    (A) Airbus Service Bulletin A320-49-1070, dated July 28, 2006.

    (B) Airbus Service Bulletin A320-49-1075, Revision 01, dated December 1, 2006.

    (C) Airbus Service Bulletin A320-49-1077, Revision 04, dated February 27, 2013.

    (D) Airbus Service Bulletin A320-49-1098, dated June 21, 2011.

    (E) Airbus Service Bulletin A320-49-1102, dated January 3, 2012.

    (F) Airbus Service Bulletin A320-49-1107, Revision 02, dated May 10, 2016.

    (3) For airplanes on which an APU ECB having a part number approved after the effective date of this AD is installed, the actions specified in paragraphs (g) and (h) of this AD are not required, provided the conditions specified in paragraphs (i)(3)(i) and (i)(3)(ii) of this AD are met.

    (i) The part number must be approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.

    (ii) The installation must be accomplished in accordance with airplane modification instructions approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.

    (j) Optional Terminating Action

    Replacing an affected ECB identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD with an ECB having a part number identified in table 2 to paragraphs (i)(1), (i)(2), and (j) of this AD, as applicable to the APU installed on the airplane, constitutes terminating action for the repetitive inspections required by paragraphs (g) and (h) of this AD. The replacement must be done in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (i)(2)(ii) (A), (i)(2)(ii)(B), (i)(2)(ii)(C), (i)(2)(ii)(D), (i)(2)(ii)(E), or (i)(2)(ii)(F) of this AD, or using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.

    (k) Parts Installation Prohibition

    As of the effective date of this AD, no person may install on any airplane an APU with an associated ECB identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD.

    (l) Credit for Previous Actions

    This paragraph provides credit for actions specified in paragraphs (i)(2) and (j) of this AD, if those actions were performed before the effective date of this AD using any of the service information specified in paragraphs (l)(1) through (l)(7) of this AD.

    (1) Airbus Service Bulletin A320-49-1075, dated September 22, 2006, which was incorporated by reference in AD 2007-13-08.

    (2) Airbus Service Bulletin A320-49-1077, dated March 21, 2007, which is not incorporated by reference in this AD.

    (3) Airbus Service Bulletin A320-49-1077, Revision 01, dated August 9, 2007, which is not incorporated by reference in this AD.

    (4) Airbus Service Bulletin A320-49-1077, Revision 02, dated July 1, 2008, which is not incorporated by reference in this AD.

    (5) Airbus Service Bulletin A320-49-1077, Revision 03, dated December 8, 2008, which is not incorporated by reference in this AD.

    (6) Airbus Service Bulletin A320-49-1107, dated November 5, 2013, which is not incorporated by reference in this AD.

    (7) Airbus Service Bulletin A320-49-1107, Revision 01, dated July 28, 2015, which is not incorporated by reference in this AD.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, 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 Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149. Information may be emailed to: [email protected]

    (i) 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. The AMOC approval letter must specifically reference this AD.

    (ii) AMOCs approved previously for AD 2007-13-08 are approved as AMOCs for the corresponding provisions of paragraphs (g) and (h) of this AD.

    (2) Contacting the Manufacturer: As of the effective date of this AD, 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 Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0176, dated August 31, 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-2016-9567.

    (2) For service information identified in this AD, contact Airbus, Airworthiness Office-EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; Internet: http://www.airbus.com. You may view this service information at the FAA, Transport Airplane Directorate, 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 December 23, 2016. Thomas Groves, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31960 Filed 1-5-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9570; Directorate Identifier 2016-NM-185-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 all The Boeing Company Model 707 airplanes and Model 720 and 720B series airplanes. This proposed AD was prompted by a determination that undetected web fatigue cracking caused by oil canning may exist in the station 1440 aft pressure bulkhead web. This proposed AD would require repetitive detailed inspections for any oil canning or cracking of the station 1440 aft pressure bulkhead web, and related corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by February 21, 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 referenced service information at the FAA, Transport Airplane Directorate, 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-2016-9570.

    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-2016-9570; 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 proposed AD, 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:

    George Garrido, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; 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-2016-9570; Directorate Identifier 2016-NM-185-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD 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 proposed AD.

    Discussion

    We have determined that undetected web fatigue cracking caused by oil canning may exist in the station 1440 aft pressure bulkhead Web. Oil canning is defined as a locally buckled forward area of the aft pressure bulkhead web between the radial stiffeners and the circumferential tear straps, which can pop outward when the fuselage is pressurized, causing a stress reversal cycle during each flight that may lead to fatigue cracking of the aft pressure bulkhead web. Oil canning may lead to cracking and related damage (including sharp creases; gouges; cracks; deformation to a radial stiffener, circumferential tear strap, Y-chord, or terminal fitting splice plate; or damaged holes) or irregularity (including loose or missing fasteners, pressure leakage, fasteners within 1 inch of any oil canning location, or an oil canning location within 2 inches of another oil canning location). This condition, if not corrected, could result in an undetected fatigue crack in the aft pressure bulkhead web growing to a length that could result in reduced structural integrity of the web and lead to rapid decompression of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing 707 Alert Service Bulletin A3543, dated September 15, 2016 (“ASB A3543, Revision 0”). The service information describes procedures for repetitive detailed inspections for any oil canning or cracking of the station 1440 aft pressure bulkhead web, and related corrective actions. 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 these same type designs.

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9570.

    The phrase “related investigative actions” is used in this proposed AD. Related investigative actions are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

    The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Differences Between This Proposed AD and the Service Information

    ASB A3543, Revision 0, specifies to contact the manufacturer for certain instructions, but this proposed AD would require using repair methods, modification deviations, and alteration deviations in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Costs of Compliance

    We estimate that this proposed AD affects 12 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
  • Inspection for oil canning 6 work-hours × $85 per hour = $510 per inspection cycle $0 $510 per inspection cycle $6,120 per inspection cycle

    We estimate the following costs to do any additional inspections that would be required based on the results of the initial proposed inspection. These cost estimates are for one canning location. We have no way of determining the number of aircraft that might need these actions:

    On-condition Costs Action Labor cost Parts cost Cost per
  • product
  • Oil canning zone determination and inspection 1 work-hour × 85 per hour = $85 $0 $85 Detailed inspection and eddy current inspection for cracks 13 work-hours × $85 per hour = 1,105 0 $1,105 High frequency eddy current inspection for crack location, length, and orientation 2 work-hours × 85 per hour = 170 0 $170

    We have received no definitive data that would enable us to provide cost estimates for certain corrective actions specified in this proposed 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.

    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-2016-9570; Directorate Identifier 2016-NM-185-AD. (a) Comments Due Date

    We must receive comments by February 21, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the airplanes, certificated in any category, as identified in Boeing 707 Alert Service Bulletin A3543, dated September 15, 2016 (“ASB A3543, Revision 0”), and in paragraphs (c)(1) and (c)(2) of this AD.

    (1) The Boeing Company Model 707-100 Long Body, -200, -100B Long Body, and -100B Short Body series airplanes; and Model 707-300, -300B, -300C, and -400 series airplanes.

    (2) The Boeing Company Model 720 and 720B series airplanes.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by a determination that undetected web fatigue cracking caused by oil canning may exist in the station 1440 aft pressure bulkhead web. We are issuing this AD to detect and correct fatigue cracking of the aft pressure bulkhead web, which could grow in length and ultimately reduce the structural integrity of the web and lead to rapid decompression of the airplane.

    (f) Compliance

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

    (g) Repetitive Inspections and Related Investigative and Corrective Actions

    At the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0, except as required by paragraph (h)(1) of this AD: Do all applicable actions specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, in accordance with the Accomplishment Instructions of ASB A3543, Revision 0, except as required by paragraph (h)(2) of this AD.

    (1) Do a detailed inspection of the station 1440 aft pressure bulkhead web for any oil canning. Repeat the inspection at the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0.

    (2) Do all applicable related investigative actions, including detailed, eddy current, and high frequency eddy current (HFEC) inspections. Repeat the applicable inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0.

    (3) Do all applicable corrective actions at the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0.

    (h) Service Information Exceptions

    (1) Where ASB A3543, Revision 0, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) Where Boeing Alert Service Bulletin A3543, dated September 15, 2016, specifies to contact Boeing for repair instructions, and specifies that action as Required for Compliance (RC), this AD requires repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (i) Special Flight Permit

    Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the airplane can be repaired, but if any crack is found as identified in ASB A3543, Revision 0, concurrence by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA, is required before issuance of the special flight permit.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles ACO, 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 ACO, send it to the attention of the person identified in paragraph (k)(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, 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) Except as required by paragraph (h) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) of this AD 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. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. 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.

    (k) Related Information

    (1) For more information about this AD, contact George Garrido, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; 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 Airplane Directorate, 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 December 27, 2016. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31964 Filed 1-5-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-103477-14] RIN 1545-BL96 Chapter 4 Regulations Relating to Verification and Certification Requirements for Certain Entities and Reporting by Foreign Financial Institutions AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking; notice of proposed rulemaking by cross-reference to temporary regulation.

    SUMMARY:

    This document contains proposed regulations under chapter 4 of Subtitle A (sections 1471 through 1474) of the Internal Revenue Code of 1986 (Code) describing the verification requirements (including certifications of compliance) and events of default for entities that agree to perform the chapter 4 due diligence, withholding, and reporting requirements on behalf of certain foreign financial institutions (FFIs) or the chapter 4 due diligence and reporting obligations on behalf of certain non-financial foreign entities. These proposed regulations also describe the certification requirements and procedures for IRS's review of certain trustees of trustee-documented trusts and the procedures for IRS's review of periodic certifications provided by registered deemed-compliant FFIs. In addition, these proposed regulations describe the procedures for future modifications to the requirements for certifications of compliance for participating FFIs. These proposed regulations also describe the requirements for certifications of compliance for participating FFIs that are members of consolidated compliance groups. In addition, in the Rules and Regulations section of this issue of the Federal Register, the Department of the Treasury (Treasury Department) and IRS are issuing temporary regulations that provide additional guidance under chapter 4 (temporary chapter 4 regulations). The text of the temporary chapter 4 regulations also serves as the text of the regulations contained in this document that are proposed by cross-reference to the temporary chapter 4 regulations. The preamble to the temporary chapter 4 regulations explains the temporary chapter 4 regulations and these proposed regulations that cross-reference to the temporary chapter 4 regulations.

    DATES:

    Written or electronic comments and requests for a public hearing must be received by April 6, 2017.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-103477-14), Internal Revenue Service, Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-103477-14), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224; or sent electronically via the Federal eRulemaking Portal at http://www.regulations.gov (IRS-REG-103477-14).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Kamela Nelan, (202) 317-6942; concerning submissions of comments and/or requests for a public hearing, Regina Johnson, (202) 317-6901 (not toll free numbers).

    SUPPLEMENTARY INFORMATION:

    Background I. In General A. Chapter 4

    Sections 1471 through 1474 under chapter 4 of Subtitle A (chapter 4) were added to the Code on March 18, 2010, as part of the Hiring Incentives to Restore Employment Act of 2010, Public Law 111-147. Chapter 4 (commonly known as the Foreign Account Tax Compliance Act, or FATCA) generally requires withholding agents to withhold tax on certain payments to foreign financial institutions (FFIs) that do not agree to report certain information to the IRS regarding their U.S. accounts under section 1471(b)(1). Chapter 4 also generally requires withholding agents to withhold tax on certain payments to certain non-financial foreign entities (NFFEs) that do not provide to the withholding agent information on their substantial United States owners (substantial U.S. owners) or a certification that they have no such owners. On January 28, 2013, final regulations (TD 9610) under chapter 4 were published in the Federal Register (78 FR 5874), and on September 10, 2013, corrections to the final regulations were published in the Federal Register (78 FR 55202). TD 9610 and the September 2013 corrections are referred to collectively in this preamble as the 2013 final regulations. On March 6, 2014, temporary regulations (TD 9657) under chapter 4 were published in the Federal Register (79 FR 12812) and corrections to the temporary regulations were published in the Federal Register on July 1, 2014, and November 18, 2014 (79 FR 37175 and 78 FR 68619, respectively). In this preamble, TD 9657 and the corrections thereto are referred to collectively as the 2014 temporary regulations, and together with the 2013 final regulations, as the chapter 4 regulations. A notice of proposed rulemaking cross-referencing the 2014 temporary regulations was published in the Federal Register on March 6, 2014 (79 FR 12868).

    To address situations where foreign law would prevent an FFI from reporting directly to the IRS the information required by chapter 4, the Treasury Department, in collaboration with certain foreign governments, developed two alternative model intergovernmental agreements, known as the Model 1 IGA and the Model 2 IGA. Under the Model 1 IGA, an FFI that is treated as a reporting Model 1 FFI is treated as complying with and not subject to withholding under section 1471 provided that the FFI complies with the requirements specified in the Model 1 IGA and reports information about its U.S. accounts to the Model 1 IGA jurisdiction, which is followed by the automatic exchange of that information on a government-to-government basis with the United States. Under the Model 2 IGA, an FFI that is treated as a reporting Model 2 FFI follows the terms of the FFI agreement and reports information about U.S. accounts directly to the IRS. See Revenue Procedure 2014-38, 2014-29 I.R.B. 131, as may be amended, for the FFI agreement. An FFI identified as a nonreporting financial institution pursuant to a Model 1 or Model 2 IGA is not required to report information on U.S. accounts unless specifically required as a condition of its applicable chapter 4 status.

    II. Background on Sponsored Entities A. In General

    The chapter 4 regulations permit certain FFIs and NFFEs to be sponsored by other entities for purposes of satisfying their chapter 4 requirements. Under the 2013 final regulations, an FFI treated as complying with the requirements of section 1471(b)(1) (a deemed-compliant FFI) includes a sponsored FFI. In addition, the 2014 temporary regulations provide that a NFFE excepted from providing information regarding its substantial U.S. owners to a withholding agent (an excepted NFFE) includes a NFFE that is a direct reporting NFFE or a sponsored direct reporting NFFE. In the preamble to the 2014 temporary regulations, the Treasury Department and IRS announced that regulations describing the verification requirements of a sponsoring entity of a sponsored FFI or sponsored direct reporting NFFE (sponsored entities) would be proposed and issued separately from the 2014 temporary regulations.

    B. Background on Sponsored FFIs and Trustee-Documented Trusts

    The chapter 4 regulations provide two general categories of deemed-compliant FFIs: Registered deemed-compliant FFIs and certified deemed-compliant FFIs. A registered deemed-compliant FFI includes an FFI that satisfies the requirements of § 1.1471-5(f)(1)(i)(F)(1) or (2) to qualify as either a sponsored investment entity or a sponsored controlled foreign corporation. A certified deemed-compliant FFI includes an FFI that satisfies the requirements of § 1.1471-5(f)(2)(iii) to qualify as a sponsored, closely-held investment vehicle. The chapter 4 regulations provide that a sponsored FFI under any of the foregoing sections must have an agreement with a sponsoring entity under which the sponsoring entity performs, on behalf of the sponsored FFI, all of the due diligence, withholding, reporting, and other requirements that the FFI would have been required to perform if it were a participating FFI. A sponsoring entity of a sponsored FFI must register with the IRS as a sponsoring entity on Form 8957, FATCA Registration, via the FATCA registration Web site available at http://www.irs.gov/fatca, and must also register any sponsored investment entity or sponsored controlled foreign corporation within the time specified in § 1.1471-5(f)(1)(i)(F)(3)(iii). The 2014 temporary regulations reserve on the rules for verification of compliance and the events of default for a sponsoring entity of a sponsored FFI.

    The Model 1 and Model 2 IGAs treat certain financial institutions as nonreporting financial institutions. Under Annex II of the Model 1 IGA, a nonreporting financial institution that is a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle is treated as a deemed-compliant FFI for purposes of section 1471. A sponsoring entity of a sponsored entity subject to a Model 1 IGA agrees to perform, on behalf of the sponsored entity, all of the due diligence, withholding, reporting, and other requirements that the sponsored entity would have been required to perform if it were a reporting Model 1 financial institution. As a result, a sponsoring entity of a sponsored entity subject to a Model 1 IGA reports to the applicable Model 1 IGA jurisdiction with respect to the financial accounts maintained by the sponsored entity.

    Under the Model 1 and Model 2 IGAs, a nonreporting financial institution includes a financial institution that “otherwise qualifies as a deemed-compliant FFI . . . under relevant U.S. Treasury Regulations.” Thus, a financial institution covered by a Model 1 or Model 2 IGA may choose to qualify as a sponsored investment entity, controlled foreign corporation, or closely held investment vehicle pursuant to § 1.1471-5(f) instead of Annex II of the Model 1 or Model 2 IGA. In such a case, the financial institution must satisfy all of the requirements applicable to such an entity in the regulations, including the requirement for the sponsoring entity to report information directly to the IRS, even in the case of a financial institution covered by a Model 1 IGA.

    Under Annex II of the Model 2 IGA, a financial institution that is a sponsored investment entity or sponsored controlled foreign corporation is treated as a registered deemed-compliant FFI, and a financial institution that is a sponsored, closely held investment vehicle is treated as a certified deemed-compliant FFI. A sponsoring entity of a sponsored entity subject to a Model 2 IGA agrees to perform, on behalf of the sponsored entity, all of the due diligence, withholding, reporting, and other requirements that the sponsored entity would have been required to perform if it were a reporting Model 2 FFI. As a result, the sponsoring entity of a sponsored entity subject to a Model 2 IGA registers with the IRS and reports to the IRS with respect to financial accounts of the sponsored entity. Annex II of the Model 2 IGA also provides that a registered deemed-compliant FFI must register with the IRS on the FATCA registration Web site and have its responsible officer certify every three years to the IRS that all of the requirements for the deemed-compliant category claimed by the financial institution have been satisfied since July 1, 2014.

    The Model 1 and Model 2 IGAs treat certain FFIs that are trusts as nonreporting financial institutions. Under Annex II of the Model 1 IGA, a financial institution that is a trustee-documented trust is treated as a deemed-compliant FFI. Under Annex II of the Model 2 IGA, a financial institution that is a trustee-documented trust is treated as a certified deemed-compliant FFI. Under both the Model 1 IGA and the Model 2 IGA, a trust qualifies as a trustee-documented trust provided that the trustee of the trust is a U.S. financial institution, reporting Model 1 FFI, or participating FFI that reports all of the information required to be reported pursuant to the IGA with respect to U.S. accounts or U.S. reportable accounts (as applicable) of the trust. A trustee of a trustee-documented trust subject to a Model 1 or Model 2 IGA should register with the IRS. A trustee of a trustee-documented trust subject to a Model 2 IGA reports to the IRS with respect to the trust, whereas a trustee of a trustee-documented trust subject to a Model 1 IGA reports to the applicable Model 1 IGA jurisdiction.

    C. Background on Sponsored Direct Reporting NFFEs

    Section 1472(c)(1)(G) permits the Treasury Department and IRS to issue regulations exempting withholding agents from withholding or reporting under section 1472(a) with respect to payments beneficially owned by certain persons identified by the Treasury Department and IRS, which are referred to in the chapter 4 regulations as excepted NFFEs. As noted in Part II.A of this Background, the 2014 temporary regulations include direct reporting NFFEs as a class of excepted NFFEs.

    A direct reporting NFFE is a NFFE that elects to report information about its substantial U.S. owners directly to the IRS (rather than to the withholding agent) and that meets the requirements of § 1.1472-1(c)(3). A direct reporting NFFE may elect to be treated as a sponsored direct reporting NFFE if another entity, other than a nonparticipating FFI, agrees to act as its sponsoring entity for performing all of the due diligence, reporting, and other requirements that the NFFE would have been required to perform as a direct reporting NFFE. The sponsoring entity of a sponsored direct reporting NFFE must register with the IRS as a sponsoring entity and must also register the NFFE with the IRS as a sponsored direct reporting NFFE as required in the chapter 4 regulations. The sponsoring entity must also comply with the verification procedures and other compliance-related requirements provided in the regulations. The 2014 temporary regulations reserve on the verification procedures and the events of default for a sponsoring entity of a sponsored direct reporting NFFE.

    Under section VI(b) of Annex I of the Model 1 and Model 2 IGAs, an active NFFE includes a NFFE that is treated as an excepted NFFE under the chapter 4 regulations. An active NFFE (including a direct reporting NFFE) does not need to be reported as a U.S. account by a reporting Model 1 FFI or reporting Model 2 FFI with which the NFFE holds an account.

    III. Background on Verification Requirements for Participating FFIs and Compliance FIs

    Under the chapter 4 regulations, a participating FFI is required to establish and implement a compliance program for satisfying its requirements under § 1.1471-4. The responsible officer of the FFI must periodically certify to the IRS that the FFI maintains effective internal controls or, if the responsible officer cannot make this certification, he or she must make a qualified certification. If there is an event of default, the IRS will notify the FFI and request remediation. The FFI must respond to the notice of default and provide information to the IRS. If the FFI does not provide a response, the IRS may deliver a notice of termination that terminates the FFI's participating FFI status.

    The chapter 4 regulations permit a participating FFI that is a member of an expanded affiliated group to elect to be part of a consolidated compliance program under the authority of a participating FFI, reporting Model 1 FFI, or U.S. financial institution that is a member of the same expanded affiliated group (compliance FI). The compliance FI must establish and maintain the consolidated compliance program and perform a consolidated periodic review on behalf of each member FFI that elects to be part of the consolidated compliance program (electing FFI).

    IV. Background on Certification Requirements for Registered Deemed-Compliant FFIs

    An FFI may be a registered deemed-compliant FFI if it meets the requirements of a class of FFIs specified in § 1.1471-5(f)(1). Certain classes of registered deemed-compliant FFIs have compliance obligations as a condition of their status under this section. For example, a registered deemed-compliant FFI that is a nonreporting member of a participating FFI group under § 1.1471-5(f)(1)(i)(B) must monitor its accounts to ensure that it identifies any account that becomes a U.S. account or an account held by a recalcitrant account holder or nonparticipating FFI and meets its requirement to transfer or close such accounts (or become a participating FFI). In order for the IRS to verify that a registered deemed-compliant FFI meets the requirements of its applicable deemed-compliant status and is satisfying any such compliance obligations, the chapter 4 regulations require a registered deemed-compliant FFI to have its responsible officer certify every three years to the IRS that the FFI meets the requirements for its applicable deemed-compliant status.

    Explanation of Provisions I. Sponsoring Entities of Sponsored FFIs

    These proposed regulations provide verification requirements for a sponsoring entity of a sponsored FFI that are generally similar to the verification requirements for a compliance FI. See Part IV of this Explanation of Provisions for the verification requirements for consolidated compliance programs. Under these proposed regulations, a sponsoring entity must maintain a compliance program to oversee its compliance with respect to each sponsored FFI for purposes of satisfying the deemed-compliant status requirements of § 1.1471-5(f)(1)(i)(F) or (f)(2)(iii) or an applicable Model 2 IGA. The deemed-compliant status requirements include: (i) The assumption by the sponsoring entity of due diligence, withholding, and reporting obligations on behalf of each sponsored FFI, and (ii) compliance with the additional requirements for status as a sponsoring entity, such as registering with the IRS.

    These proposed regulations consolidate all of the verification requirements for a sponsoring entity. The 2014 temporary regulations, in § 1.1471-5T(f)(1)(i)(F)(3)(vi), (f)(1)(i)(F)(3)(vii), (f)(2)(iii)(D)(4), and (f)(2)(iii)(D)(5), require a sponsoring entity to perform the verification procedures described in § 1.1471-4(f) on behalf of a sponsored FFI and also perform the verification procedures described in § 1.1471-5(j) and (k) on behalf of itself. The 2014 temporary regulations, in § 1.1471-5T(j) and (k), reserved such verification procedures. These proposed regulations include all of the sponsoring entity's verification requirements in proposed § 1.1471-5(j).

    These proposed regulations also require that a sponsoring entity appoint a responsible officer (as defined in § 1.1471-1(b)(116) of these proposed regulations) to oversee the compliance of the sponsoring entity with respect to each sponsored FFI for purposes of satisfying the requirements of § 1.1471-5(f)(1)(i)(F) or (f)(2)(iii) or of an applicable Model 2 IGA. The responsible officer must certify to the IRS by July 1 of the calendar year following the end of each certification period that the sponsoring entity is compliant with the requirements to be a sponsoring entity and maintains effective internal controls with respect to all sponsored FFIs for which it acts (or provides a qualified certification) on the form and in the manner prescribed by the IRS. A sponsored FFI is not required to appoint its own responsible officer. Although the preamble to the 2014 temporary regulations states that under proposed regulations a sponsoring entity would be required to make two separate compliance certifications (one on behalf of its sponsored FFI(s) and another on the sponsoring entity's own behalf), the Treasury Department and IRS have determined that a single certification is sufficient for this purpose.

    Under these proposed regulations, in general, a sponsoring entity must make a certification regarding its compliance with respect to all sponsored FFIs for which it acts during the certification period. However, with respect to a certification period, a sponsoring entity is generally not required to certify for a sponsored FFI that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored FFI for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity. However, the preceding sentence does not apply with respect to a sponsored FFI that, immediately before the FFI agrees to be sponsored by the sponsoring entity, was a participating FFI, registered deemed-compliant FFI, or sponsored, closely held investment vehicle. The sponsoring entity may certify for a sponsored FFI described in the preceding sentence for the portion of the certification period prior to the date that the FFI first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the FFI (or the FFI's sponsoring entity, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity. The first certification period begins on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014.

    The requirements for the certification of compliance may be modified to include additional certifications or information (such as quantitative or factual information related to the sponsoring entity's compliance), provided that such additional information or certifications are published at least 90 days before being made effective in order to allow for public comment. The Treasury Department and IRS intend to coordinate any such modification to the requirements for the certification of compliance for sponsoring entities with any modification to the requirements for the certification of compliance for participating FFIs. See Part IV of this Explanation of Provisions for certifications required by participating FFIs.

    These proposed regulations provide that the responsible officer of a sponsoring entity must make the certification described in § 1.1471-4(c)(7) (preexisting account certification of a participating FFI) with respect to each sponsored FFI that enters into the sponsorship agreement with the sponsoring entity during the certification period. However, with respect to a certification period, the preexisting account certification is not required for a sponsored FFI if, immediately before it first agrees to be sponsored by the sponsoring entity, the FFI was a participating FFI, a sponsored FFI, or a registered deemed-compliant FFI that is a local FFI or a restricted fund, and the FFI (or the FFI's former sponsoring entity, if applicable) provides a written certification to the sponsoring entity that the FFI has made the preexisting account certification required of it, provided that the sponsoring entity does not know that such certification is unreliable or incorrect. Furthermore, since a participating FFI could have up to two years to complete the required due diligence on its preexisting accounts under § 1.1471-4(c)(3)(ii) and (c)(5)(i), the preexisting account certification is not required for a sponsored FFI that first agrees to be sponsored by the sponsoring entity during the two year period prior to the end of such certification period, provided that the sponsoring entity makes the preexisting account certification for such FFI for the subsequent certification period. The preexisting account certification for the certification period must be submitted by the due date of the sponsoring entity's certification of compliance for the certification period and on the form and in the manner prescribed by the IRS. With respect to a sponsored FFI for which the sponsoring entity is required to make a preexisting account certification, a preexisting obligation means any account, instrument, or contract (including any debt or equity interest) maintained, executed, or issued by the sponsored FFI that is outstanding on the earlier of the date the FFI is issued a GIIN as a sponsored FFI of the sponsoring entity or the date the FFI or the sponsoring entity first represents to a withholding agent or financial institution that the FFI is a sponsored FFI of the sponsoring entity.

    These proposed regulations permit the IRS to make general inquiries to a sponsoring entity regarding its compliance with its applicable requirements, similar to the general inquiries the IRS may make to a participating FFI with respect to its compliance (as provided in final regulations under chapter 4 published together with the temporary chapter 4 regulations). These proposed regulations provide that the IRS may request any additional information from the sponsoring entity (including a copy of the sponsorship agreement that the sponsoring entity has entered into with each sponsored FFI) necessary to determine its compliance with the due diligence, withholding, and reporting requirements of § 1.1471-4 or an applicable Model 2 IGA with respect to each sponsored FFI and to assist the IRS with its review of account holder compliance with tax reporting requirements. These proposed regulations also provide that if the IRS determines that the sponsoring entity may not have substantially complied with the requirements of a sponsoring entity with respect to any sponsored FFI for which it acts, the IRS may make inquiries to the sponsoring entity regarding its compliance with the requirements of a sponsoring entity and may request the performance of specified review procedures. Inquiries regarding the compliance of a sponsoring entity with respect to a sponsored FFI subject to the requirements of an applicable Model 2 IGA will be made using the procedures described in these proposed regulations, except as otherwise provided in an applicable Model 2 IGA.

    These proposed regulations describe the events of default for a sponsoring entity and the termination procedures following an event of default. The Treasury Department and IRS recognize that some events of default may relate only to a particular sponsored FFI (or several such FFIs) for which the sponsoring entity acts and thus should not affect the statuses of other sponsored FFIs for which the sponsoring entity acts or the status of the sponsoring entity. In other cases, an event of default may relate to a sponsoring entity's failure to comply with its own requirements, such as when it fails to establish and maintain a compliance program or perform a periodic review. Accordingly, these proposed regulations provide IRS the discretion to determine whether, based on facts and circumstances, an event of default should result in the termination of the sponsoring entity's status as a sponsoring entity, the deemed-compliant statuses of one or more sponsored FFIs, or both the status of the sponsoring entity and the statuses of one or more sponsored FFIs. If a sponsoring entity's status is terminated, the sponsoring entity may not reregister as a sponsoring entity for any sponsored FFI or any sponsored entity subject to a Model 1 IGA without prior written approval from the IRS. A sponsored FFI whose sponsoring entity's status is terminated may register on the FATCA registration Web site as a participating FFI or registered deemed-compliant FFI or may be registered on the FATCA registration Web site as a sponsored FFI of a new sponsoring entity (other than an entity that has a relationship to the terminated sponsoring entity described in section 267(b)), as applicable. However, if the sponsored FFI's status is terminated (independent of a termination of the sponsoring entity), the sponsored FFI must obtain prior written approval from the IRS in order to register as a participating FFI or registered deemed-compliant FFI or be registered as a sponsored FFI of a new sponsoring entity.

    The definition of sponsored FFI in the 2013 final regulations is limited to an entity that is a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle under § 1.1471-5(f)(1)(i)(F) or § 1.1471-5(f)(2)(iii). These proposed regulations expand the definition of sponsored FFI to also include a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle treated as a deemed-compliant FFI under an applicable Model 2 IGA. These proposed regulations do not impose verification requirements or specify events of default for a sponsoring entity of a sponsored entity subject to an applicable Model 1 IGA. The obligations of such a sponsoring entity are governed by the laws and requirements of the applicable Model 1 IGA jurisdiction. However, the IRS may treat a sponsored entity covered by a Model 1 IGA as a nonparticipating FFI pursuant to Article 5(2)(b) of an applicable Model 1 IGA if the IRS determines that there is significant non-compliance with the obligations of the IGA by the sponsored entity that has not been resolved within 18 months. In addition, pursuant to the termination procedures described in the previous paragraph, the IRS may revoke the status of a sponsoring entity based on an event of default relating to one or more sponsored FFIs. Consistent with Annex II of the Model 1 IGA, such revocation would prevent the sponsoring entity from sponsoring an FFI subject to a Model 1 IGA. The IRS may also notify such Model 1 IGA jurisdiction of the revocation. A sponsored entity subject to a Model 1 IGA whose sponsor's status is terminated would need to become a reporting Model 1 FFI, obtain a new sponsor, or meet the requirements of another deemed-compliant status.

    As described in Part II.B of the Background of this preamble, the Model 2 IGA allows certain sponsored FFIs to be treated as deemed-compliant FFIs and provides that the IRS may revoke a sponsoring entity's status if there is a material failure by the sponsoring entity to comply with the obligations described in Annex II of the IGA. Accordingly, the verification requirements and events of default in these proposed regulations apply to a sponsoring entity of a sponsored FFI subject to an applicable Model 2 IGA. In addition, the procedures for IRS inquiries specified in these proposed regulations apply to a sponsoring entity of a sponsored FFI subject to an applicable Model 2 IGA except to the extent otherwise provided in the applicable Model 2 IGA. Although Annex II of the Model 2 IGA permits the IRS to revoke a sponsoring entity's status upon a material failure (as described above), because the Treasury Department and IRS believe that a consistent standard for when to terminate a sponsoring entity's status should apply, these proposed regulations provide that the IRS will not revoke the status of a sponsoring entity of a sponsored FFI subject to a Model 2 IGA unless there is an event of default and the procedures for termination described in these proposed regulations have been applied.

    II. Trustees of Trustee-Documented Trusts

    These proposed regulations provide that a trustee of a trustee-documented trust subject to a Model 2 IGA shall appoint a responsible officer who will maintain a compliance program and oversee the trustee's compliance with respect to each trustee-documented trust for purposes of satisfying the requirements of an applicable Model 2 IGA. The responsible officer must perform a periodic review of the sufficiency of the trustee's compliance program for each certification period. The responsible officer must also certify to the IRS that the trustee has established a compliance program, performed a periodic review, and reported to the IRS all of the information required to be reported with respect to each trustee-documented trust for each certification period. Certain late-joining trustee-documented trusts may be excluded from a certification under rules similar to those provided in these proposed regulations for sponsored FFIs. The IRS will not unilaterally revoke the status of, or issue a notice of default to, a trustee of such a trust. Instead, subject to the requirements of an applicable Model 2 IGA, these proposed regulations permit the IRS to make inquiries to the trustee regarding its compliance with its applicable requirements and notify the Model 2 IGA jurisdiction if the trustee has not complied with its requirements with respect to one or more trustee-documented trusts established in that jurisdiction. The IRS may also notify an applicable Model 1 IGA jurisdiction of the trustee's non-compliance with respect to its requirements as a trustee of a trustee-documented trust subject to a Model 2 IGA if the trustee also acts on behalf of trustee-documented trusts in the Model 1 IGA jurisdiction or if the trustee is located in the Model 1 IGA jurisdiction.

    III. Sponsoring Entities of Sponsored Direct Reporting NFFEs

    These proposed regulations include verification requirements and the events of default for a sponsoring entity of a sponsored direct reporting NFFE. These proposed regulations also specify the requirements for a sponsorship agreement between a sponsoring entity and each sponsored direct reporting NFFE for which it acts.

    Under these proposed regulations, a sponsoring entity must appoint a responsible officer to oversee the compliance of the sponsoring entity with respect to each sponsored direct reporting NFFE. The responsible officer of the sponsoring entity must make a periodic certification to the IRS on the form and in the manner prescribed by the IRS. The certification requirements of a sponsoring entity of a sponsored direct reporting NFFE are more limited than the certification requirements of a sponsoring entity of a sponsored FFI because the obligations of a sponsoring entity of a sponsored direct reporting NFFE are more limited than those of a sponsoring entity of a sponsored FFI. A sponsoring entity of a sponsored direct reporting NFFE must certify that it meets the requirements of a sponsoring entity, that it has a written sponsorship agreement that meets the requirements in these proposed regulations in effect with each sponsored direct reporting NFFE, that there have been no events of default (or that such events have been remediated), and that the sponsoring entity has corrected any failures to report on Form 8966, “FATCA Report,” with respect to any sponsored direct reporting NFFE.

    In general, a sponsoring entity must make the periodic certification with respect to all sponsored direct reporting NFFEs for which it acts during the certification period. However, with respect to a certification period, a sponsoring entity is not required to certify for a sponsored direct reporting NFFE that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored direct reporting NFFE for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which the sponsored direct reporting NFFE was sponsored by the sponsoring entity. However, the preceding sentence does not apply to a sponsored direct reporting NFFE that, immediately before the NFFE agrees to be sponsored by the sponsoring entity, was a direct reporting NFFE or sponsored direct reporting NFFE of another sponsoring entity. The sponsoring entity may certify for a sponsored direct reporting NFFE described in the preceding sentence for the portion of the certification period prior to the date that the NFFE first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the NFFE (or the NFFE's sponsoring entity, if applicable) a written certification that the NFFE has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored direct reporting NFFE for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such NFFE was sponsored by the sponsoring entity. The first certification period will begin on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014.

    Under these proposed regulations, the IRS may make inquiries to a sponsoring entity to determine the sponsoring entity's compliance with its requirements. The IRS may also request any additional information from the sponsoring entity (including a copy of the sponsorship agreement that the sponsoring entity has entered into with each sponsored direct reporting NFFE). If the IRS determines that the sponsoring entity may not have substantially complied with the requirements of a sponsoring entity with respect to any sponsored direct reporting NFFE for which it acts, the IRS may request additional information to verify the sponsoring entity's compliance with such requirements and may request the performance of specified review procedures.

    These proposed regulations also specify the events of default and termination procedures applicable to a sponsoring entity of a sponsored direct reporting NFFE. Consistent with the verification requirements for direct reporting NFFEs in the chapter 4 regulations, a notice of default is triggered by an event of default. An event of default may result in the termination of the sponsoring entity's status as a sponsoring entity, the statuses of one or more sponsored direct reporting NFFEs as such, or both the status of a sponsoring entity and the statuses of one or more sponsored direct reporting NFFEs. A sponsored direct reporting NFFE whose sponsoring entity's status is terminated may register on the FATCA registration Web site as a direct reporting NFFE or sponsored direct reporting NFFE, unless the sponsored direct reporting NFFE's status is also terminated, in which case the sponsored direct reporting NFFE must obtain prior written approval from the IRS in order to register.

    IV. Modifications to the Verification Requirements for Participating FFIs and Compliance FIs

    These proposed regulations provide that the requirements for a participating FFI's certification of compliance (described in § 1.1471-4(f)(3)) may be modified through an amendment to the FFI agreement to include additional certifications or information (such as quantitative or factual information related to the FFI's compliance with the FFI agreement), provided that any additional information or certifications required are published at least 90 days before being added to the FFI agreement to allow for public comment. See also section 12.02 of the FFI agreement (covering modifications to the FFI agreement imposing additional requirements on participating FFIs). Additionally, any such amendment to the FFI agreement will be published only after these proposed regulations are published as final regulations.

    These proposed regulations modify the procedures and timeframes for notices of default and terminations applicable to participating FFIs in the chapter 4 regulations to conform to the procedures and timeframes for sponsoring entities in these proposed regulations. These proposed regulations include a minimum period of 45 days for a participating FFI to respond to a notice of default. Within 30 days of a termination of an FFI's participating FFI status, the FFI must send a notice of termination to each withholding agent from which the FFI receives payments and each financial institution with which it holds an account to which a withholding certificate or other documentation was provided. Requests for reconsideration of a notice of default or a notice of termination must be made within 90 days of the notice of default or notice of termination (as applicable). An FFI that has had its participating FFI status terminated may not reregister on the FATCA registration Web site as a participating FFI or a registered deemed-compliant FFI unless it receives written approval from the IRS.

    The chapter 4 regulations provide that when an FFI elects to be part of a consolidated compliance program (electing FFI), each branch that it maintains (including a limited branch or a branch described in § 1.1471-5(f)(1)) must be subject to periodic review as part of such program. These proposed regulations clarify that a branch of an electing FFI located in a Model 1 IGA jurisdiction is excluded from the periodic review. In addition, these proposed regulations clarify that the responsible officer of the compliance FI must make the periodic certification described in § 1.1471-4(f)(3) (or a qualified certification) on the form and in the manner prescribed by the IRS. In general, the certification must be made on behalf of all electing FFIs in the compliance group during the certification period. However, with respect to a certification period, a compliance FI is not required to make a certification for an electing FFI that first elects to be part of the consolidated compliance program of the compliance FI during the six month period prior to the end of the certification period, provided that the compliance FI makes certifications for such electing FFI for subsequent certification periods, and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. However, the preceding sentence does not apply to an electing FFI that, immediately before the electing FFI elects to be part of the consolidated compliance program, was a participating FFI or registered deemed-compliant FFI. The compliance FI may certify for an electing FFI described in the preceding sentence for the portion of the certification period prior to the date that the electing FFI elects to be part of the consolidated compliance program if the compliance FI obtains from the FFI (or the FFI's former compliance FI, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The compliance FI does not know that such certification is unreliable or incorrect; and (2) the certification for the electing FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. The first certification period for a compliance group begins on the later of the date the compliance FI is issued a GIIN or June 30, 2014, and ends at the close of the third full calendar year following such date. Each subsequent certification period is the three calendar year period following the previous certification period.

    These proposed regulations provide that the responsible officer of a compliance FI must make the certification described in § 1.1471-4(c)(7) (preexisting account certification of a participating FFI) with respect to each electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the certification period (as defined in § 1.1471-4(f)(3)(i)). Notwithstanding the preceding sentence, a preexisting account certification is not required for an electing FFI if, immediately before electing to be part of the consolidated compliance program under the compliance FI, the FFI was a participating FFI or a registered deemed-compliant FFI that is a local FFI or restricted fund, and the FFI (or the FFI's former compliance FI, if applicable) provides a written certification to the compliance FI that the FFI has made the preexisting account certification required of it, unless the compliance FI knows that such certification is unreliable or incorrect. In addition, a preexisting account certification is not required for a certification period for an electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the two year period prior to the end of such certification period, provided that the compliance FI makes the preexisting account certification for such FFI by the due date of the certification of compliance for the subsequent certification period. The preexisting account certification, if required for a certification period, must be submitted by the due date of the FFI's periodic certification of compliance for the certification period, on the form and in the manner prescribed by the IRS.

    V. Certification and Verification Requirements for Registered Deemed-Compliant FFIs

    The chapter 4 regulations do not explicitly provide that the IRS may apply verification procedures and make inquiries regarding the certifications provided by registered deemed-compliant FFIs. These proposed regulations provide that the IRS may make inquiries of, and request additional information from and the performance of specified review procedures by, a registered deemed-compliant FFI to verify the FFI's compliance with the requirements of its applicable deemed-compliant status. These requirements are similar to the provisions for the IRS's verification of a participating FFI's compliance with the FFI agreement. If the IRS determines that a registered deemed-compliant FFI has not complied with the requirements of the deemed-compliant status claimed by the FFI, the IRS may terminate the FFI's deemed-compliant status. A registered deemed-compliant FFI that has had its status terminated may request reconsideration of the termination by submitting a written request to the IRS within 90 days of the notice of termination.

    Proposed Effective/Applicability Dates

    These proposed regulations apply on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    Special Analyses

    Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required.

    The IRS intends that the information collection requirements in these proposed regulations will be satisfied by submitting certifications to the IRS electronically. For purposes of the Paperwork Reduction Act, the reporting burden associated with the collection of information in these proposed regulations will be reflected in the OMB Form 83-1, Paperwork Reduction Act Submission, associated with the certification.

    It is hereby certified that the collection of information requirement in these proposed regulations will not have a significant economic impact on a substantial number of small entities because these proposed regulations affect foreign persons, not domestic entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Requests for Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and IRS request comments on all aspects of the proposed rules, including comments on the clarity of the proposed rules and how they could be made easier with which to comply. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

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

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.1471-1 is amended by revising paragraphs (b)(99), (b)(116), and (b)(121) to read as follows:
    § 1.1471-1 Scope of chapter 4 and definitions.

    (b) * * *

    (99) [The text of proposed § 1.1471-1(b)(99) is the same as the text of § 1.1471-1T(b)(99) published elsewhere in this issue of the Federal Register].

    (116) Responsible officer. The term responsible officer means, with respect to a participating FFI, an officer of any participating FFI or reporting Model 1 FFI in the participating FFI's expanded affiliated group with sufficient authority to fulfill the duties of a responsible officer described in § 1.1471-4, which include the requirement to periodically certify to the IRS regarding the FFI's compliance with its FFI agreement. The term responsible officer means, in the case of a registered deemed-compliant FFI, an officer of any deemed-compliant FFI or participating FFI in the deemed-compliant FFI's expanded affiliated group with sufficient authority to ensure that the FFI meets the applicable requirements of § 1.1471-5(f). The term responsible officer means, with respect to a sponsoring entity, an officer of the sponsoring entity with sufficient authority to fulfill the duties of a responsible officer described in § 1.1471-5(j) or § 1.1472-1(f) (as applicable). If a participating FFI elects to be part of a consolidated compliance program, the term responsible officer means an officer of the compliance FI (as described in § 1.1471-4(f)) with sufficient authority to fulfill the duties of a responsible officer described in § 1.1471-4(f)(2) and (3) on behalf of each FFI in the compliance group.

    (121) Sponsored FFI. The term sponsored FFI means any entity described in § 1.1471-5(f)(1)(i)(F) (describing sponsored investment entities and sponsored controlled foreign corporations) or § 1.1471-5(f)(2)(iii) (describing sponsored, closely held investment vehicles). The term sponsored FFI also means a sponsored investment entity, a sponsored controlled foreign corporation, or a sponsored, closely held investment vehicle treated as deemed-compliant under an applicable Model 2 IGA.

    Par. 3. Section 1.1471-3 is amended by: 1. Revising paragraph (c)(1). 2. Adding paragraphs (c)(3)(iii)(B)(5) and (c)(6)(ii)(E)(4). 3. Revising paragraphs (c)(7)(ii) and (d)(6)(i)(F).

    The revisions and additions read as follows:

    § 1.1471-3 Identification of payee.

    (c) * * *

    (1) [The text of proposed § 1.1471-3(c)(1) is the same as the text of § 1.1471-3T(c)(1) published elsewhere in this issue of the Federal Register].

    (3) * * *

    (iii) * * *

    (B) * * *

    (5) [The text of proposed § 1.1471-3(c)(3)(iii)(B)(5) is the same as the text of § 1.1471-3T(c)(3)(iii)(B)(5) published elsewhere in this issue of the Federal Register].

    (6) * * *

    (ii) * * *

    (E) * * *

    (4) [The text of proposed § 1.1471-3(c)(6)(ii)(E)(4) is the same as the text of § 1.1471-3T(c)(6)(ii)(E)(4) published elsewhere in this issue of the Federal Register].

    (7) * * *

    (ii) [The text of proposed § 1.1471-3(c)(7)(ii) is the same as the text of § 1.1471-3T(c)(7)(ii) published elsewhere in this issue of the Federal Register].

    (d) * * *

    (6) * * *

    (i) * * *

    (F) [The text of proposed § 1.1471-3(d)(6)(i)(F) is the same as the text of § 1.1471-3T(d)(6)(i)(F) published elsewhere in this issue of the Federal Register].

    Par. 4. Section 1.1471-4 is amended by: 1. Revising paragraphs (c)(2)(ii)(B)(2)(iii), (d)(4)(iv)(C) and (D), (f)(2)(ii)(A), (f)(3)(i), and (g)(2). 2. Adding paragraphs (d)(2)(ii)(G) and (f)(2)(ii)(B)(1) and (2).

    The revisions and additions read as follows:

    § 1.1471-4 FFI agreement.

    (c) * * *

    (2) * * *

    (ii) * * *

    (B) * * *

    (2) * * *

    (iii) [The text of proposed § 1.1471-4(c)(2)(ii)(B)(2)(iii) is the same as the text of § 1.1471-4T(c)(2)(ii)(B)(2)(iii) published elsewhere in this issue of the Federal Register].

    (d) * * *

    (2) * * *

    (ii) * * *

    (G) [The text of proposed § 1.1471-4(d)(2)(ii)(G) is the same as the text of § 1.1471-4T(d)(2)(ii)(G) published elsewhere in this issue of the Federal Register].

    (4) * * *

    (iv) * * *

    (C) [The text of proposed § 1.1471-4(d)(4)(iv)(C) is the same as the text of § 1.1471-4T(d)(4)(iv)(C) published elsewhere in this issue of the Federal Register].

    (D) [The text of proposed § 1.1471-4(d)(4)(iv)(D) is the same as the text of § 1.1471-4T(d)(4)(iv)(D) published elsewhere in this issue of the Federal Register].

    (f) * * *

    (2) * * *

    (ii) * * *

    (A) In general. A participating FFI that is a member of an expanded affiliated group that includes one or more FFIs may elect to be part of a consolidated compliance program (and perform a consolidated periodic review) under the authority of a participating FFI, reporting Model 1 FFI, or U.S. financial institution (compliance FI) that is a member of the electing FFI's expanded affiliated group, regardless of whether all such members so elect. In addition, when an FFI elects to be part of a consolidated compliance program, each branch that it maintains (including a limited branch or a branch described in § 1.1471-5(f)(1)), other than a branch located in a Model 1 IGA jurisdiction, must be subject to periodic review as part of such program and included on the periodic certification (described in paragraph (f)(2)(ii)(B)(1) of this section). See § 1.1471-5(j) for the requirement of a sponsoring entity to establish and implement a compliance program for its sponsored FFIs.

    (B) * * *

    (1) Periodic certification. On or before July 1 of the calendar year following the end of the certification period, the responsible officer of the compliance FI must make the certification described in either paragraph (f)(3)(ii) or (f)(3)(iii) of this section with respect to all electing FFIs for which it acts during the certification period on the form and in the manner prescribed by the IRS. The certification must be made on behalf of all electing FFIs in the compliance group during the certification period. In general, with respect to a certification period, a compliance FI is not required to make a certification for an electing FFI that first elects to be part of the consolidated compliance program of the compliance FI during the six month period prior to the end of the certification period, provided that the compliance FI makes certifications for such electing FFI for subsequent certification periods, and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. However, the preceding sentence does not apply to an electing FFI that, immediately before the electing FFI elects to be part of the consolidated compliance program, was a participating FFI or registered deemed-compliant FFI. The compliance FI may certify for an electing FFI described in the preceding sentence for the portion of the certification period prior to the date that the electing FFI elects to be part of the consolidated compliance program if the compliance FI obtains from the FFI (or the FFI's former compliance FI, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The compliance FI does not know that such certification is unreliable or incorrect; and (2) the certification for the electing FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. The first certification period for a compliance group begins on the later of the date the compliance FI is issued a GIIN or June 30, 2014, and ends at the close of the third full calendar year following such date. Each subsequent certification period is the three calendar year period following the previous certification period.

    (2) Preexisting account certification. The responsible officer of a compliance FI must make the certification described in paragraph (c)(7) of this section (preexisting account certification of a participating FFI) with respect to each electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the certification period. However, a preexisting account certification is not required for an electing FFI if immediately before electing to be part of the consolidated compliance program under the compliance FI the FFI was a participating FFI or a registered deemed-compliant FFI that is a local FFI or restricted fund, and the FFI (or the FFI's former compliance FI, if applicable) provides a written certification to the compliance FI that the FFI has made the preexisting account certification required under paragraph (c)(7) of this section, § 1.1471-5(f)(1)(i)(A)(7), or § 1.1471-5(f)(1)(i)(D)(6) (as applicable), unless the compliance FI knows that such written certification is unreliable or incorrect. In addition, a preexisting account certification is not required for an electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the two year period prior to the end of the certification period, provided that the compliance FI makes the preexisting account certification for such FFI for the subsequent certification period. The certification required under this paragraph (f)(2)(ii)(B)(2) for the certification period must be submitted by the due date of the FFI's certification of compliance required under paragraph (f)(2)(ii)(B)(1) of this section for the certification period, on the form and in the manner prescribed by the IRS.

    (3) * * *

    (i) In general. In addition to the certifications required under paragraph (c)(7) of this section, on or before July 1 of the calendar year following the end of each certification period, the responsible officer must make the certification described in either paragraph (f)(3)(ii) or (iii) of this section on the form and in the manner prescribed by the IRS. The first certification period begins on the effective date of the FFI agreement and ends at the close of the third full calendar year following the effective date of the FFI agreement. Each subsequent certification period is the three calendar year period following the previous certification period, unless the FFI agreement provides for a different period. The responsible officer must either certify that the participating FFI maintains effective internal controls or, if the participating FFI has identified an event of default (defined in paragraph (g) of this section) or a material failure (defined in paragraph (f)(3)(iv) of this section) that it has not corrected as of the date of the certification, must make the qualified certification described in paragraph (f)(3)(iii) of this section. The certification of compliance described in paragraph (f)(3)(ii) or (iii) of this section may be modified through an amendment to the FFI agreement to include any additional certifications or information (such as quantitative or factual information related to the FFI's compliance with the FFI agreement), provided that any additional information or certifications are published at least 90 days before being incorporated into the FFI agreement to allow for public comment.

    (g) * * *

    (2) Notice of event of default. Following an event of default known by or disclosed to the IRS, the IRS will deliver to the participating FFI a notice of default specifying the event of default. The IRS will request that the participating FFI remediate the event of default within 45 days (unless additional time is requested and agreed to by the IRS). The participating FFI must respond to the notice of default and provide information responsive to an IRS request for information or state the reasons why the participating FFI does not agree that an event of default has occurred. Taking into account the terms of any applicable Model 2 IGA, if the participating FFI does not provide a response within the specified time period, the IRS may, at its sole discretion, deliver a notice of termination that terminates the FFI's participating FFI status. If the FFI's participating FFI status is terminated, in addition to the requirements in § 1.1471-3(c)(6)(ii)(E)(2), the FFI must, within 30 days of the termination, send notice of the termination to each withholding agent from which it receives payments and each financial institution with which it holds an account for which a withholding certificate or other documentation was provided. An FFI that has had its participating FFI status terminated may not reregister on the FATCA registration Web site as a participating FFI or registered deemed-compliant FFI unless it receives written approval from the IRS to register. A participating FFI may request, within 90 days of a notice of default or notice of termination, reconsideration of a notice of default or notice of termination by written request to the IRS.

    Par. 5. Section 1.1471-5 is amended by: 1. Revising paragraph (f)(1)(i)(F)(3)(vi). 2. Removing paragraph (f)(1)(i)(F)(3)(vii). 3. Redesignating paragraph (f)(1)(i)(F)(3)(viii) as new paragraph (f)(1)(i)(F)(3)(vii), 4. Revising paragraph (f)(1)(i)(F)(4). 5. Adding paragraph (f)(1)(iv). 6. Revising paragraph (f)(2)(iii)(D)(4). 7. Removing paragraph (f)(2)(iii)(D)(5). 8. Redesignating paragraph (f)(2)(iii)(D)(6) as new paragraph (f)(2)(iii)(D)(5). 9. Revising paragraph (f)(2)(iii)(E), 10. Revising paragraphs (j) and (k). 11. Redesignating paragraph (l) as paragraph (m). 12. Adding new paragraph (l).

    The revisions and additions read as follows:

    § 1.1471-5 Definitions applicable to section 1471.

    (f) * * *

    (1) * * *

    (i) * * *

    (F) * * *

    (3) * * *

    (vi) Complies with the verification procedures described in paragraph (j) of this section;

    (4) The IRS may revoke a sponsoring entity's status with respect to one or more sponsored FFIs if there is an event of default as defined in paragraph (k)(1) of this section and following the termination procedures described in paragraphs (k)(2), (k)(3), and (k)(4) of this section.

    (iv) IRS review of compliance by registered deemed-compliant FFIs—(A) General inquiries. With respect to a registered deemed-compliant FFI described in paragraph (f)(1)(i)(A), (C), or (D) of this section, the IRS, based upon the information reporting forms described in § 1.1471-4(d)(3)(v), (d)(5)(vii), or (d)(6)(iv) filed with the IRS for each calendar year (if applicable), may request additional information with respect to the information reported (or required to be reported) on the forms, the account statements described in § 1.1471-4(d)(4)(v), or to confirm that the FFI has no reporting requirements for the calendar year. The IRS may request additional information from the FFI to determine the FFI's compliance with § 1.1471-4 (if applicable) and to assist the IRS with its review of account holder compliance with tax reporting requirements. For IRS review of compliance with respect to a registered deemed-compliant FFI described in paragraph (f)(1)(i)(F) of this section (describing sponsored investment entities and controlled foreign corporations), see paragraph (j)(4) of this section.

    (B) Inquiries regarding substantial non-compliance. With respect to a registered deemed-compliant FFI described in paragraph (f)(1)(i)(A) through (E) of this section, the IRS, based on the information reporting forms described in § 1.1471-4(d)(3)(v), (d)(5)(vii), or (d)(6)(iv) filed with the IRS for each calendar year (if applicable), the certifications made by the responsible officer described in paragraph (f)(1)(ii)(B) of this section (or the absence of such certifications), or any other information related to the FFI's compliance with the requirements of the deemed-compliant status claimed by the FFI, may determine in its discretion that the FFI may not have substantially complied with the requirements of the deemed-compliant status claimed by the FFI. In such a case, the IRS may request from the responsible officer (or designee) information necessary to verify the FFI's compliance with the requirements for the deemed-compliant status claimed by the FFI. For example, in the case of a local FFI under paragraph (f)(1)(i)(A) of this section, the IRS may request a description or copy of the FFI's policies and procedures for identifying accounts held by specified U.S. persons not resident in the jurisdiction in which the FFI is incorporated or organized, identifying entities controlled or beneficially owned by such persons, and identifying nonparticipating FFIs. The IRS may also request the performance of specified review procedures by a person (including an external auditor or third-party consultant) that the IRS identifies as competent to perform such procedures given the facts and circumstances surrounding the FFI's potential failure to comply with the requirements of the deemed-compliant category claimed by the FFI. If the IRS determines that the FFI has not complied with the requirements of the deemed-compliant status claimed by the FFI, the IRS may terminate the FFI's deemed-compliant status. If the FFI's deemed-compliant status is terminated, the FFI must send notice of the termination to each withholding agent from which it receives payments and each financial institution with which it holds an account for which a withholding certificate or other documentation was provided within 30 days after the termination. An FFI that has had its deemed-compliant status terminated may not reregister on the FATCA registration Web site as a registered deemed-compliant FFI or register on the FATCA registration Web site as a participating FFI unless it receives written approval from the IRS. A registered deemed-compliant FFI may request, within 90 days of a notice of termination, reconsideration of the notice of termination by written request to the IRS.

    (2) * * *

    (iii) * * *

    (D) * * *

    (4) Complies with the verification procedures described in paragraph (j) of this section; and

    (E) The IRS may revoke a sponsoring entity's status as a sponsoring entity with respect to one or more sponsored FFIs if there is an event of default as defined in paragraph (k)(1) of this section and following the termination procedures described in paragraphs (k)(2), (k)(3), and (k)(4) of this section. A sponsoring entity is not liable for any failure to comply with the obligations contained in paragraph (f)(2)(iii)(D) of this section unless the sponsoring entity is a withholding agent that is separately liable for the failure to withhold on or report with respect to a payment made by the sponsoring entity on behalf of the sponsored FFI. A sponsored FFI will remain liable for any failure of its sponsoring entity to comply with the obligations contained in paragraph (f)(2)(iii)(D) of this section that the sponsoring entity has agreed to undertake on behalf of the FFI, even if the sponsoring entity is also a withholding agent and is itself separately liable for the failure to withhold on or report with respect to a payment made by the sponsoring entity on behalf of the sponsored FFI. The same tax, interest, or penalties, however, shall not be collected more than once.

    (j) Sponsoring entity verification—(1) In general. This paragraph (j) describes the requirements for a sponsoring entity of a sponsored FFI to establish and implement a compliance program for satisfying its requirements as a sponsoring entity and to provide a certification of compliance with its requirements. This paragraph (j) also describes the procedures for the IRS to review the sponsoring entity's compliance with respect to each sponsored FFI for purposes of satisfying the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA. This paragraph (j) also requires a sponsoring entity to have in place a written sponsorship agreement as described in paragraph (j)(3)(v)(B) of this section with each sponsored FFI. References in this paragraph (j) or paragraph (k) of this section to a sponsored FFI mean a sponsored FFI to which the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA apply.

    (2) Compliance program. The sponsoring entity must appoint a responsible officer to oversee the compliance of the sponsoring entity with respect to each sponsored FFI for purposes of satisfying the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA. The responsible officer must (either personally or through designated persons) establish a compliance program that includes policies, procedures, and processes sufficient for the sponsoring entity to satisfy the requirements described in the preceding sentence. The responsible officer (or designee) must periodically review the sufficiency of the sponsoring entity's compliance program, the sponsoring entity's compliance with respect to each sponsored FFI for purposes of satisfying the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA, and the compliance of each sponsored FFI with the due diligence, withholding, and reporting requirements of § 1.1471-4 or an applicable Model 2 IGA during the certification period described in paragraph (j)(3)(iii) of this section. The results of the periodic review must be considered by the responsible officer in making the periodic certifications described in paragraph (j)(3) of this section.

    (3) Certification of compliance—(i) In general. In addition to the certification required under paragraph (j)(5) of this section (preexisting account certification), on or before July 1 of the calendar year following the certification period, the responsible officer of the sponsoring entity must make the certification described in paragraph (j)(3)(v) of this section and either the certification described in paragraph (j)(3)(vi)(A) of this section or the certification described in paragraph (j)(3)(vi)(B) of this section with respect to all sponsored FFIs for which the sponsoring entity acts during the certification period on the form and in the manner prescribed by the IRS.

    (ii) Late-joining sponsored FFIs. In general, with respect to a certification period, a sponsoring entity is not required to make a certification for a sponsored FFI that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored FFI for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity. However, the preceding sentence does not apply to a sponsored FFI that, immediately before the FFI agrees to be sponsored by the sponsoring entity, was a participating FFI, registered deemed-compliant FFI, or sponsored, closely held investment vehicle of another sponsoring entity. The sponsoring entity may certify for a sponsored FFI described in the preceding sentence for the portion of the certification period prior to the date that the FFI first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the FFI (or the FFI's sponsoring entity, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity.

    (iii) Certification period. The first certification period begins on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014, and ends at the close of the third full calendar year following such date. Each subsequent certification period is the three calendar year period following the previous certification period.

    (iv) Additional certifications or information. The certification of compliance described in paragraph (j)(3) of this section may be modified to include additional certifications or information (such as quantitative or factual information related to the sponsoring entity's compliance with respect to each sponsored FFI for purposes of satisfying the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA), provided that such additional information or certifications are published at least 90 days before being made effective in order to allow for public comment.

    (v) Certifications regarding sponsoring entity and sponsored FFI requirements. The responsible officer of the sponsoring entity must certify to the following statements—

    (A) The sponsoring entity meets all of the requirements of a sponsoring entity as described in paragraph (f)(1)(i)(F)(3) or (f)(2)(iii)(D) of this section or an applicable Model 2 IGA, including the chapter 4 status required of such entity;

    (B) The sponsoring entity has a written sponsorship agreement in effect with each sponsored FFI authorizing the sponsoring entity to fulfill the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA with respect to each sponsored FFI; and

    (C) Each sponsored FFI treated as a sponsored investment entity, a sponsored controlled foreign corporation, or a sponsored, closely held investment vehicle by the sponsoring entity meets the requirements of its respective status.

    (vi) Certifications regarding internal controls—(A) Certification of effective internal controls. The responsible officer of the sponsoring entity must certify to the following statements—

    (1) The responsible officer of the sponsoring entity has established a compliance program that is in effect as of the date of the certification and that has been subject to the review as described in paragraph (j)(2) of this section;

    (2) With respect to material failures (defined in paragraph (j)(3)(vii) of this section)—

    (i) There are no material failures for the certification period; or

    (ii) If there were any material failures, appropriate actions were taken to remediate such failures and to prevent such failures from reoccurring; and

    (3) With respect to any failure to withhold, deposit, or report to the extent required under § 1.1471-4 or an applicable Model 2 IGA with respect to any sponsored FFI for any year during the certification period, the sponsored FFI has corrected such failure by paying (or directing the sponsoring entity to pay) any taxes due (including interest and penalties) and filing (or directing the sponsoring entity to file) the appropriate return (or amended return).

    (B) Qualified certification. If the responsible officer of the sponsoring entity has identified an event of default (defined in paragraph (k)(1) of this section) or a material failure (defined in paragraph (j)(3)(vii) of this section) that the sponsoring entity has not corrected as of the date of the certification, the responsible officer must certify to the following statements—

    (1) The responsible officer of the sponsoring entity has established a compliance program that is in effect as of the date of the certification and that has been subjected to the review as described in paragraph (j)(2) of this section;

    (2) With respect to the event of default or material failure—

    (i) The responsible officer (or designee) has identified an event of default; or

    (ii) The responsible officer has determined that there are one or more material failures as defined in paragraph (j)(3)(vii) of this section and that appropriate actions will be taken to prevent such failures from reoccurring;

    (3) With respect to any failure to withhold, deposit, or report to the extent required under § 1.1471-4 or an applicable Model 2 IGA with respect to any sponsored FFI for any year during the certification period, the sponsored FFI will correct such failure by paying (or directing the sponsoring entity to pay) any taxes due (including interest and penalties) and filing (or directing the sponsoring entity to file) the appropriate return (or amended return); and

    (4) The responsible officer (or designee) will respond to any notice of default under paragraph (k)(2) of this section or will provide to the IRS a description of each material failure and a written plan to correct each such failure when requested under paragraph (j)(4) of this section.

    (vii) Material failures defined. A material failure is a failure of the sponsoring entity with respect to each sponsored FFI to satisfy the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA if the failure was the result of a deliberate action on the part of one or more employees of the sponsoring entity or was an error attributable to a failure of the sponsoring entity to implement internal controls sufficient for the sponsoring entity to meet its requirements. A material failure will not constitute an event of default unless such material failure occurs in more than limited circumstances when a sponsoring entity has not substantially complied with the requirements described in the preceding sentence. Material failures include the following—

    (A) With respect to any sponsored FFI, the deliberate or systematic failure of the sponsoring entity to report accounts that such sponsored FFI was required to treat as U.S. accounts, withhold on passthru payments to the extent required, deposit taxes withheld to the extent required, accurately report recalcitrant account holders (or non-consenting U.S. accounts under an applicable Model 2 IGA), or accurately report with respect to nonparticipating FFIs as required under § 1.1471-4(d)(2)(ii)(F) or an applicable Model 2 IGA;

    (B) A criminal or civil penalty or sanction imposed on the sponsoring entity or any sponsored FFI (or any branch or office of the sponsoring entity or any sponsored FFI) by a regulator or other governmental authority or agency with oversight over the sponsoring entity's or sponsored FFI's compliance with the AML due diligence procedures to which it (or any branch or office thereof) is subject and that is imposed based on a failure to properly identify account holders under the requirements of those procedures;

    (C) A potential future tax liability of any sponsored FFI related to its compliance (or lack thereof) with the due diligence, withholding, and reporting requirements of § 1.1471-4 or an applicable Model 2 IGA for which such sponsored FFI has established, for financial statement purposes, a tax reserve or provision;

    (D) A potential contractual liability under the agreement described in paragraph (j)(3)(v)(B) of this section of the sponsoring entity to any sponsored FFI related to such sponsoring entity's compliance (or lack thereof) with paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA for which the sponsoring entity has established, for financial statement purposes, a reserve or provision; and

    (E) Failure to register with the IRS as a sponsoring entity or to register each sponsored FFI required to be registered under paragraph (f)(1)(i)(F)(3)(iii) of this section or an applicable Model 2 IGA.

    (4) IRS review of compliance—(i) General inquiries. The IRS, based upon the information reporting forms described in § 1.1471-4(d)(3)(v), (d)(5)(vii), or (d)(6)(iv) filed with the IRS (or the absence of such reporting) by the sponsoring entity for each calendar year with respect to any sponsoring FFI, may request additional information with respect to the information reported (or required to be reported) on the forms, the account statements described in § 1.1471-4(d)(4)(v) with respect to one or more sponsored FFIs, or confirmation that the FFI has no reporting requirements. The IRS may also request any additional information from the sponsoring entity (including a copy of each sponsorship agreement the sponsoring entity has entered into with each sponsored FFI) necessary to determine the compliance with the due diligence, withholding, and reporting requirements of § 1.1471-4 or an applicable Model 2 IGA with respect to each sponsored FFI and to assist the IRS with its review of account holder compliance with tax reporting requirements.

    (ii) Inquiries regarding substantial non-compliance. Based on the information reporting forms described in § 1.1471-4(d)(3)(v), (d)(5)(vii), or (d)(6)(iv) filed with the IRS by the sponsoring entity for each calendar year with respect to any sponsored FFI (or the absence of reporting), the certifications made by the responsible officer described in paragraphs (j)(3) and (j)(5) of this section (or the absence of such certifications), or any other information related to the sponsoring entity's compliance with respect to any sponsored FFI for purposes of satisfying the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA, the IRS may determine in its discretion that the sponsoring entity may not have substantially complied with such requirements. In such a case, the IRS may request from the responsible officer (or designee) information necessary to verify the sponsoring entity's compliance with such requirements. The IRS may request, for example, a description or copy of the sponsoring entity's policies and procedures for fulfilling the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA, a description or copy of the sponsoring entity's procedures for conducting its periodic review, or a copy of any written reports documenting the findings of such review. The IRS may also request the performance of specified review procedures by a person (including an external auditor or third-party consultant) that the IRS identifies as competent to perform such procedures given the facts and circumstances surrounding the sponsoring entity's potential failure to comply with respect to each sponsored FFI with the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA.

    (iii) Compliance procedures for a sponsored FFI subject to a Model 2 IGA. In the case of a sponsored FFI subject to the requirements of an applicable Model 2 IGA, the procedures described in paragraph (j)(4) of this section apply, except as otherwise provided in the applicable Model 2 IGA.

    (5) Preexisting account certification. The responsible officer of a sponsoring entity must make the certification described in § 1.1471-4(c)(7) (preexisting account certification of a participating FFI) with respect to each sponsored FFI that enters into the sponsorship agreement with the sponsoring entity during the certification period (as defined in paragraph (j)(3)(iii) of this section). However, the preexisting account certification is not required for a sponsored FFI that, immediately before the FFI first agrees to be sponsored by the sponsoring entity, was a participating FFI, a sponsored FFI of another sponsoring entity, or a registered deemed-compliant FFI that is a local FFI or a restricted fund, if the FFI (or the FFI's former sponsoring entity, if applicable) provides a written certification to the sponsoring entity that the FFI has made the preexisting account certification required under § 1.1471-4(c)(7) or paragraph (f)(1)(i)(A)(7) or (f)(1)(i)(D)(6) of this section (as applicable), unless the sponsoring entity knows that such written certification is unreliable or incorrect. In addition, the preexisting account certification is not required for a sponsored FFI that enters into the sponsorship agreement with the sponsoring entity during the two year period prior to the end of the certification period, provided that the sponsoring entity makes the preexisting account certification for such FFI for the subsequent certification period. The certification described in this paragraph (j)(5) for the certification period must be submitted by the due date of the sponsoring entity's certification of compliance required under paragraph (j)(3) of this section for the certification period, on the form and in the manner prescribed by the IRS. With respect to a sponsored FFI for which the sponsoring entity makes a preexisting account certification, a preexisting obligation means any account, instrument, or contract (including any debt or equity interest) maintained, executed, or issued by the sponsored FFI that is outstanding on the earlier of the date the FFI is issued a GIIN as a sponsored FFI or the date the FFI first agrees to be sponsored by the sponsoring entity.

    (k) Sponsoring entity event of default—(1) Defined. An event of default with regard to a sponsoring entity occurs if the sponsoring entity fails to perform material obligations required with respect to the due diligence, withholding, and reporting requirements of § 1.1471-4 or an applicable Model 2 IGA with respect to any sponsored FFI, to establish or maintain a compliance program as described in paragraph (j)(2) of this section, or to perform a periodic review described in paragraph (j)(2) of this section. An event of default also includes the occurrence of any of the following—

    (i) With respect to any sponsored FFI, failure to obtain, in any case in which foreign law would (but for a waiver) prevent the reporting of U.S. accounts required under § 1.1471-4(d), valid and effective waivers from holders of U.S. accounts or failure to otherwise close or transfer such U.S. accounts as required under § 1.1471-4(i);

    (ii) With respect to any sponsored FFI, failure to significantly reduce, over a period of time, the number of account holders or payees that such sponsored FFI is required to treat as recalcitrant account holders or nonparticipating FFIs, as a result of the sponsoring entity failing to comply with the due diligence procedures set forth in § 1.1471-4(c);

    (iii) With respect to any sponsored FFI, failure to fulfill the requirements of § 1.1471-4(i) in any case in which foreign law prevents or otherwise limits withholding under § 1.1471-4(b);

    (iv) Failure to take timely corrective actions to remedy a material failure described in paragraph (j)(3)(vii) of this section after making a qualified certification described in paragraph (j)(3)(vi)(B) of this section;

    (v) Failure to make the preexisting account certification required under paragraph (j)(5) of this section or the periodic certification required under paragraph (j)(3) of this section with respect to any sponsored FFI within the specified time period;

    (vi) Making incorrect claims for refund on behalf of any sponsored FFI;

    (vii) Failure to cooperate with an IRS request for additional information under paragraph (j)(4) of this section;

    (viii) Making any fraudulent statement or misrepresentation of material fact to the IRS or representing to a withholding agent or the IRS its status as a sponsoring entity for an entity other than an entity for which it acts as a sponsoring entity;

    (ix) The sponsoring entity is no longer authorized to perform the requirements of a sponsoring entity with respect to one or more sponsored FFIs; or

    (x) Failure to have the written sponsorship agreement described in paragraph (j)(3)(v)(B) of this section in effect with each sponsored FFI.

    (2) Notice of event of default. Following an event of default known by or disclosed by the sponsoring entity to the IRS, the IRS will deliver to the sponsoring entity a notice of default specifying the event of default and, if applicable, identifying each sponsored FFI to which the notice relates. The IRS will request that the sponsoring entity remediate the event of default within 45 days (unless additional time is requested and agreed to by the IRS). The sponsoring entity must respond to the notice of default and provide information responsive to an IRS request for information or state the reasons why the sponsoring entity does not agree that an event of default has occurred.

    (3) Remediation of event of default. A sponsoring entity will be permitted to remediate an event of default to the extent that it agrees with the IRS on a remediation plan. Such a plan may, for example, allow a sponsoring entity to remediate an event of default described in paragraph (k)(1) of this section with respect to a sponsored FFI by providing specific information regarding the U.S. accounts maintained by such sponsored FFI when the sponsoring entity has been unable to report all of the information with respect to such accounts as required under § 1.1471-4(d) and has been unable to close or transfer such accounts. The IRS may, as part of a remediation plan, require additional information from the sponsoring entity or the performance of the specified review procedures described in paragraph (j)(4)(ii) of this section.

    (4) Termination—(i) In general. If the sponsoring entity does not provide a response to a notice of default within the period specified in paragraph (k)(2) of this section or does not remediate the event of default as described in paragraph (k)(3) of this section, the IRS may deliver a notice of termination that terminates the sponsoring entity's status, the status of one or more sponsored FFIs as deemed-compliant FFIs, or both the sponsoring entity and one or more sponsored FFIs.

    (ii) Termination of sponsoring entity. If the IRS terminates the status of the sponsoring entity, the sponsoring entity must send notice of the termination to each sponsored FFI for which it acts, as well as each withholding agent from which it receives payments and each financial institution with which it holds an account for which a withholding certificate or other documentation was provided with respect to each sponsored FFI within 30 days after the date of termination. A sponsoring entity that has had its status terminated cannot register on the FATCA registration Web site to act as a sponsoring entity for any sponsored FFI or for any entity that is a sponsored entity under a Model 1 IGA unless it receives written approval from the IRS to register. Unless the status of a sponsored FFI has been terminated, the sponsored FFI may register on the FATCA registration Web site as a participating FFI or registered deemed-compliant FFI (as applicable). However, a sponsored FFI whose sponsoring entity has been terminated may not register or represent its status as a sponsored FFI of a sponsoring entity that has a relationship described in section 267(b) to the sponsoring entity that was terminated without receiving written approval from the IRS.

    (iii) Termination of sponsored FFI. If the IRS notifies the sponsoring entity that the status of a sponsored FFI is terminated (but not the sponsoring entity's status), the sponsoring entity must remove the sponsored FFI from the sponsoring entity's registration account on the FATCA registration Web site and send notice of the termination to each withholding agent from which the sponsored FFI receives payments and each financial institution with which it holds an account for which a withholding certificate or other documentation was provided with respect to such sponsored FFI within 30 days after the date of termination. A sponsored FFI that has had its status as a sponsored FFI terminated (independent from a termination of status of its sponsoring entity) may not register on the FATCA registration Web site as a participating FFI or registered deemed-compliant FFI unless it receives written approval from the IRS.

    (iv) Reconsideration of notice of default or notice of termination. A sponsoring entity or sponsored FFI may request, within 90 days of a notice of default or notice of termination, reconsideration of the notice of default or notice of termination by written request to the IRS.

    (v) Sponsoring entity of sponsored FFIs subject to a Model 2 IGA. Subject to the provisions of an applicable Model 2 IGA, the IRS may revoke the status of a sponsoring entity with respect to one or more sponsored FFIs subject to a Model 2 IGA if there is an event of default as defined in paragraph (k)(1) of this section and following the notice, remediation, and termination procedures described in paragraphs (k)(2), (k)(3), and (k)(4) of this section.

    (l) Trustee-documented trust verification—(1) Compliance program. A trustee of a trust treated as a trustee-documented trust under an applicable Model 2 IGA must establish and implement a compliance program for purposes of satisfying the requirements of an applicable Model 2 IGA with respect to each such trust. The trustee must appoint a responsible officer who must (either personally or through designated persons) establish policies, procedures, and processes sufficient for the trustee to implement the compliance program. The responsible officer (or designee) must periodically review the sufficiency of the trustee's compliance program and the trustee's compliance with respect to each trust for purposes of satisfying the requirements of an applicable Model 2 IGA for each certification period described in paragraph (l)(2) of this section. The results of the periodic review must be considered by the responsible officer in making the certification described in paragraph (l)(2) of this section.

    (2) Certification of compliance—(i) In general. On or before July 1 of the calendar year following the end of the certification period, the responsible officer must make a certification for the certification period with respect to all trustee-documented trusts described in paragraph (l)(1) of this section on the form and in the manner prescribed by the IRS.

    (ii) Late-joining trustee-documented trusts. In general, with respect to a certification period, the responsible officer of a trustee is not required to make a certification for a trustee-documented trust for which the trustee first agreed to act as the trustee for purposes of the trust's status as a trustee-documented trust during the six month period prior to the end of the certification period, provided that the responsible officer of the trustee makes certifications for such trustee-documented trust for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which the trustee acted as the trustee of the trustee-documented trust. However, the preceding sentence does not apply to a trustee-documented trust that, immediately before the trustee first agrees to act as the trustee for purposes of the trust's status as a trustee-documented trust, was a trustee-documented trust of another trustee. The trustee of a trustee-documented trust may certify for a trustee-documented trust described in the preceding sentence for the portion of the certification period prior to the date that the trustee first agrees to act as the trustee for purposes of the trust's status as a trustee-documented trust if the trustee obtains from the trustee-documented trust (or the trust's former trustee, if applicable) a written certification that the trust has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The trustee does not know that such certification is unreliable or incorrect; and (2) the certification for the trustee-documented trust for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which the trustee acts as the trustee for purposes of the trust's status as a trustee-documented trust.

    (iii) Certification period. The first certification period begins on the later of the date the trustee is issued a GIIN to act as a trustee of a trustee-documented trust or June 30, 2014, and ends at the close of the third full calendar year following such date. Each subsequent certification period is the three calendar year period following the previous certification period.

    (iv) Certifications. The responsible officer of the trustee must certify to the following statements—

    (A) The responsible officer of the trustee has established a compliance program that is in effect as of the date of the certification and has performed a periodic review described in paragraph (l)(1) of this section for the certification period; and

    (B) The trustee has reported to the IRS on Form 8966, “FATCA Report” (or such other form as the IRS may prescribe), all of the information required to be reported pursuant to the applicable Model 2 IGA with respect to all U.S. accounts of each trustee-documented trust for which the trustee acts during the certification period by the due date of Form 8966 (including extensions) for each year.

    (3) IRS review of compliance by trustees of trustee-documented trusts—(i) General inquiries. Based upon the information reporting forms filed with the IRS (or the absence of such reporting) by a trustee with respect to any trustee-documented trust subject to a Model 2 IGA for each calendar year, and subject to the requirements of an applicable Model 2 IGA, the IRS may request from the trustee additional information with respect to the information reported on the forms with respect to any trustee-documented trust or a confirmation that the trustee has no reporting requirements with respect to any trustee-documented trust. The IRS may also request any additional information to determine the trustee's compliance for purposes of satisfying the trust's requirements as a trustee-documented trust under an applicable Model 2 IGA or to assist the IRS with its review of account holder compliance with tax reporting requirements.

    (ii) Inquiries regarding substantial non-compliance. The IRS, based on the information reporting forms filed with the IRS by a trustee with respect to any trustee-documented trust subject to a Model 2 IGA for each calendar year (or the absence of such reporting), the certification described in paragraph (l)(2) of this section (or the absence of such certification), or any other information related to the trustee's compliance with respect to any trustee-documented trust for purposes of satisfying the trust's applicable Model 2 IGA requirements, may determine in its discretion that the trustee may not have substantially complied with the requirements applicable to a trustee of a trustee-documented trust. In such a case, the IRS may request from the responsible officer information necessary to verify the trustee's compliance with such requirements. The IRS may also request the performance of specified review procedures by a person (including an external auditor or third-party consultant) that the IRS identifies as competent to perform such procedures given the circumstances surrounding the trustee's potential failure to comply with the requirements of an applicable Model 2 IGA with respect to one or more trustee-documented trusts. The IRS may notify the applicable Model 2 IGA jurisdiction that the trustee has not complied with its requirements as a trustee of one or more trustee-documented trusts

    Par. 6. Section 1.1472-1 is amended by revising paragraphs (c)(5)(iii), (f), and (g) to read as follows:
    § 1.1472-1 Withholding on NFFEs.

    (c) * * *

    (5) * * *

    (iii) Revocation of status as sponsoring entity. The IRS may revoke a sponsoring entity's status as a sponsoring entity with respect to all sponsored direct reporting NFFEs if there is an event of default as defined in paragraph (g) of this section with respect to any sponsored direct reporting NFFE.

    (f) Sponsoring entity verification—(1) In general. This paragraph (f) describes the requirements for a sponsoring entity to provide a certification of compliance with respect to each sponsored direct reporting NFFE for purposes of satisfying the requirements of paragraph (c)(5) of this section and defines the certification period for such certifications. This paragraph (f) also describes the procedures for the IRS to review the sponsoring entity's compliance with such requirements during the certification period. Finally, this paragraph (f) describes the requirement that a sponsoring entity have in place a written sponsorship agreement with each sponsored direct reporting NFFE for which it acts and specifies the terms of such agreement. See paragraph (g)(1)(i) of this section, describing an event of default for a sponsoring entity that does not have a sponsorship agreement with each sponsored direct reporting NFFE for which it acts as a sponsoring entity. References in this paragraph (f) or paragraph (g) of this section to a sponsored direct reporting NFFE mean a sponsored direct reporting NFFE for which the sponsoring entity acts as a sponsoring entity under paragraph (c)(5)(ii) of this section.

    (2) Certification of compliance—(i) In general. The sponsoring entity must appoint a responsible officer to oversee the sponsoring entity's compliance with respect to each sponsored direct reporting NFFE for purposes of satisfying the requirements of paragraph (c)(5) of this section. On or before July 1 of the calendar year following the certification period, the responsible officer of the sponsoring entity must make a certification for the certification period with respect to all sponsored direct reporting NFFEs for which the sponsoring entity acts during the certification period on the form and in the manner prescribed by the IRS.

    (ii) Late-joining sponsored direct reporting NFFEs. In general, with respect to a certification period, a sponsoring entity is not required to make a certification for a sponsored direct reporting NFFE that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored direct reporting NFFE for subsequent certification periods, and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which the sponsored direct reporting NFFE was sponsored by the sponsoring entity. However, the preceding sentence does not apply to a sponsored direct reporting NFFE that, immediately before the NFFE agrees to be sponsored by the sponsoring entity, was a direct reporting NFFE or sponsored direct reporting NFFE of another sponsoring entity. The sponsoring entity may certify for a sponsored direct reporting NFFE described in the preceding sentence for the portion of the certification period prior to the date that the NFFE first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the NFFE (or the NFFE's sponsoring entity, if applicable) a written certification that the NFFE has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored direct reporting NFFE for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such NFFE was sponsored by the sponsoring entity.

    (iii) Certification period. The first certification period begins on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014, and ends at the close of the third full calendar year after such date. Each subsequent certification period is the three calendar year period following the close of the previous certification period.

    (iv) Certifications. The certification will require the responsible officer of the sponsoring entity to certify to the following statements—

    (A) The sponsoring entity meets all of the requirements of a sponsoring entity described in paragraph (c)(5)(ii) of this section;

    (B) The sponsoring entity has the written sponsorship agreement described in paragraph (f)(4) of this section in effect with each sponsored direct reporting NFFE;

    (C) There were no events of default (as defined in paragraph (g) of this section) with respect to the sponsoring entity, or, to the extent there were any such events of default, appropriate measures were taken by the sponsoring entity to remediate and prevent such events from reoccurring; and

    (D) With respect to any failure to report to the extent required under paragraph (c)(3)(ii) of this section with respect to one or more sponsored direct reporting NFFEs, the sponsoring entity has corrected such failure by filing the appropriate information returns.

    (3) IRS review of compliance—(i) General inquiries. The IRS, based upon the information reporting forms described in paragraph (c)(3)(ii) of this section filed with the IRS (or the absence of such reporting) by the sponsoring entity for each calendar year with respect to any sponsored direct reporting NFFE, may request additional information with respect to the information reported (or required to be reported) on the forms about any substantial U.S. owner reported on the form or the records for each direct reporting NFFE described in paragraph (c)(3)(iv) of this section. The IRS may also request any additional information from the sponsoring entity (including a copy of each sponsorship agreement the sponsoring entity has entered into with each sponsored FFI) to determine its compliance with paragraph (f) of this section with respect to each sponsored direct reporting NFFE and to assist the IRS with its review of any substantial U.S. owners' compliance with tax reporting requirements.

    (ii) Inquiries regarding substantial non-compliance. If, based on the information reporting forms referenced in paragraph (c)(3)(ii) of this section filed with the IRS by the sponsoring entity for each calendar year with respect to any sponsored direct reporting NFFE (or the absence of such reporting), the certification made by the responsible officer described in paragraph (f)(2) of this section (or the absence of such certification), or any other information related to the sponsoring entity's compliance with the requirements of a sponsoring entity with respect to each sponsored direct reporting NFFE for purposes of satisfying the requirements of paragraph (c)(5) of this section, the IRS determines in its discretion that the sponsoring entity may not have substantially complied with these requirements, the IRS may request from the responsible officer information necessary to verify the sponsoring entity's compliance with such requirements. The IRS may also request the performance of specified review procedures by a person (including an external auditor or third-party consultant) that the IRS identifies as competent to perform such procedures given the circumstances surrounding the sponsoring entity's potential failure to comply with the requirements of a sponsoring entity.

    (4) Sponsorship agreement. The sponsoring entity must have a written sponsorship agreement in effect between the sponsoring entity and each sponsored direct reporting NFFE in which—

    (i) The sponsored direct reporting NFFE agrees to provide the sponsoring entity access to the sponsored direct reporting NFFE's books and records regarding each of its owners (including AML/KYC documentation regarding the sponsored direct reporting NFFE's owners provided by the sponsored direct reporting NFFE with respect to each financial account it holds) and such other information sufficient for the sponsoring entity to determine the direct and indirect substantial U.S. owners of the sponsored direct reporting NFFE, including the information about such owners required under paragraph (c)(3)(ii) of this section to be reported on Form 8966, “FATCA Report” (or such other form as the IRS may prescribe);

    (ii) The sponsored direct reporting NFFE obtains a valid and effective waiver of any legal prohibitions on reporting the information about its direct and indirect substantial U.S. owners required under paragraph (c)(3)(ii) of this section to be reported on Form 8966 (or such other form as the IRS may prescribe);

    (iii) The sponsored direct reporting NFFE authorizes the sponsoring entity to act on the sponsored direct reporting NFFE's behalf with respect to the sponsored direct reporting NFFE's obligations as a sponsored direct reporting NFFE (for example, authorizing the sponsoring entity to file Form 8966 on the sponsored direct reporting NFFE's behalf, responding to the IRS inquiries described in paragraph (f)(3) of this section, and providing the certification described in paragraph (f)(2) of this section);

    (iv) The sponsored direct reporting NFFE agrees to identify to the sponsoring entity on request each withholding agent and financial institution to which the sponsored direct reporting NFFE reports its status as a sponsored direct reporting NFFE and agrees to provide to the sponsoring entity a copy of the withholding certificate or written statement prescribed in § 1.1471-3(d)(11)(x)(B) (as applicable) that the sponsored direct reporting NFFE provides to each such withholding agent or financial institution;

    (v) The sponsored direct reporting NFFE represents that it does not have any formal or informal practices or procedures to assist its substantial U.S. owners with the avoidance of the requirements of chapter 4;

    (vi) The sponsored direct reporting NFFE agrees to cooperate with the sponsoring entity in responding to any IRS inquiries under paragraph (f)(3) of this section with respect to the sponsored direct reporting NFFE; and

    (vii) The sponsoring entity retains the records described in paragraphs (c)(3)(iii) and (iv) of this section for the longer of six years or the retention period under the sponsoring entity's normal business procedures. A sponsoring entity may be required to extend the retention period if the IRS requests such an extension prior to the expiration of the period.

    (g) Sponsoring entity event of default—(1) Defined. An event of default by the sponsoring entity means the occurrence of any of the following—

    (i) Failure to have the written sponsorship agreement described in paragraph (f)(4) of this section in effect with each sponsored direct reporting NFFE;

    (ii) Failure to satisfy the requirements of paragraph (c)(3)(iii) of this section with respect to each sponsored direct reporting NFFE that the NFFE would have been required to satisfy as a direct reporting NFFE;

    (iii) Failure to report to the IRS on Form 8966, “FATCA Report,” (or such other form as the IRS may prescribe) all of the information required under paragraph (c)(3)(ii) of this section with respect to each sponsored direct reporting NFFE and each of its substantial U.S. owners (or report to the IRS on Form 8966 that the sponsored direct reporting NFFE had no substantial U.S. owners) by the due date of the form (including any extensions);

    (iv) Failure to make the certification required under paragraph (f)(2) of this section;

    (v) Failure to cooperate with an IRS request for additional information described in paragraph (f)(3) of this section, including requests for the records described in paragraph (c)(3)(iv) of this section and requests to extend the retention period for these records as described in (f)(4)(vii) of this section;

    (vi) Making any fraudulent statement or misrepresentation of material fact to the IRS or representing to a withholding agent or the IRS its status as a sponsoring entity under paragraph (c)(5) of this section for an entity other than an entity for which it acts as a sponsoring entity; or

    (vii) Failure to obtain from each sponsored direct reporting NFFE the information required to report on Form 8966.

    (2) Notice of event of default. Following an event of default known by or disclosed to the IRS, the IRS will deliver to the sponsoring entity a notice of default specifying the event of default and, if applicable, identifying each sponsored direct reporting NFFE to which the notice relates. The IRS will request that the sponsoring entity remediate the event of default within 45 days (unless additional time is requested and agreed to by the IRS). The sponsoring entity must respond to the notice of default and provide information responsive to an IRS request for information or state the reasons why the sponsoring entity does not agree that an event of default has occurred.

    (3) Remediation of event of default. A sponsoring entity will be permitted to remediate an event of default to the extent that it agrees with the IRS on a remediation plan. The IRS may, as part of a remediation plan, require additional information from the sponsoring entity, remedial actions, or the performance of the specified review procedures described in paragraph (f)(3)(ii) of this section.

    (4) Termination—(i) In general. If the sponsoring entity does not provide a response to a notice of default within the period specified in paragraph (g)(2) of this section, or if the sponsoring entity does not satisfy the conditions of the remediation plan within the time period specified by the IRS, the IRS may deliver a notice of termination that terminates the sponsoring entity's status, the status of one or more sponsored direct reporting NFFEs as a direct reporting NFFE, or both the sponsoring entity and one or more sponsored direct reporting NFFEs.

    (ii) Termination of sponsoring entity. If the IRS notifies the sponsoring entity that its status is terminated, the sponsoring entity must send notice of the termination to each withholding agent from which it receives payments and each financial institution with which it holds an account for which a withholding certificate or written statement prescribed in § 1.1471-3(d)(11)(x)(B) (as applicable) was provided with respect to each sponsored direct reporting NFFE within 30 days after the date of termination. A sponsoring entity that has had its status terminated cannot reregister on the FATCA registration Web site to act as a sponsoring entity for any sponsored direct reporting NFFE unless it receives written approval from the IRS. Unless the status of the sponsored direct reporting NFFEs has been terminated, the sponsored direct reporting NFFEs may register on the FATCA registration Web site as direct reporting NFFEs or as sponsored direct reporting NFFEs of another sponsoring entity, other than a sponsoring entity that is related to the sponsoring entity that was terminated. An entity is related to the terminated sponsoring entity if they have a relationship with each other that is described in section 267(b).

    (iii) Termination of sponsored direct reporting NFFE. If the IRS notifies the sponsoring entity that the status of a sponsored direct reporting NFFE is terminated (but not the sponsoring entity's status), the sponsoring entity must remove the sponsored direct reporting NFFE from the sponsoring entity's registration account on the FATCA registration Web site and send notice of the termination to each withholding agent from which the sponsored direct reporting NFFE receives payments and each financial institution with which it holds an account for which a withholding certificate or written statement prescribed in § 1.1471-3(d)(11)(x)(B) (as applicable) was provided with respect to such sponsored direct reporting NFFE within 30 days after the date of termination. A sponsored direct reporting NFFE that has had its status as a sponsored direct reporting NFFE terminated (independent from a termination of status of its sponsoring entity) may not register on the FATCA registration Web site as a direct reporting NFFE or as a sponsored direct reporting NFFE of another sponsoring entity unless it receives written approval from the IRS.

    (iv) Reconsideration of notice of default or notice of termination. A sponsoring entity or sponsored direct reporting NFFE may request, within 90 days of a notice of default or notice of termination, reconsideration of the notice of default or notice of termination by written request to the IRS.

    Par. 7. Section 1.1474-1 is amended by adding paragraph (d)(4)(vii) to read as follows:
    § 1.1474-1 Liability for withheld tax and withholding agent reporting.

    (d) * * *

    (4) * * *

    (vii) [The text of proposed § 1.1474-1(d)(4)(vii) is the same as the text of § 1.1474-1T(d)(4)(vii) published elsewhere in this issue of the Federal Register].

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-31599 Filed 12-30-16; 4:15 pm] BILLING CODE 4830-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-134247-16] RIN 1545-BN73 Revision of Regulations Under Chapter 3 Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking by cross-reference to temporary regulations.

    SUMMARY:

    In the Rules and Regulations section of this issue of the Federal Register, the Department of the Treasury (Treasury Department) and the IRS are issuing temporary regulations (TD 9808) that revise certain provisions of the final regulations regarding withholding of tax on certain U.S. source income paid to foreign persons and requirements for certain claims for refund or credit of income tax made by foreign persons. The text of the temporary regulations also serves as the text of these proposed regulations.

    DATES:

    Written or electronic comments and requests for a public hearing must be received by April 6, 2017.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-134247-16), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-134247-16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, or sent electronically, via the Federal eRulemaking Portal at www.regulations.gov (IRS REG-134247-16).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Leni Perkins, (202) 317-6942; concerning submissions of comments and/or requests for a public hearing, Regina Johnson, (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Background

    The temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 1441 of the Internal Revenue Code (Code). The temporary regulations set forth rules relating to withholding and reporting requirements under chapter 3 of the Code, including rules relating to claims for a reduced rate of withholding under an income tax treaty. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations.

    Special Analyses

    Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13653. Therefore, a regulatory assessment is not required.

    It is hereby certified that the collection of information in this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6).

    The domestic small business entities that are subject to the collections of information in this notice of proposed rulemaking are those domestic business entities that are payors of certain U.S. source income to foreign persons. These domestic small business entities are subject to comprehensive rules under chapter 3 to identify the proper treatment of payees for purposes of that chapter's information reporting and tax withholding purposes. The domestic small business entities subject to the collections of information in this notice of proposed rulemaking are also subject to comprehensive information reporting and tax withholding rules under chapters 4 and 61 with respect to payments of certain U.S. source income subject to information reporting and tax reporting under chapter 3. These payors are also subject to information and reporting rules under section 3406.

    Payors of payments that are subject to the information reporting and withholding regimes under chapter 3 play an important role in U.S. tax compliance by providing information about payments made to, and income earned by, U.S. and foreign taxpayers.

    Although the Treasury Department and the IRS anticipate that a substantial number of domestic small entities will be affected by the collection of information in this notice of proposed rulemaking, the Treasury Department and the IRS believe that the economic impact to these entities resulting from the information collection requirements will not be significant. The reporting obligations under these proposed regulations flow from the obligations that domestic small entities may have as withholding agents for payments of amounts subject to withholding under sections 1441 or 1442. As withholding agents, these entities have already been subject to the overall framework of these regulations, and the economic burden of complying with any additional requirements will be minimal. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

    Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments that are submitted timely to the IRS as prescribed in this preamble under the “ADDRESSES” heading. The Treasury Department and the IRS request comments on all aspects of the proposed rules, including comments on the clarity of the proposed rules and how compliance therewith could be made easier. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

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

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.1441-1 is amended by: 1. Adding paragraphs (b)(7)(ii)(B) and (c)(2)(ii). 2. Revising paragraph (c)(3)(ii). 3. Adding paragraphs (c)(38)(ii), (e)(2)(ii)(B), (e)(3)(iv)(C)(3), (e)(4)(i)(B), (e)(4)(ii)(A)(2), (e)(4)(iv)(D), and (e)(4)(iv)(E).

    The revisions and additions read as follows:

    § 1.1441-1 Requirement for the deduction and withholding of tax on payments to foreign persons.

    (b) * * *

    (7) * * *

    (ii) * * *

    (B) [The text of the proposed amendment to § 1.1441-1(b)(7)(ii)(B) is the same as the text of § 1.1441-1T(b)(7)(ii)(B) published elsewhere in this issue of the Federal Register.]

    (c) * * *

    (2) * * *

    (ii) [The text of the proposed amendment to § 1.1441-1(c)(2)(ii) is the same as the text of § 1.1441-1T(c)(2)(ii) published elsewhere in this issue of the Federal Register.]

    (3) * * *

    (ii) [The text of the proposed amendment to § 1.1441-1(c)(3)(ii) is the same as the text of § 1.1441-1T(c)(3)(ii) published elsewhere in this issue of the Federal Register.]

    (38) * * *

    (ii) [The text of the proposed amendment to § 1.1441-1(c)(38)(ii) is the same as the text of § 1.1441-1T(c)(38)(ii) published elsewhere in this issue of the Federal Register.]

    (e) * * *

    (2) * * *

    (ii) * * *

    (B) [The text of the proposed amendment to § 1.1441-1(e)(2)(ii)(B) is the same as the text of § 1.1441-1T(e)(2)(ii)(B) published elsewhere in this issue of the Federal Register.]

    (3) * * *

    (iv) * * *

    (C) * * *

    (3) [The text of the proposed amendment to § 1.1441-1(e)(3)(iv)(C)(3) is the same as the text of § 1.1441-1T(e)(3)(iv)(C)(3) published elsewhere in this issue of the Federal Register.]

    (4) * * *

    (i) * * *

    (B) [The text of the proposed amendment to § 1.1441-1(e)(4)(i)(B) is the same as the text of § 1.1441-1T(e)(4)(i)(B) published elsewhere in this issue of the Federal Register.]

    (ii) * * *

    (A) * * *

    (2) [The text of the proposed amendment to § 1.1441-1(e)(4)(ii)(A)(2) is the same as the text of § 1.1441-1T(e)(4)(ii)(A) published elsewhere in this issue of the Federal Register.]

    (iv) * * *

    (D) [The text of the proposed amendment to § 1.1441-1(e)(4)(iv)(D) is the same as the text of § 1.1441-1T(e)(4)(iv)(D) published elsewhere in this issue of the Federal Register.]

    (E) [The text of the proposed amendment to § 1.1441-1(e)(4)(iv)(E) is the same as the text of § 1.1441-1(e)(4)(iv)(E) published elsewhere in this issue of the Federal Register.]

    Par. 3. Section 1.1441-2 is amended by adding paragraph (a)(8) to read as follows:
    § 1.1441-2 Amounts subject to withholding.

    (a) * * *

    (8) [The text of the proposed amendment to § 1.1441-2(a)(8) is the same as the text of § 1.1441-2T(a)(8) published elsewhere in this issue of the Federal Register.]

    Par. 4. Section 1.1441-6 is amended by: 1. Adding paragraphs (b)(1)(i) and (b)(1)(ii). 2. Revising paragraphs (c)(1) and (c)(5)(i).

    The additions and revision read as follows:

    § 1.1441-6 Claim of reduced withholding under an income tax treaty.

    (b) * * *

    (1) * * *

    (i) [The text of the proposed amendment to § 1.1441-6(b)(1)(i) is the same as the text of § 1.1441-6T(b)(1)(i) published elsewhere in this issue of the Federal Register.]

    (ii) [The text of the proposed amendment to § 1.1441-6(b)(1)(ii) is the same as the text of § 1.1441-6T(b)(1)(ii) published elsewhere in this issue of the Federal Register.]

    (c) * * *

    (1) [The text of the proposed amendment to § 1.1441-6(c)(1) is the same as the text of § 1.1441-6T(c)(1) published elsewhere in this issue of the Federal Register.]

    (5) * * *

    (i) [The text of the proposed amendment to § 1.1441-6(c)(5)(i) is the same as the text of § 1.1441-6T(c)(5)(i) published elsewhere in this issue of the Federal Register.]

    Par. 5. Section 1.1441-7 is amended by adding paragraph (b)(10)(iv) to read as follows:
    § 1.1441-7 General provisions relating to withholding agents.

    (b) * * *

    (10) * * *

    (iv) [The text of the proposed amendment to § 1.1441-7(b)(10)(iv) is the same as the text of § 1.1441-7T(b)(10)(iv) published elsewhere in this issue of the Federal Register.]

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-31589 Filed 12-30-16; 4:15 pm] BILLING CODE 4830-01-P
    DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 1 [NPS-WASO-REGS-17326; GPO Deposit Account 4311H2] RIN 1024-AE30 General Provisions; Electronic Cigarettes AGENCY:

    National Park Service; Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    The National Park Service proposes to revise the regulation that defines smoking to include the use of electronic cigarettes and other electronic nicotine delivery systems. The National Park Service also proposes to allow a superintendent to close an area, building, structure, or facility to smoking when necessary to maintain public health and safety.

    DATES:

    Comments must be received by 11:59 p.m. EST on March 7, 2017.

    ADDRESSES:

    You may submit your comments, identified by Regulation Identifier Number (RIN) 1024-AE30, by any of the following methods:

    Electronically: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Hard copy: Mail or hand deliver to: A.J. North, Regulations Program, National Park Service, 1849 C Street NW., MS-2355, Washington, DC 20240.

    Instructions: All submissions received must include the agency name and RIN for this rulemaking. We will only accept comments as noted above. We will not accept comments via email, fax or by any other methods. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For additional information, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Sara Newman, Director, Office of Public Health, by telephone 202-513-7225, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    Background General Authority and Jurisdiction

    In the National Park Service Organic Act of 1916, Congress granted the National Park Service (NPS) broad authority to regulate the use of areas under its jurisdiction to “conserve the scenery, natural and historic objects, and wild life in [National Park] System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 54 U.S.C. 100101. The Organic Act authorizes the Secretary of the Interior, acting through the NPS, to “prescribe such regulations as the Secretary considers necessary or proper for the use and management of [National Park] System units.” 54 U.S.C. 100751.

    NPS Smoking Regulation and Policy

    The NPS protects park resources and visitors by regulating smoking within park areas. The regulation governing smoking (36 CFR 2.21) was last amended in 1983. This regulation allows the superintendent to designate a portion of a park area, or all or a portion of a building, structure, or facility as closed to smoking when necessary to protect park resources, reduce the risk of fire, or prevent conflicts among visitor use activities. The regulation prohibits smoking in an area or location so designated and within all caves and caverns. The existing definition of “smoking” in section 1.4 is limited to combustible sources such as a tobacco cigarette; it does not include the use of electronic cigarettes and other electronic nicotine delivery systems (ENDS). Since 2009, ENDS have emerged as an alternative means of nicotine delivery, one that does not require the burning of tobacco. Essentially, when a user “draws” on an ENDS, a liquid solution containing nicotine is heated and vaporized, and inhaled by the user. The user then exhales a vapor that mimics the exhalation from a lit tobacco cigarette.

    NPS policy with respect to tobacco smoking is found in Director's Order #50D (Smoking Policy), originally issued in 2003, and then revised and reissued in 2009. The purpose of the Order—in conformity with Executive Order 13058 (Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace)—is to “protect employees and park visitors from the health hazards and annoyances associated with” exposure to environmental tobacco smoke, commonly known as “second-hand” smoke, which is a known human carcinogen.

    The Director issued Policy Memorandum 15-03 (Use of Electronic Nicotine Delivery Systems) on September 10, 2015. This policy establishes NPS guidance on the use of ENDS within all facilities and vehicles that are Government owned or leased, and within concessions facilities. The purpose of the Policy Memorandum is to afford all NPS employees and park visitors the same protections from exposure to nicotine and other harmful substances that may be found in ENDS vapor that are currently in place for tobacco smoke. Under this policy, use of ENDS is now treated as tobacco smoking and all provisions of Director's Order #50D apply to ENDS use. With regard to concessions facilities, the Policy Memorandum requires that ENDS use be treated the same as smoking for purposes of NPS Management Policies (2006).

    Director's Order #50D and Policy Memorandum 15-03 are available online on the NPS Office of Policy Web site at http://www.nps.gov/applications/npspolicy/index.cfm by clicking on the drop-down menu and selecting “Smoking” from the list of policy subjects.

    Proposed Revision of NPS Regulations at 36 CFR 1.4 and 2.21

    The NPS proposes to apply its smoking regulations at 36 CFR 2.21 to ENDS use the same way they currently apply to tobacco smoking. The basis for this regulatory change is stated below and in Policy Memorandum 15-03 and will make NPS regulations consistent with NPS policy on this subject.

    Non-smokers are exposed to nicotine and other potentially harmful components of ENDS vapor at higher than background levels when passively exposed to second hand vapor.1 The vapor exhaled from an ENDS also contains potentially harmful levels of particulate matter in addition to nicotine, as well as potentially toxic compounds such as carbonyls, metals, and organic volatile compounds.2 There has been increased attention in the scientific community to explore the level of potentially harmful constituents in ENDS vapor.3 Despite lower levels of nicotine than in second-hand smoke, exhaled ENDS aerosols result in similar nicotine uptake levels as measured by blood serum cotinine levels in bystanders.4 In the case of particulate matter, epidemiological studies show adverse effects of particulate matter when only slightly elevated above background levels indicating that we should strive to achieve the lowest concentrations possible.5 The Division of Pharmaceutical Analysis of the Food and Drug Administration (FDA) analyzed the ingredients in a sample of cartridges from two leading brands of ENDS, and found the devices emitted (1) tobacco-specific nitrosamines (human carcinogens), and (2) diethylene glycol, a chemical used in antifreeze that is toxic to humans.6 Further research is required before it is known whether second hand exposure to ENDS vapor will result in negative health outcomes as with tobacco smoke.7 According to the World Health Organization (WHO), simply because ENDS exhaled aerosols contain lower levels of toxicants than tobacco smoke it does not mean second hand exposure is acceptable and special consideration is needed for sensitive populations like pregnant women, developing fetuses, and adolescents.8

    1 See “Cigarettes vs. e-cigarettes: Passive exposure at home measured by means of airborne marker and biomarkers” (http://www.sciencedirect.com/science/article/pii/S0013935114003089). See “Secondhand Exposure to Vapors From Electronic Cigarettes” (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4565991).

    2 See http://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6_10-en.pdf.

    3 See http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm499234.htm.

    4 See “Cigarettes vs. e-cigarettes: Passive exposure at home measured by means of airborne marker and biomarkers” (http://www.sciencedirect.com/science/article/pii/S0013935114003089).

    5 See http://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6_10-en.pdf.

    6 See http://www.fda.gov/downloads/drugs/scienceresearch/ucm173250.pdf.

    7 See http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm499234.htm.

    8 See http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm499234.htm.

    The Surgeon General's 2014 report The Health Consequences of Smoking- 50 Years of Progress (Report) documents the devastating health consequences of tobacco smoking and also calls for “rigorous surveillance” of ENDS in order to weigh their risks and potential benefits (e.g., their possible efficacy in reducing use of combustible tobacco products).9 (Page 761). The Report concludes that, in light of the links between tobacco product use and ill health, “all products containing tobacco and nicotine should be assumed to be both harmful and addictive.” (Page 780). In 2016, the Surgeon General issued a report entitled “E-Cigarette Use Among Youth and Young Adults.” 10 This Report emphasized that ENDS use among youth and young adults is a public health concern. The Report concluded that aerosol can contain harmful and potentially harmful constituents, including nicotine, which can cause addiction and harm the developing adolescent brain. The Report stated that the use of products containing nicotine, including ENDS, poses dangers to youth, pregnant women, and fetuses. In a report released August 26, 2014, the WHO called for a ban on the indoor use of ENDS, especially in those spaces where smoking is banned.11 (See Item #41, page 11.)

    9 See http://www.surgeongeneral.gov/library/reports/50-years-of-progress/.

    10 See https://e-cigarettes.surgeongeneral.gov/documents/2016_SGR_Full_Report_non-508.pdf.

    11 See http://apps.who.int/gb/fctc/PDF/cop6/FCTC_COP6_10-en.pdf.

    On May 5, 2016, the FDA finalized a rule (81 FR 28973) extending its authority to ENDS under the Family Smoking Prevention and Tobacco Control Act (Pub. L. 111-31; 123 Stat. 1776). The rule brings ENDS in line with regulations that have governed tobacco products since 2009. The rule prohibits the sale of ENDS to minors, requires ENDS to meet applicable product standards and receive marketing authorization from the FDA, requires the reporting of ingredients, and places health warnings on product packages and advertisements. The FDA expressed concerns about the increasing use of ENDS, especially among middle and high school students, and explained that the rule will “help protect Americans from the dangers of tobacco and nicotine.” 12 The FDA stated that nicotine is dangerous and highly addictive, even when it comes from ENDS use, and that research has clearly demonstrated that exposure to nicotine at a young age increases the chance that kids will become addicted. In addition to nicotine exposure, the FDA stated there are numerous other chemicals present in ENDS that can cause disease.13

    12 See http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm499234.htm.

    13 See http://www.fda.gov/TobaccoProducts/NewsEvents/ucm499383.htm.

    The General Services Administration (GSA) has advised the managers of all GSA-occupied space—which includes space rented by GSA on behalf of NPS—that ENDS are subject to the same restrictions imposed on smoking tobacco products. The U.S. Fish and Wildlife Service's (FWS) policy found at 242 FW 13 goes even further, and prohibits “vaping”—another name for ENDS use—in all interior spaces of FWS facilities, whether Government owned or leased.14 In addition, vaping is also prohibited “in motor vehicles, heavy equipment, aircraft, and most watercraft” owned, leased, or controlled by the FWS. Similarly, on August 14, 2014, the U.S. Geological Survey (USGS) banned the use of ENDS “in all interior space, courtyards, atriums, balconies and bus stops.” See, USGS Manual 370.792.3.15

    14 See http://www.fws.gov/policy/242fw13.html.

    15 See http://www.usgs.gov/usgs-manual/370-600/370-7923.html.

    In addition to public health risks from the inhalation of vapor, ENDS also pose a risk of explosion and fire. A 2014 Federal Emergency Management Agency (FEMA) report stated that fires or explosions caused by the failure of lithium-ion batteries in ENDS are rare, but possible.16 Between 2009 and August 2014, 25 incidents of explosion and fire involving e-cigarettes were reported in the U.S. Most of the incidents occurred while the battery was charging, but serious burn injuries were also reported from explosions when the device was in the user's mouth. FEMA stated that the shape and construction of e-cigarettes can make them more likely than other products with lithium-ion batteries to behave like “flaming rockets” when a battery fails. FEMA concluded that the number of fires and explosions will likely increase as the number of lithium-ion batteries in use continues to grow.

    16 See https://www.usfa.fema.gov/downloads/pdf/publications/electronic_cigarettes.pdf.

    Acting out of an abundance of caution in light of the scientific findings and uncertainty to date, and in the interest of equity, the purpose of this proposed rule (similar to the purpose of Policy Memorandum 15-03) is to afford all NPS employees and park visitors the same protections from exposure to nicotine and other harmful substances that may be found in ENDS vapor that are currently in place for exposure to tobacco smoke.

    The proposed rule would add a new definition to 36 CFR 1.4 that defines “Electronic nicotine delivery system” as an electronic device, such as an electronic cigarette, that a person uses to simulate smoking by inhaling vapor from the device. The proposed rule would revise the definition of “Smoking” in 36 CFR 1.4 to include the direct inhalation of vapor from an electronic nicotine delivery system. The NPS also proposes to add a new basis for which a superintendent may close an area or building, structure, or facility to smoking in 36 CFR 2.21—when necessary to maintain public health and safety. This reflects the health risks associated with smoking tobacco products and using ENDS. An existing basis in the regulations for restricting tobacco smoking—to reduce the risk of fire—also would apply to the use of ENDS for the reasons explained above. After these changes are made, the smoking regulation at 2.21 would apply to the smoking of tobacco and the use of ENDS, consistent with NPS policy.

    Compliance With Other Laws, Executive Orders, and Department Policy Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

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

    Regulatory Flexibility Act (RFA)

    This rule will not have a significant economic effect on a substantial number of small entities under the RFA(5 U.S.C. 601 et seq.). This certification is based on information contained in the economic analyses found in the report entitled “Benefit-Cost and Regulatory Flexibility Analyses: Proposed Regulation Revisions for Electronic Nicotine Delivery Systems” which is available online on the NPS Office of Policy Web site at http://www.nps.gov/applications/npspolicy/index.cfm by clicking on the drop-down menu and selecting “E-cigarettes” from the list of policy subjects.

    Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

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

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

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

    Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

    Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

    Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.

    Civil Justice Reform (Executive Order 12988)

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

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

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

    Consultation With Indian tribes (Executive Order 13175 and Department Policy)

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

    Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act of 1969 (NEPA)

    This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of administrative, legal, and technical nature (43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

    Effects on the Energy Supply (Executive Order 13211)

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

    Clarity of This Rule

    We are required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    Drafting Information: The primary authors of this rule are Jay Calhoun and Russel J. Wilson, Division of Regulations, Jurisdiction, and Special Park Uses, and Michael M. Shelton, Program Analyst, Office of Policy, National Park Service, Washington, DC.

    Public Participation

    It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the ADDRESSES section. All comments must be received by midnight of the close of the comment period. We will not accept comments by fax, email or by any other methods. Bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted.

    Public Availability of Comments

    Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    List of Subjects in 36 CFR Part 1

    National parks, Penalties, Reporting and recordkeeping requirements, Signs and symbols.

    In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 1 as set forth below:

    PART 1—GENERAL PROVISIONS 1. The authority citation for part 1 continues to read as follows: Authority:

    54 U.S.C. 100101, 100751, 320102.

    2. In § 1.4 amend paragraph (a) by adding, in alphabetical order, the term “Electronic nicotine delivery system” and revising the term “Smoking” to read as follows:
    § 1.4 What terms do I need to know?

    (a) * * *

    Electronic nicotine delivery system means an electronic device, such as an electronic cigarette, that a person uses to simulate smoking by inhaling vapor from the device.

    Smoking means the carrying of lighted cigarettes, cigars or pipes; or the intentional and direct inhalation of smoke from these objects; or the direct inhalation of vapor from an electronic nicotine delivery system.

    3. In § 2.21, revise paragraph (a) to read as follows:
    § 2.21 Smoking

    (a) The superintendent may designate a portion of a park area, or all or a portion of a building, structure or facility as closed to smoking when necessary to maintain public health and safety, to protect park resources, reduce the risk of fire, or prevent conflicts among visitor use activities. Smoking in an area or location so designated is prohibited.

    Dated: December 20, 2016. Michael Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-31957 Filed 1-5-17; 8:45 am] BILLING CODE 4312-52-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 372 [EPA-HQ-TRI-2016-0390; FRL-9953-68] RIN 2070-AK16 Addition of Natural Gas Processing Facilities to the Toxics Release Inventory (TRI) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    EPA is proposing to add natural gas processing (NGP) facilities (also known as natural gas liquid extraction facilities) to the scope of the industrial sectors covered by the reporting requirements of section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), commonly known as the Toxics Release Inventory (TRI) and section 6607 of the Pollution Prevention Act (PPA). Adding these facilities would meaningfully increase the information available to the public on releases and other waste management of listed chemicals from the natural gas processing sector and further the purposes of EPCRA section 313. EPA estimates that at least 282 NGP facilities in the U.S. would meet the TRI employee threshold (10 full-time employees or equivalent) and manufacture, process, or otherwise use (threshold activities) at least one TRI-listed chemical in excess of applicable threshold quantities. NGP facilities in the U.S. manufacture, process, or otherwise use more than 21 different TRI-listed chemicals, including n-hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol. EPA expects that TRI reporting by U.S. NGP facilities would provide significant release and waste management data on these chemicals to the public.

    DATES:

    Comments must be received on or before March 7, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-TRI-2016-0390, at http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods (e.g., mail or hand delivery), 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 docket contains supporting information used in developing the proposed rule, comments on the proposed rule, and additional supporting information. A public version of the docket is available for inspection and copying between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding federal holidays, at the U.S. Environmental Protection Agency, EPA Docket Center Reading Room, WJC West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004. A reasonable fee may be charged for copying.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: David Turk, Regulatory Development Branch, Office of Pollution Prevention and Toxics (7410M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; 202-566-1527; email address: [email protected], for specific information on this notice.

    For general information contact: The Emergency Planning and Community Right-to-Know Act (EPCRA) Hotline; telephone numbers: toll free at (800) 424-9346 (select menu option 3) or (703) 412-9810 in the Washington, DC Area and International; or toll free, TDD (800) 553-7672; or go to http://www.epa.gov/superfund/contacts/infocenter.

    SUPPLEMENTARY INFORMATION:

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

    Entities potentially regulated by this proposed action are those facilities that primarily engage in the recovery of liquid hydrocarbons from oil and gas field gases, including facilities that engage in sulfur recovery from natural gas, and which manufacture, process, or otherwise use chemicals listed at 40 CFR 372.65 and meet the reporting requirements of EPCRA section 313, 42 U.S.C. 11023, and PPA section 6607, 42 U.S.C. 13106. These facilities are categorized under Standard Industrial Classification (SIC) code 1321 and North American Industry Classification System (NAICS) code 211112. Note that the TRI regulations currently use the 2012 set of NAICS codes, as discussed further in Units II.D. and IV.C.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    II. Introduction A. What is the statutory authority for this proposed rule?

    This action is taken under EPCRA sections 313(b) and 328, 42 U.S.C. 11023(b) and 11048.

    Specifically, EPCRA section 313(b)(1)(B), 42 U.S.C. 11023(b)(1)(B), states that the Agency may “add or delete Standard Industrial Codes for purposes of subparagraph (A), but only to the extent necessary to provide that each Standard Industrial Code is relevant to the purposes of this section.” In addition, Congress granted EPA broad rulemaking authority under EPCRA section 328, 28 U.S.C. 11048, which provides that the “Administrator may prescribe such regulations as may be necessary to carry out this chapter.”

    B. What are the toxics release inventory reporting requirements and whom do they affect?

    EPCRA section 313, 42 U.S.C. 11023, requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to PPA section 6607, 42 U.S.C. 13106. Congress established the original scope of TRI sectors subject to EPCRA section 313 reporting, requiring reporting by facilities in the manufacturing sectors covered by SIC codes 20 through 39. In 1997, EPA exercised its statutory authority under EPCRA to add SIC Codes to the scope of TRI, adding (with some limitations) metal mining, coal mining, electric utilities, commercial hazardous waste treatment, chemicals and allied products-wholesale, petroleum bulk plants and terminals-wholesale, and solvent recovery services. (62 FR 23834, May 1, 1997).

    Regulations at 40 CFR part 372, subpart B, require facilities that meet all of the following criteria to report:

    • The facility has 10 or more full-time employee equivalents (i.e., a total of 20,000 hours worked per year or greater; see 40 CFR 372.3); and

    • The facility is included in a NAICS Code listed at 40 CFR 372.23, or under Executive Order 13148, Federal facilities regardless of their industry classification; and

    • The facility manufactures (defined by statute to include importing), processes, or otherwise uses any EPCRA section 313 (TRI) chemical in quantities greater than the established thresholds for the specific chemical in the course of a calendar year.

    Facilities that meet the criteria must file a Form R report or, in some cases, may submit a Form A Certification Statement, for each listed toxic chemical for which the criteria are met. As specified in EPCRA section 313(a), the report for any calendar year must be submitted on or before July 1 of the following year. For example, reporting year 2015 data should have been postmarked on or before July 1, 2016.

    The list of toxic chemicals subject to TRI reporting can be found at 40 CFR 372.65. This list is also published every year as Table II in the current version of the Toxics Release Inventory Reporting Forms and Instructions. The current TRI chemical list contains 594 individually listed chemicals and 31 chemical categories.

    C. How does EPA decide to propose adding industry sectors to the coverage of TRI?

    As described in Units II.A. and II.B., Congress provided EPA with explicit statutory authority to expand the categories of facilities required to report under EPCRA section 313, and EPA exercised that authority to add sectors in 1997. (62 FR 23834, May 1, 1997). When adding these seven sectors, EPA considered three factors:

    • Chemical Factor—Whether one or more toxic chemicals are reasonably anticipated to be present at facilities within the candidate industry group.

    • Activity Factor—Whether facilities within the candidate industry group “manufacture,” “process,” or “otherwise use” these toxic chemicals.

    • Information Factor—Whether facilities within the candidate industry group can reasonably be anticipated to increase the information made available pursuant to EPCRA section 313, or otherwise further the purposes of EPCRA section 313. This factor may include consideration of: (1) Whether the addition of the candidate industry group would lead to reporting by facilities within that candidate industry group (e.g., whether facilities within the candidate industry group would conduct activities that exceed the reporting thresholds in EPCRA section 313(f)); (2) whether facilities within the candidate industry group are likely to be subject to an existing statutory or regulatory exemption from the requirement to file a Form R; (3) whether submitted Form R reports from that industry group could be expected to contain release and waste management data; or (4) whether a significant portion of the facilities in the industry group would be expected to file a Form A. (See 61 FR 33588, 33594, June 27, 1996).

    As explained in Units II.D. and III.A. of the 1997 Final Rule, EPA identified these three factors in determining whether the statutory standard in EPCRA section 313(b)(1)(B) would be met by addition of the candidate facilities.

    D. What are North American Industry Classification System (NAICS) codes?

    On April 9, 1997, the Office of Management and Budget (OMB) published in the Federal Register a final decision to adopt the NAICS for the U.S. (62 FR 17288.) The NAICS industry classification system replaced the SIC system that government agencies had used for collecting statistical data and for other administrative and regulatory purposes. EPA transitioned to NAICS codes for TRI reporting purposes when it amended its regulations on June 6, 2006, to include NAICS codes in addition to SIC codes. (71 FR 32464.) The list of TRI NAICS codes that appeared in the final rule was developed from the OMB 2002 NAICS revision. OMB revises NAICS Codes every 5 years. Accordingly, EPA updated the list of TRI NAICS codes in 2008 (73 FR 32466, June 9, 2008) (FRL-8577-1) to incorporate changes to the TRI NAICS codes resulting from the OMB 2007 NAICS revision. In 2013, EPA updated the list of TRI NAICS codes to conform to the OMB 2012 NAICS revision (78 FR 42875, July 18, 2013) (FRL-9825-8). On August 8, 2016, OMB published a notice to adopt, with one minor exception, the recommended NAICS revisions for 2017 (81 FR 52584). EPA anticipates promulgating a separate rule to align the list of NAICS codes TRI uses to the OMB NAICS revisions for 2017. An alignment of the NAICS codes used by TRI would not alter the scope of this proposed addition of NGP facilities. Because TRI currently uses the set of NAICS codes for 2012, this action refers to the set of NAICS codes for 2012 unless otherwise stated, as further discussed in Unit IV.C.

    E. Why do some natural gas processing facilities already submit TRI reporting forms to EPA?

    Some NGP facilities are already subject to TRI reporting requirements because NGP facilities that primarily recover sulfur from natural gas are part of a manufacturing sector that was originally subjected to reporting by Congress.

    Specifically, the scope of TRI sectors subject to reporting includes SIC code 2819 (Industrial Inorganic Chemicals, Not Elsewhere Classified), which was one of the manufacturing sectors in SIC 20-39 originally required to report to TRI by Congress. SIC code 2819 crosswalks to several manufacturing sector NAICS codes, including 211112 (Natural Gas Liquid Extraction), but only to the extent that it includes facilities that primarily engage in sulfur recovery from natural gas.

    Thus, when EPA began to use NAICS codes for TRI reporting purposes, the Agency listed NAICS 211112 with a qualifier to limit TRI coverage of the sector to facilities that fit SIC code 2819. See 40 CFR 372.23(b) (211112—Natural Gas Liquid Extraction): “Limited to facilities that recover sulfur from natural gas (previously classified under SIC 2819, Industrial Inorganic chemicals, NEC (recovering sulfur from natural gas)).”

    III. Background

    By a letter dated October 24, 2012, the Environmental Integrity Project (EIP), together with 16 other organizations, and later joined by two additional organizations (collectively, Petitioners), submitted a Petition to EPA pursuant to section 553(e) of the Administrative Procedure Act (APA) to add the Oil and Gas Extraction industrial sector (SIC code 13) to the scope of industrial sectors covered by the reporting requirements of the TRI. The Petition and related documents can be found in Docket ID No. EPA-HQ-TRI-2013-0281 at http://www.regulations.gov.

    A. What did the petition request?

    The Petitioners requested that EPA exercise its discretionary TRI sector addition authority to add the Oil and Gas Extraction sector, as defined by SIC code 13. SIC 13 is broad in scope, comprising the following subsectors:

    • Crude Petroleum and Natural Gas (SIC 1311);

    • Natural Gas Liquids (SIC 1321);

    • Drilling Oil and Gas Wells (SIC 1381);

    • Oil and Gas Field Exploration Services (SIC 1382); and

    • Oil and Gas Field Services, Not Elsewhere Classified (SIC 1389).

    These SIC-defined subsectors correspond to the following NAICS sectors, in whole or in part:

    • Crude Petroleum and Natural Gas Extraction (NAICS 211111);

    • Natural Gas Liquid Extraction (NAICS 211112);

    • Drilling Oil and Gas Wells (NAICS 213111);

    • Support Activities for Oil and Gas Operations (NAICS 213112);

    • Oil and Gas Pipeline and Related Structures Construction (NAICS 237120);

    • Site Preparation Contractors (NAICS 238910); and

    • Geophysical Surveying and Mapping Services (NAICS 541360).

    By requesting that EPA extend the TRI reporting requirements to SIC 13, the Petition requested that EPA add to TRI the SIC codes 1311, 1321, 1381, 1382, and 1389, along with the relevant portion of each corresponding NAICS code.

    B. How did EPA respond?

    On October 22, 2015, EPA granted, in part, the Petition insofar as it requested that EPA commence the rulemaking process to propose adding NGP facilities to the scope of TRI. EPA denied the remainder of the Petition. EPA's response to the Petition, including a full explanation of the Agency's rationale, can be found in Docket ID No. EPA-HQ-TRI-2013-0281 and as a reference in the docket for this proposal in Docket ID No. EPA-HQ-TRI-2016-0390 (Reference (Ref.) 1).

    IV. Proposed Addition of Natural Gas Processing Facilities to the Toxics Release Inventory A. Why is EPA proposing to add NGP facilities to the scope of TRI?

    According to a triennial survey of NGP facilities by the U.S. Energy Information Administration (EIA-757 survey), described further in an economic analysis EPA prepared for this rulemaking, there were 517 NGP facilities in the lower 48 states as of 2012 (Ref. 2). As explained more fully later in this document, EPA estimates that over half of these facilities would annually meet TRI reporting thresholds for at least one of more than 21 different TRI-listed chemicals and, if covered by the reporting requirements of TRI, would be required to submit TRI information to EPA (Ref. 2). The information likely to be obtained from these facilities is not readily available elsewhere.

    As discussed previously, EPA generally considers three factors when deciding whether to add an industrial sector to the scope of the industrial sectors covered by TRI:

    1. Chemical Factor—Whether one or more toxic chemicals are reasonably anticipated to be present at facilities within the candidate industry group.

    2. Activity Factor—Whether facilities within the candidate industry group “manufacture,” “process,” or “otherwise use” these toxic chemicals.

    3. Information Factor—Whether facilities within the candidate industry group can reasonably be anticipated to increase the information made available pursuant to EPCRA section 313, or otherwise further the purposes of EPCRA section 313.

    NGP facilities meet these three factors:

    Chemical and Activity factors: TRI-listed chemicals are present at NGP facilities (Ref. 2). Using information from Canada's National Pollutant Release Inventory (NPRI), a program analogous to TRI that already covers NGP facilities, EPA estimates that NGP facilities in the U.S. manufacture, process, or otherwise use more than 21 different TRI-listed chemicals (Ref. 2). These chemicals include n-hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol (Ref. 2).

    Information factor: EPA estimates that between 282 and 444 NGP facilities in the U.S. would meet the TRI employee threshold (10 full-time employees or equivalent) and manufacture, process, or otherwise use at least one TRI-listed chemical in excess of applicable threshold quantities (Ref. 2). Furthermore, based upon information submitted to Canada's NPRI and the 2012 EIA-757 survey of NGP facilities, EPA expects that TRI reporting by U.S. NGP facilities would provide significant release and waste management data (Ref. 2). Therefore, the addition of NGP facilities to TRI would meaningfully increase the information available to the public and further the purposes of EPCRA section 313.

    B. Scope of Proposed Addition

    NGP facilities are stationary surface facilities that receive gas from a gathering system that supplies raw natural gas from many nearby wells. These facilities prepare natural gas (composed primarily of methane) to industrial or pipeline specifications and extract heavier liquid hydrocarbons from the raw or field natural gas. During this process, natural gas liquids (NGLs) (i.e., heavier hydrocarbons than methane) and contaminants (e.g., hydrogen sulfide, carbon dioxide, and nitrogen) are separated from the natural gas stream, resulting in processed pipeline quality natural gas. NGLs are fractionated on-site into isolated streams (e.g., ethane, propane, butanes, natural gasoline) or shipped off-site for subsequent fractionation or other processing. Hydrogen sulfide is often either disposed through underground injection or reacted into sulfuric acid or elemental sulfur, while carbon dioxide and nitrogen may be emitted to the atmosphere. The processed pipeline-quality natural gas is then transferred to consumers via intra- and inter-state pipeline networks. NGLs are primarily used as feedstocks by petrochemical manufacturers or refineries.

    SIC 1321 (Natural Gas Liquids) and NAICS 211112 (Natural Gas Liquid Extraction) comprise establishments that recover liquid hydrocarbons from oil and gas field gases (see discussion in Unit II.E.). NAICS 211112 includes facilities that primarily recover sulfur from natural gas—such facilities already report TRI data to EPA because they are in SIC 2819 (Industrial Inorganic Chemicals, Not Otherwise Classified), which is a manufacturing sector already covered by TRI.

    Current regulations only require NAICS 211112 facilities that recover sulfur from natural gas to report TRI data (i.e., facilities in SIC 2819). Specifically, 40 CFR 372.23(b), which covers NAICS codes that correspond to SIC codes 20 through 39, lists NAICS 211112, but states: “Limited to facilities that recover sulfur from natural gas (previously classified under SIC 2819, Industrial Inorganic chemicals, NEC (recovering sulfur from natural gas)).” Removing that limitation and adding SIC 1321 to the scope of industry sectors covered by TRI would expand TRI coverage to include all NGP facilities that meet TRI-reporting thresholds.

    To add the facilities contemplated by this proposed rule to the scope of industrial sectors that TRI covers, EPA is proposing to:

    • Add SIC code 1321 to 40 CFR 372.23(a);

    • Remove the “Exceptions and/or limitations” language from the Code of Federal Regulations (CFR) text for NAICS code 211112 for NAICs codes that correspond to SIC codes 20 through 39 in 40 CFR 372.23(b); and

    • Add NAICS code 211112 to the CFR text for NAICS codes that correspond to SIC codes other than SIC codes 20 through 39 in 40 CFR 372.23(c).

    It would be necessary to list NAICS 211112 in both subsections (b) and (c) of 40 CFR 372.23 for two reasons: (1) 40 CFR 372.23(b) lists NAICS codes that crosswalk to SIC codes within the original scope of TRI sectors subject to Section 313 reporting (SIC Codes 20-39), and (2) 40 CFR 372.23(c) lists NAICS codes that crosswalk to SIC codes not within the original scope of TRI sectors. Because NAICS 211112 includes a SIC code in the original scope of TRI sectors (SIC 2819) and a SIC code not in the original scope of TRI sectors (SIC 1321), EPA proposes that NAICS 211112 be listed under both subsections to provide additional clarity for the crosswalk.

    This proposal does not seek to add to TRI coverage natural gas field facilities that only recover condensate from a stream of natural gas, lease separation facilities that separate condensate from natural gas, or natural gas pipeline compressor stations that supply energy to move gas through transmission or distribution lines into storage. Additional examples of operations that this proposal does not intend to add to TRI coverage include Joule-Thompson valves, dew point depression valves, and isolated or standalone Joule-Thompson skids. The industrial operations described in this paragraph often occur at or close to extraction sites and are typically classified under NAICS codes other than 211112 (e.g., NAICS 211111 (Crude Petroleum and Natural Gas Extraction)), and thus are not within the scope of the proposed NAICS code addition.

    However, the term “facility” is defined by EPCRA section 329(4) as “all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person).” 42 U.S.C. 11049(4). Accordingly, operations described in the previous paragraph could be part of a single “facility” with TRI reporting and recordkeeping requirements if they are contiguous or adjacent to “buildings, equipment, structures, and other stationary items” with a common owner or operator that are in a covered TRI industrial sector.

    C. How do recent updates to NAICS codes impact this proposal?

    Every 5 years the OMB updates the NAICS codes to “clarify existing industry definitions and content, recognize new and emerging industries, and correct errors and omissions.” (80 FR 46480, August 4, 2015). EPA updates its TRI regulations to align with OMB revisions to the NAICS codes (see, e.g., 78 FR 42875, July 18, 2013). OMB published a “Notice of Solicitation of Comments on the Economic Classification Policy Committee's Recommendations for the 2017 Revision of the North American Industry Classification System” on August 4, 2015 (80 FR 46480), and published a Notice of Final Decision revising the NAICS codes “for reference years beginning on or after January 1, 2017” on August 8, 2016 (81 FR 52584). As noted in Unit II.D., EPA anticipates promulgating a separate rule to align the list of NAICS codes TRI uses to the OMB NAICS revisions for 2017.

    In OMB's revisions for the 2017 NAICS codes, facilities performing activities involving natural gas that currently classify under NAICS 211111 (Crude Petroleum and Natural Gas Extraction) and NAICS 211112 (Natural Gas Liquid Extraction) will classify under a new NAICS code: 211130 (Natural Gas Extraction).

    This proposed rule to add NGP facilities to the scope of the TRI proposes to add facilities that primarily engage in the recovery of liquid hydrocarbons from oil and gas field gases (and to retain facilities that primarily engage in sulfur recovery from natural gas, which are already covered facilities), as described in Unit IV.A. This proposed rule would accomplish this, based on the 2012 NAICS codes currently used by the TRI regulations, by adding SIC code 1321 to 40 CFR 372.23(a), removing the “exceptions and/or limitations” from NAICS code 211112 currently found in 40 CFR 372.23(b), and adding NAICS code 211112 to 40 CFR 372.23(c). If EPA updates the NAICS codes used for TRI reporting purposes to align with the OMB revisions for 2017 before EPA issues a final rule adding NGP facilities to TRI, then if EPA issues a final rule adding NGP facilities to TRI, that final rule will reflect the appropriate new NAICS code (i.e., NAICS 211130), qualified by any appropriate “exceptions and/or limitations,” to add NGP facilities, as described in Unit IV.A., and would incorporate changes, if any, to the proposed scope of the addition, as appropriate in light of comments received on the proposal. That is, the actual scope of the addition to TRI here being proposed would not be affected by the 2017 OMB NAICS revision, or by any EPA update of its TRI regulations to align with the 2017 OMB revision.

    V. References

    The following is a listing of the documents that are specifically referenced in this document. For assistance in locating reference documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT.

    1. USEPA. Formal Response to October, 24, 2012, Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Classification Code 13, to the List of Facilities Required to Report under Section 313 of the Emergency Planning and Community Right-to-Know Act. October 22, 2015.

    2. USEPA, OPPT. Economic Analysis of the Proposed Addition of Natural Gas Processing Facilities to the Toxics Release Inventory. August 11, 2016.

    3. USEPA, OPPT. Supporting Statement for an Information Collection Request (ICR) Under the Paperwork Reduction Act (PRA). Proposed Rule ICR; Addition of Natural Gas Processing Facilities to the Toxics Release Inventory (TRI). EPA ICR No. 2560.01; OMB Control No. 2070-[NEW]. November 2016.

    VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). EPA prepared an economic analysis of the potential costs and benefits associated with this action, which is available in the docket (Ref. 2).

    B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR No. 2560.01; OMB Control No. 2070-[NEW] (Ref. 3). You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

    This action would impose an incremental information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2025-0009 and 2050-0078. This proposal would not alter the reporting and recordkeeping requirements for facilities that currently have regulatory requirements related to TRI reporting. However, this proposal would require all facilities that classify under NAICS 211112 to consider TRI reporting requirements regardless of whether or not they primarily recover sulfur from natural gas. Accordingly, if EPA adds this industrial sector to the scope of industries covered by TRI, these facilities would need to adhere to reporting and recordkeeping requirements should they trigger TRI reporting.

    Currently, the facilities subject to the reporting requirements under EPCRA 313 and PPA 6607 may use either the EPA Toxic Chemicals Release Inventory Form R (EPA Form 1B9350- 1), or the EPA Toxic Chemicals Release Inventory Form A (EPA Form 1B9350- 2). The Form R must be completed if a facility manufactures, processes, or otherwise uses any listed chemical above threshold quantities and meets certain other criteria. For the Form A, EPA established an alternative threshold for facilities with low annual reportable amounts of a listed toxic chemical. A facility that meets the appropriate reporting thresholds, but estimates that the total annual reportable amount of the chemical does not exceed 500 pounds per year, can take advantage of an alternative manufacture, process, or otherwise use threshold of 1 million pounds per year of the chemical, provided that certain conditions are met, and submit the Form A instead of the Form R. In addition, respondents may designate the specific chemical identity of a substance as a trade secret pursuant to EPCRA section 322, 42 U.S.C. 11042, 40 CFR part 350.

    OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control number 2025-0009 (EPA Information Collection Request (ICR) No. 1363) and those related to trade secret designations under OMB Control number 2050-0078 (EPA ICR No. 1428). As provided in 5 CFR 1320.5(b) and 1320.6(a), an Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers relevant to EPA's regulations are listed in 40 CFR part 9, and displayed on the information collection instruments (e.g., forms, instructions).

    Respondents/affected entities: Entities potentially affected by this ICR include facilities primarily engaged in natural gas processing.

    Respondent's obligation to respond: Respondents are obligated to respond or report to EPA (42 U.S.C. 11023).

    Estimated number of respondents: 282-444.

    Frequency of response: Annually.

    Total estimated burden: Up to 250,034 hours in the first year and up to 119,064 hours every subsequent year. Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: Up to $13,584,347 in the first year and up to $6,468,747 every subsequent year, includes $0 annualized capital or operation & maintenance costs.

    Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than February 6, 2017.

    EPA will respond to any ICR-related comments in the final rule.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. The small entities subject to the requirements of this action are natural gas processing facilities. The Agency has linked the 282-444 facilities estimated to be impacted by this action to 76-90 parent entities, 32-41 of which qualify as small businesses as defined by the RFA (Ref. 2). No small governments or small organizations are expected to be affected by this action. All 32-41 small businesses that would be affected by this action are estimated to incur annualized cost impacts of less than 1%. EPA's detailed analysis of the impacts on small entities is located in the EPA economic analysis (Ref. 2).

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. EPA's economic analysis indicates that the total industry reporting and recordkeeping burden for collecting this information would be between $8,624,018 and $13,584,347 in the first year (Ref. 2). In subsequent years, the total industry reporting and recordkeeping burden for collecting this information is estimated to be between $4,106,642 and $6,468,747 (Ref. 2). The total annualized cost of the proposed rule to industry and EPA is estimated to be approximately $4,634,000 to $7,300,000 with a 3% discount rate and approximately $4,721,000 to $7,437,000 with a 7% discount rate (Ref. 2). EPA's analysis shows that no small government owns or operates an NGP facility that would report under EPCRA section 313.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because 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.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because this action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. No facilities owned or operated by tribal governments are expected to classify under SIC 1321 or NAICS 211112.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. NGP facilities would be subject to the requirements of this proposal; however, this proposal would not impact how these facilities operate but rather would require facilities that trigger TRI reporting requirements to submit annual reports on chemicals for which they trigger reporting requirements. Moreover, the impact this action could cause is minor. EPA's economic analysis for this action indicates that all entities that would be impacted are estimated to incur annualized cost impacts of less than 1% (Ref. 2).

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve any technical standards, and is therefore not subject to considerations under NTTAA section 12(d), 15 U.S.C. 272 note.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    This action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not address any human health or environmental risks and does not affect the level of protection provided to human health or the environment. This action adds an industry sector to the EPCRA section 313 reporting requirements. By adding an industry to the list of industry sectors subject to reporting under EPCRA section 313, EPA would be providing communities across the U.S. (including minority populations and low income populations) with access to data which they may use to seek lower exposures and consequently reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the informational benefits of the action will have a positive impact on the human health and environmental impacts of minority populations, low-income populations, and indigenous peoples.

    List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, reporting and recordkeeping requirements, and Toxic chemicals.

    Dated: December 27, 2016. Gina McCarthy, Administrator.

    Therefore, it is proposed that 40 CFR part 372, be amended as follows:

    PART 372—[AMENDED] 1. The authority citation for part 372 continues to read as follows: Authority:

    42 U.S.C. 11023 and 11048.

    2. Amend § 372.23 by: a. In paragraph (a) adding alphabetically an entry for “1321”; b. In paragraph (b) removing “211112—Natural Gas Liquid Extraction” from the table; c. In paragraph (c) adding alphabetically an entry for “211112- Natural Gas Liquid Extraction”.

    The additions to read as follows:

    § 372.23 SIC and NAICS codes to which this Part applies.

    (a) * * *

    Major group or industry code Exceptions and/or limitations *         *         *         *         *         *         * 1321 *         *         *         *         *         *         *

    (c) * * *

    Subsector code or industry code Exceptions and/or limitations *         *         *         *         *         *         * 211112—Natural Gas Liquid Extraction *         *         *         *         *         *         *
    [FR Doc. 2016-31921 Filed 1-5-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0119; FXES11130900000 178 FF09E42000] RIN 1018-BB87 Endangered and Threatened Wildlife and Plants; Removing Eriogonum gypsophilum 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:

    Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove Eriogonum gypsophilum (gypsum wild-buckwheat) from the Federal List of Endangered and Threatened Plants (List) due to recovery. This determination is based on thoroughly reviewing the best scientific and commercial data available, which indicates the species has recovered and no longer meets the Act's endangered or threatened definitions. We are seeking information, data and public comments on this proposed rule. This document also serves as our 12-month finding on a petition to remove Eriogonum gypsophilum (gypsum wild-buckwheat) from the Federal List of Endangered and Threatened Plants.

    DATES:

    To ensure we can consider your comments on this proposed rule, they must be received or postmarked on or before March 7, 2017. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Time on this date. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by February 21, 2017.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0119, 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 “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2016-0119; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 220411-3803.

    We request that you send 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 Information Requested, below, for more information).

    Copies of Documents: This proposed rule and supporting documents are available on http://www.regulations.gov. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the New Mexico Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone 505-346-2525.

    FOR FURTHER INFORMATION CONTACT:

    Wally Murphy, Field Supervisor, New Mexico Ecological Services Field Office (see ADDRESSES); telephone 505-346-2525; facsimile 505-346-2542. If you use a telecommunications device for the deaf (TDD), please call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Information Requested

    Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and will be as accurate as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain their basis. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:

    (1) New information concerning Eriogonum gypsophilum's general conservation status;

    (2) New information on historical and current Eriogonum gypsophilum status, range, distribution, and population size, including any additional population locations, and;

    (3) New information regarding Eriogonum gypsophilum life history, ecology and habitat use.

    Please note that submissions merely stating support for, or opposition to, the action being considered, without providing supporting information, although noted, will not be considered in making a determination, as the Act (16 U.S.C. 1531 et seq.) section 4(b)(1)(A) 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.”

    Prior to issuing a final rule on this proposed action, we will consider all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.

    You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We will not consider comments sent by email, fax, or to an address not listed in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. Please note that comments posted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

    If you mail or hand-deliver hardcopy comments that include personal identifying information, 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. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

    In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:

    (1) You can view them on http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0119, which is the docket number for this rulemaking.

    (2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's New Mexico Ecological Services Field Office (see ADDRESSES).

    Public Hearing

    The Act, Section 4(b)(5)(E) enables 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 hearing locations, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

    Background

    Section 4(b)(3)(B) (16 U.S.C. 1531 et seq.) of the Act requires that any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants must contain substantial scientific or commercial information that the petitioned action may be warranted. We must make a finding within 12 months of petition receipt. In this finding, we will determine that the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted, but immediate regulation proposal implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants.

    Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register. This document: (1) Serves as our 12-month warranted finding on a July 16, 2012, petition dated July 12, 2012, from New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that we “delist” Eriogonum gypsophilum (that is, remove Eriogonum gypsophilum from the List of Endangered and Threatened Plants (List)) under the Act; and (2) proposes to remove Eriogonum gypsophilum from the List due to recovery.

    Previous Federal Actions

    Eriogonum gypsophilum was listed on January 19, 1981, as a threatened species (46 FR 5730). When the species was listed, an area that covered 95 percent of the only known population, now known as the Seven Rivers Hills population, was designated as critical habitat (46 FR 5730; January 19, 1981). The written critical habitat description listed two section numbers in the correct township but incorrect ranges. The accompanying map correctly demonstrated the designated lands. On December 21, 1984, we published a correction to the written critical habitat description (49 FR 49639). However, that correction was also incorrect because the range descriptions did not accurately describe the designated critical habitat displayed on the accompanying map. The correct written description should read T20S R25E Section 24: N1/2 NE1/4, N1/2 S1/2 NE1/4, NE1/4 NW1/4, N1/2 SE1/4 NW1/4;; and T20S R26E Section 19: N1/2, N1/2 NE1/4 SE1/4, N1/2 NW1/4 SE1/4; gypsum soils.

    On February 2, 2005, we initiated a Eriogonum gypsophilum 5-year review (70 FR 5460). On November 9, 2007, we completed a 5-year review, which recommended Eriogonum gypsophilum be delisted. The 2007 5-year review noted that Eriogonum gypsophilum threats identified at the time of listing and in the recovery plan were no longer deemed significant and that two new populations, of between 11,000 and 18,000 plants each, were discovered.

    On July 16, 2012, we received a petition dated July 12, 2012, from New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that we delist Eriogonum gypsophilum and other species, under the Act. The petitioners' request to delist Eriogonum gypsophilum was based entirely upon the scientific and commercial information contained within our 2007 5-year review.

    On May 31, 2013, we received a complaint from the same petitioners alleging we failed to make a 90-day finding on the petition.

    On September 9, 2013, we published a 90-day finding (78 FR 55046) that delisting Eriogonum gypsophilum may be warranted. This 90-day finding also announced our initiation of an Eriogonum gypsophilum 5-year review. Following this 90-day finding, the parties agreed to a stipulated dismissal of the pending lawsuit.

    On November 20, 2015, the petitioners filed a second lawsuit. This lawsuit sought to compel the Service to complete a 12-month finding regarding Eriogonum gypsophilum, and other species.

    On November 4, 2016, we completed our second Eriogonum gypsophilum 5-year review, which also recommended delisting due to recovery. The 2016 five-year review supports this proposed rule. The review concluded that the threats identified at the time of listing and in the recovery plan are no longer deemed significant. In addition, two new populations have been discovered since the listing, thus exceeding the recovery plan's population goals.

    Species Information Species Description

    Eriogonum gypsophilum is a rare, regionally endemic plant species presently known to occur in three populations in Eddy County in southeastern New Mexico. Eriogonum gypsophilum was first collected by Wooten and Standley in 1909, on a hill southwest of Lakewood, New Mexico (Wooten and Standley, 1913). It is a small, erect herbaceous perennial, a member of the knotweed family, and measures about 8 inches high.

    Distribution

    Three Eriogonum gypsophilum populations are known and all are located in Eddy County, southeastern New Mexico. Only one population (Seven Rivers Hills) was known at the time of listing and recovery plan development. After Eriogonum gypsophilum was listed as threatened, other suitable habitats were surveyed and two additional populations were found in 1985. Eriogonum gypsophilum distribution within its populations is patchy and follows suitable gypsum outcrops geographic patterns, which are generally elongated and narrow. The occupied outcrops are approximately 2.7 kilometers (km) (1.7 miles (mi)) long for the Seven Rivers Hills population, 1.6 km (1 mi) long for the Black River population, and 3.5 km (2.2 mi) long for the Ben Slaughter Draw population. Eriogonum gypsophilum patches within populations are also relatively small. The occupied habitat is only 16.3 hectares (ha) (40.3 acres (ac)) at Seven Rivers Hills, little more than 11.9 ha (29.5 ac) at Black River, and 66.4 ha (164.1 acres) at Ben Slaughter Draw (including Hay Hollow). Therefore, this species occupies an approximate total range wide habitat of 94.7 ha (233.9 ac) (Sivinski 2005, p. 6; Sivinski 2013, p. 1).

    A population of Eriogonum gypsophilum was previously reported near Hay Hollow by Knight (1993, p. 34) and then discounted following negative surveys (Sivinski 2000; pp. 2-3). In 2013, Sivinski rediscovered this population, considered an extension of the Ben Slaughter population, and he estimated 1,000 to 1,500 plants across less than 4 ha (10 ac) (Sivinski 2013, p. 1).

    Habitat

    Eriogonum gypsophilum occupies Permian-age Castile Formation gypsum soils and gypsum outcrops. These habitats are dry and nearly barren except for common of gypsophilic (gypsum-loving) plant species, including Eriogonum gypsophilum, hairy crinklemat (Tiquilia hispidissima), gypsum blazingstar (Mentzelia humilis), and Pecos gypsum ringstem (Anulocaulis leiosolenus var. gypsogenus) (NMRPTC 2015, http://nmrareplants.unm.edu).

    Biology

    Eriogonum gypsophilum is a perennial species that reproduces both by producing seed and asexually by producing clone rosettes from rhizomes or root-sprouts. Seed production has been observed (Spellenberg 1977, p. 22), but seedlings are rarely seen and most propagation occurs by asexual reproduction, or during infrequent climatic episodes suitable for seed germination and seedling establishment (Spellenberg 1977, p. 31; Knight 1993, p. 25). Densities within Eriogonum gypsophilum patches range from 0.03 to 2.04 individual rosettes per square meter (m2) (0.003 to 0.19 per square feet (ft2)) (Knight 1993, pp. 28-32). Plant densities within three monitoring plots at the Seven Rivers Hills population indicated a slight increase from 1987 to 1993 (Knight 1993, p. 28).

    Five Factors Information Summary

    Section 4 (16 U.S.C. 1533) of the Act and implementing regulations (50 CFR part 424) set forth procedures to add species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under Section 4(a)(1) of the Act, a species may be determined endangered or threatened based on any of the following five factors, acting alone or in combination:

    (A) The present or threatened habitat or range destruction, modification or curtailment;

    (B) Commercial, recreational, scientific, or educational overutilization;

    (C) Disease or predation;

    (D) Inadequate regulatory mechanisms; or

    (E) Other natural or manmade factors affecting its continued existence.

    When delisting a species, we must consider both these five factors and how conservation actions have removed or reduced the threats. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate 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; or

    (3) The original scientific data used at the time the species was classified were erroneous.

    In making this finding, Eriogonum gypsophilum five factors information provided in the Act, Section 4(a)(1), is discussed below. In considering what factors might constitute threats, we must look beyond mere species exposure to the factor to determine whether the species responds to the factor in a way that causes actual species impacts. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine if that factor rises to threat level, meaning that it may drive or contribute to species extinction risk such that the species warrants listing as an endangered or threatened species as the Act defines those terms. This does not necessarily require empirical threat proof. Combining exposure and some corroborating evidence indicating how the species is likely impacted could suffice. Merely identifying 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 or threatened species under the Act.

    In making our 12-month finding on the petition, we considered and evaluated the best available scientific and commercial information.

    The 1981 Eriogonum gypsophilum threatened status listing determination (46 FR 5730; January 19, 1981) cited off-road vehicles (ORVs), grazing, and Brantley Dam project impacts as potential species threats. At the time of listing, the Seven Rivers Hills population was the only known Eriogonum gypsophilum population. Losing any plants or habitat from the only known population would have been considered a significant loss at that time, making the species vulnerable to extinction in the near future. However, two additional Eriogonum gypsophilum populations have since been documented at Black River and Ben Slaughter Draw, and have been included in this species reassessment. With the discovery of two additional populations and subsequent increase in species redundancy, combined with the Federal resource management practices implemented since the time of listing (see discussion below), the threats identified at the time of listing and in the recovery plan are no longer considered significant for Eriogonum gypsophilum.

    Factor A. The Present or Threatened Habitat or Range Destruction, Modification or Curtailment

    All Eriogonum gypsophilum habitat occurs in areas with high potential for mineral extraction and associated development, especially oil and gas. Although the three populations of Eriogonum gypsophilum comprise a small geographic area, making the species vulnerable to such land use changes, the majority of remaining suitable habitat is located on Federal lands managed by the Bureau of Land Management (BLM), and significant portions of each Eriogonum gypsophilum population have been designated by BLM as Special Management Areas (SMAs). By definition, SMAs are areas where specific management attention is required and can be designated to protect important resources, including special status species like Eriogonum gypsophilum. The Seven Rivers Hills SMA includes 95 percent of the Seven River Hills population of Eriogonum gypsophilum, the Black River SMA includes 50 percent of the Black River population, and the Ben Slaughter SMA includes 50 percent of the Ben Slaughter population. Potential threats to Eriogonum gypsophilum as a result of mineral extraction and oil and gas associated development, such as directly removing occupied habitat during construction or pipeline leaks impacts, have been offset by BLM's designation of significant portions of each Eriogonum gypsophilum population as an SMA. Specifically, these SMAs provide management guidance, and in the case of Eriogonum gypsophilum, do not allow surface occupancy for most surface-disturbing activities. The Bureau of Land Management has committed to keeping similar protections for special status species and sensitive soil outcrops through a revised resource management plan, which will include specific land designations and the implementation of best management practices. The Service has participated in the development of this resource management plan, and will continue to work closely with BLM throughout the implementation phase. A final resource management plan is expected to be signed by BLM in 2017. As a BLM special status species, conservation of Eriogonum gypsophilum is expected to continue into the foreseeable future as BLM manual 6840, titled Special Status Species Management, directs. BLM special status species are federally listed or proposed and Bureau sensitive species, which include both Federal candidate species and delisted species (BLM 2008, entire).

    The area designated as Eriogonum gypsophilum critical habitat at Seven Rivers Hills was given BLM SMA status in 1988 (BLM 1988, p. C-2) and protects about 95 percent of the habitat this population occupies. A few hectares of occupied habitat fall outside the SMA boundaries on adjacent BLM and Bureau of Reclamation (BOR) lands. The 1988 BLM Resource Management Plan also created a Springs Riparian Habitat SMA to restrict land use in critical riparian habitat within the Chihuahuan Desert Ecosystem. This SMA includes lands occupied by the Ben Slaughter Draw Eriogonum gypsophilum population (BLM 1988, p. C-14). The 1997 BLM Resource Management Plan Amendment included the Black River SMA that covers the Black River Eriogonum gypsophilum population (BLM 1997, pp. AP4:9, AP4:15-17). SMA management prescriptions at the three populations on public lands include:

    • Apply no surface occupancy stipulation to all future oil and gas leases.

    • Avoid future right-of-way actions through SMA area.

    • Withdraw from mining claim location, and close to mineral material disposal and solid material leasing.

    • Complete limited ORV designation and implementation plan to restrict vehicles to designated routes.

    • Restrict fire suppression and geophysical operations to comply with ORV designation.

    • Restrict surface disturbance, including plant collections and camping within the area.

    Proposed actions related to lease rights acquired prior to the SMA designations are analyzed for impacts and designed to reduce or remove the impacts under BLM Manual 6840 directions, and using conditions-of-approval on the permit. SMA guidance can also affect actions that cross both public lands and adjacent non-Federal lands (e.g., pipelines, power lines), due to the actions being connected through a Federal nexus, thus affording species conservation. The occupied habitats are relatively small in acreage and can typically be avoided by surface disturbing activities.

    Mineral Extraction and Related Activities

    All Eriogonum gypsophilum habitats are within areas with high potential for fluid minerals leasing and extraction. Oil and gas well pads, roads, and pipelines are proliferating in this region of New Mexico. The BLM SMA where the Seven Rivers Hills population's designated critical habitat occurs presently eliminates this threat by requiring “no surface occupancy” for mineral leases within the designated critical habitat. If the critical habitat designation were removed, no land use change is expected to occur as BLM has committed to continue protecting sensitive gypsum soils and the special status species that occur there, including Eriogonum gypsophilum. Roads and pipelines associated with mineral development also must avoid this area. The Seven Rivers Hills SMA protects about 95 percent of the occupied habitat from this land use. SMAs with “no surface occupancy” stipulations for oil and gas leases were also administratively placed on BLM jurisdictions containing Eriogonum gypsophilum habitats at the Black River and Ben Slaughter Draw populations in 1997 (BLM 1988, pp. C-15; BLM 1997, pp. AP4:9, AP4:15-17). These SMAs protect approximately 50 percent of the total habitat at Black River and Ben Slaughter Draw from oil and gas development (Sivinski 2005, p. 6). Approximately 65 percent of total habitat area in all three Eriogonum gypsophilum populations is presently protected from surface impacts associated with oil and gas development and these impacts would be avoided into the foreseeable future under BLM manual 6840 direction.

    Knight (1993, p. 57) concluded that oil and gas mineral development, and possibly gypsum, were the only serious potential threats to Eriogonum gypsophilum. At this time, surface disturbance associated with Federal mineral development is very unlikely to occur on Eriogonum gypsophilum habitats within the BLM SMAs. Mineral development could potentially affect nearly 50 percent of the Black River population that occurs on private or State lands. In fact, there is presently an active gas well established within 0.4 km (0.25 mi) of Eriogonum gypsophilum habitat on the State trust land portion of this population (Sivinski 2000, p. 2). The private land portion, approximately 20 percent of the Black River population, could also be impacted by future minerals development. However, approximately 50 percent of the Black River habitat, about 95 percent of the Seven Rivers Hills habitat, and approximately 50 percent of Ben Slaughter Draw habitats are protected by the BLM SMAs “no surface occupancy” stipulation (Sivinski 2005, p. 6). Oil and gas may be leased on these lands, but must be extracted by directional drilling from outside the SMAs. Directional drilling allows a company to develop fluid minerals without being directly above (vertical of) the target, meaning this technology affords greater avoidance options to conserve sensitive habitats. The SMAs require that road and pipeline rights-of-way associated with oil and gas development must also avoid SMA disturbance.

    The Seven Rivers Hills and Ben Slaughter Draw SMAs also withdrew minerals, such as gypsum, sulfur, and salts, from claim and mine development, but mineral claims are not specifically withdrawn from the Black River SMA. Chemical analysis found the gypsum outcrops Eriogonum gypsophilum occupied to be from the Castile Formation, composed of 85 percent hydric gypsum, which is suitable quality for mining (Weber and Kottlowski 1959, p. 52; Knight 1993, p. 42). However, gypsum mining potential for the Castile formation is low because of large deposits of higher quality gypsum presently being mined elsewhere in New Mexico (Knight 1993, p. 42).

    Other potential impacts to the Seven Rivers Hills Eriogonum gypsophilum population have not occurred, partly due to the Act's protections. Due to the species occurring in three geographically separate populations, there is a lesser potential of a single project affecting the entire population of Eriogonum gypsophilum. For example, U.S. Highway 285 widening was accomplished without impacting the plants in or near this right-of-way (Sivinski 2000, pp. 1-2) and would have only affected one of the three populations. Common land use activities, such as mineral development or livestock grazing, are addressed in the BLM resource management plan and would be managed through the BLM permitting process, which considers all sensitive species and their habitats.

    Reservoir Development and Flooding

    The populations at Black River and Ben Slaughter Draw are not near any existing or proposed reservoirs and, therefore, are not threatened by flooding. At the time of listing, we considered the possibility of flooding to the Seven Rivers Hills population from the Brantley Reservoir. However, this impact has not occurred because the dam spillway does not allow the water level to rise to the level necessary to flood populations (BOR 2009, p. 2). The spillway elevation is 993.5 meters (m) (3,259.5 feet (ft)) mean sea level. Water level peaked on March 29, 2015 (U.S. Geological Survey 2016, http://waterdata.usgs.gov), at approximately 4.0 m (13 ft) above the spillway at 997.5 m (3,272.5 ft) elevation. Even at this highest level, the pool remained east of U.S. Highway 285 and the Eriogonum gypsophilum population. Knight (1993, pp. 53-54) analyzed potential Brantley Reservoir impacts reaching the maximum flood pool with the assumption that the water level would rise similarly across U.S. Highway 285. Under this assumption, the maximum flood event pool in Brantley Reservoir could temporarily flood a few hectares of Eriogonum gypsophilum habitat. He found eight Eriogonum gypsophilum plants at or below the 1,002.8 m (3,290 ft) level on the west side of U.S. Highway 285. The soils in this area would become saturated for a time after a flood and could potentially be invaded by salt cedar (Tamarix spp.), an invasive tree that often lines reservoir banks. Knight (1993, pp. 53-54) surveyed another 6 m (20 ft) vertical up to the 1,009 m (3,310 ft) level where salt cedar might become established and located an additional 44 Eriogonum gypsophilum plants. In 1993, 52 plants were in the hypothetical maximum flood impact zone. A flood event could potentially impact about 100 plants in this population of several thousand plants. However, at the highest water level recorded in 2015, which was at the maximum safe flood control level, the water did not reach U.S. Highway 285 and Eriogonum gypsophilum was not impacted. Therefore, flooding from the Brantley Reservoir is not a significant threat to Eriogonum gypsophilum.

    Off-road Vehicle (ORV) Use

    ORV traffic is not presently an Eriogonum gypsophilum threat. Little to no ORV traffic evidence has been observed in recent years in any of the three Eriogonum gypsophilum populations (Knight 1993, pp. 52-53; Sivinski 2000, p. 2; Chopp 2016, p. 1). ORV traffic absence at the Black River and Ben Slaughter Draw SMAs may be attributed to their remote locations and stands of thorny mesquite shrubs surrounding the Eriogonum gypsophilum populations (Knight 1993, p. 53). BLM has established SMA restrictions for ORV traffic that protect 95 percent of the Seven Rivers Hills habitat and 50 percent of the Ben Slaughter Draw habitat from this potential impact. These SMA restrictions cannot eliminate occasional ORV violations, but severe impacts from frequent ORV use will not likely be tolerated by BLM. These protections are likely to continue into the future due to protections described in the resource management plan and BLM manual 6840, which is the principal policy instrument detailing BLM management of special status species (BLM 2008, entire). To prevent unauthorized ORV traffic, in 2010, BLM installed pipe-rail fencing along portions of existing roads and trails at all three known populations, which will continue to be maintained as a condition of the revised resource management plan (BLM 2010, entire). Fencing was not installed at the Ben Slaughter Draw population Hay Hollow portion, but there are no easy access routes to this area (Chopp 2016, p. 1). Therefore, there is little to no ORV threat at this site now or in the foreseeable future.

    Livestock Grazing

    Livestock grazing is the predominant land use in all Eriogonum gypsophilum habitats. Cattle will not usually eat Eriogonum gypsophilum plants, and grazing does not appear to have a negative effect (Sivinski 2000, p. 2). Forage production on these gypsum outcrops is relatively low and does not attract or concentrate livestock. The Eriogonum gypsophilum recovery plan did not identify livestock grazing as a serious potential designated critical habitat threat at Seven Rivers Hills (Service 1984, entire).

    Livestock using the habitat in the Black River population has little effect on Eriogonum gypsophilum, and the river is remote enough from the gypsum outcrop to preclude concentrated livestock activity (Knight 1993, p. 52; Sivinski 2000, p. 2).

    The Brantley Dam conservation pool was anticipated to be in close proximity to the Seven Rivers Hills Eriogonum gypsophilum population such that it was expected to concentrate livestock that could trample plants and make erosion-prone trails through this habitat. Over the past 30 years, the actual conservation pool has remained more than 1.6 km (1 mi) away from this population, and livestock have not concentrated in this habitat.

    The Ben Slaughter population is immediately adjacent to Ben Slaughter Spring and Jumping Spring, which are water sources that concentrate livestock use. Livestock trailing and trampling Eriogonum gypsophilum plants in this population has been reported by Knight (1993, p. 52), especially in the Ben Slaughter Spring immediate vicinity. Knight (1993, p. 54) observed that plants trampled by livestock tended to produce smaller rosettes than plants not affected, thus shifting that population portion towards higher juvenile form percentages. The Bureau of Land Management has partly mitigated this impact by erecting a livestock-proof fence that encloses 8 ha (20 ac) around Ben Slaughter Spring, including a few hectares of Eriogonum gypsophilum habitat with several hundred plants. This fenced enclosure occurs within the 146-ha (360-ac) BLM SMA that protects the spring and surrounding upland from land-use surface occupancy. The Bureau of Land Management enclosure gate is not always closed to livestock entry (Sivinski 2000, p. 2), but does give the opportunity to manage grazing effects.

    All three Eriogonum gypsophilum populations occur near, or within a few kilometers, of permanent natural waters sources. Therefore, the habitats at these populations have experienced more than a century of livestock use that, at times, could have been very intense and aggressive. In fact, the recent heavy livestock concentrations within the Ben Slaughter Draw population have not likely exceeded the livestock amounts concentrated in this area for many decades. These gypsum outcrop habitats may have been modified by this long history of livestock use, but continue to support large species populations. More than 75 percent of the Eriogonum gypsophilum habitats occur on BLM lands. Currently, BLM livestock stocking rates appear to have little, or no, impact on the Seven Rivers Hills and Black River populations. It is also evident that heavy livestock concentrations at Ben Slaughter Draw have not caused the population to decline. It is unlikely that livestock grazing will become a serious species threat in most of its habitats, especially at the Seven Rivers Hills and Black River populations, now or in the foreseeable future.

    Factor B. Commercial, Recreational, Scientific, or Educational Overutilization

    There are no immediate threats from commercial or recreational Eriogonum gypsophilum collection . The species has no recreational value, and it is not offered for sale within the horticultural market at this time. It is a handsome plant, with early-season green stems that turn dark red after hoisting bright yellow flowers, which could attract rock garden hobbyists, but may not be suitable for non-gypseous garden soils. Scientific collection permits have been confined to a few vouchered specimens to document new species locations.

    In addition to alleviating threats, positive steps have been taken to inform and educate the public about Eriogonum gypsophilum. The New Mexico Rare Plants Web site was established in 1998 by the New Mexico Rare Plant Technical Council (NMRPTC) to provide information to the public on rare, threatened and endangered plant species (NMRPTC 2015, http://nmrareplants.unm.edu). This Web site prominently displays descriptive Eriogonum gypsophilum information and illustrations. This effort has helped fulfill the intent to provide information to the public and foster Eriogonum gypsophilum conservation support.

    Factor C. Disease or Predation

    There are no known documented or anecdotal Eriogonum gypsophilum disease or predation reports.

    Factor D. Inadequate Existing Regulatory Mechanisms

    Federal regulatory mechanisms have been effective in removing or managing many Eriogonum gypsophilum threats that could threaten extinction now or in the foreseeable future. The previously identified threats are nearly identical between the three populations, and all three populations include Federal and non-Federal lands. The SMAs afford conservation on Federal lands and adjacent non-Federal lands for linear projects such as roads and pipelines. Using the SMA designations, BLM has successfully protected the designated critical habitat at Seven Rivers Hills from mineral development and ORV traffic. BLM also regulates and manages livestock grazing on significant portions of all three of the known populations. These areas will continue to be conserved through implementation of BLM's revised resource management plan.

    ORV traffic prohibitions are difficult to enforce because of sign vandalism, for which law enforcement officers cannot keep a continuous watch. However, BLM SMA restrictions on ORV traffic at the Seven Rivers Hills designated critical habitat area and Ben Slaughter Draw appear to be effective at diminishing ORV impacts. BLM further committed its authority by restricting access to the occupied Eriogonum gypsophilum habitat by installing protective pipe-rail fences above and beyond the SMA description's land use restrictions.

    The Bureau of Land Management SMA at the Black River population requires a “no surface occupancy” stipulation for all oil and gas leases, but does not have prescriptions to protect this area from mineral claims or ORV traffic. All three Eriogonum gypsophilum SMA designations in the BLM Resource Management Plan will remain in effect for the life of that plan and are likely to continue for any future amendments.

    The Carlsbad Resource Management Plan does not clearly state that future plan revisions shall continue to maintain Eriogonum gypsophilum SMA restrictions if this species is removed from the List. However, due to the species only occurring in gypsum outcrops, which are regarded as a unique resource by BLM, it is expected that BLM would continue to protect this habitat and, therefore, Eriogonum gypsophilum in their new resource management plan (BLM 2015, p. 1).

    A few hectares of Eriogonum gypsophilum habitat in the Seven Rivers Hills population occur on BLM land outside the designated SMA and on Federal land in BOR jurisdiction, which is also not within the SMA. Land uses that may affect Eriogonum gypsophilum on these lands must presently be reviewed by the Service. Protections afforded by this review would cease if Eriogonum gypsophilum is removed from the List. However, BLM's current resource management plan would continue to provide species protections. The Bureau of Land Management has committed to continuing these land use restrictions in its revised resource management plan to provide species and habitat conservation in the foreseeable future.

    There are no regulatory protections for federally listed endangered and threatened plant species from surface-disturbing land uses on private or State-owned lands, unless the activity is authorized, funded, or carried out by a Federal agency. Approximately 50 percent of the Eriogonum gypsophilum gypsum habitats at the Black River population occurs on private and State-owned land. About 10 percent of the occupied habitat in the Ben Slaughter Draw population is on private and State-owned land (Sivinski 2005, p. 6). The New Mexico State Land Office is aware of the Eriogonum gypsophilum habitats on its State trust lands, and Section 75-6-1 (New Mexico Statutes Annotated 1978 of the New Mexico Administrative Code directs New Mexico's Energy, Minerals and Natural Resources Department to investigate all plant species in the state for the purpose of establishing a list of State endangered plant species. It also authorizes that department to prohibit state endangered species take, with the exception of permitted scientific collections or propagation and transplantation activities that enhance endangered species survival. Should this rule be finalized as proposed, state protections for Eriogonum gypsophilum would remain in place until the state decides to remove the plant from the list of state endangered species.

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Our previous reviews did not analyze climate change as a factor affecting the species. Based on the unequivocal evidence the earth's climate is warming from observing increasing average global air and ocean temperatures, widespread glacier and polar ice cap melting, and rising sea levels recorded by the Intergovernmental Panel on Climate Change (IPCC) Report (IPCC 2007a, entire; 2013, entire), climate change is now a factor in all Federal agency decision-making (Government Accounting Office 2007, entire). The Service has incorporated climate change into its decision-making under the Act (Service 2010, entire). Global climate information has been downscaled to our region of interest, and projected into the future under two different scenarios of possible emissions of greenhouse gases (Alder and Hostetler 2014: 2). Climate predictions for the Eriogonum gypsophilum area include a 5 to 6 percent increase in maximum temperature (up to 4 °C (7.2 °F)), 11 percent decrease in precipitation, and a 25 percent increase in evaporative deficit over the next 25 years (National Climate Change Viewer, Eddy County Data http://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp, accessed May 15, 2016). In 11 of the last 15 years, moderate to severe drought conditions existed in the Eriogonum gypsophilum occupied area, with 11 percent of the time in exceptional drought (National Drought Mitigation Center 2015, Eddy County Data) with no obvious negative effects on the species.

    Eriogonum is a highly derived taxon that has undergone rapid evolution in arid western North American regions (Reveal 2005, p. 1). We expect that due to its observable resistance to severe drought periods over the past 30 years, Eriogonum gypsophilum is adaptable to climate change, and there is no information to indicate that climate change will have a detrimental effect on the species.

    Factors A through E Cumulative Effects

    Eriogonum gypsophilum was known from only a single population on the Seven Rivers Hills when it was listed as a threatened species (46 FR 5730; January 19, 1981). An area covering 95 percent of this population was designated as critical habitat at the time of listing. Population monitoring at this site from 1987 to 2005 did not reveal any significant increase or decrease in plant numbers since the recovery plan was finalized in 1984. No surface-disturbing activities have occurred in the designated critical habitat since 1984, and this habitat remains unchanged. The Seven Rivers Hills site remained as the only known extant population until 1984. The recovery plan concluded that this threatened species could be delisted (due to recovery) when the designated critical habitat area was designated an area of critical ecological concern (ACEC), or was provided a similar special use designation. The Bureau of Land Management designated the critical habitat as a SMA in 1988, thus fulfilling this recovery plan criterion.

    Two additional populations were documented in Eddy County since this plant was listed in 1981. Plant numbers in those populations also appear relatively unchanged since their 1985 discovery; the Black River population has a minimum of 16,660 plants, and the Ben Slaughter Draw population is estimated at around 18,270 plants. Additionally, an estimated 1,000 to 1,500 plants in the Ben Slaughter Draw population were observed in 2013, at the nearby Hay Hollow location. These numbers are estimates, as it is difficult to estimate plant numbers in each population due to variable density and patchy distribution across occupied gypsum outcrops. All previous and current plant numbers estimates lack precision, but adequately demonstrate substantial populations at the three known locations. No Eriogonum gypsophilum population extirpations or obvious declines were reported since it was listed as a threatened species in 1981.

    Based on extensive survey efforts in New Mexico, it is unlikely that other new populations will be discovered. Potentially suitable habitat exists in Texas on private land, but no surveys have been conducted.

    Eriogonum gypsophilum is currently listed as threatened with designated critical habitat. Threats identified at the time of listing and in the recovery plan are no longer deemed significant. In addition, two new populations have been discovered which contain between 16,000 and 18,000 Eriogonum gypsophilum plants each. The entire known occupied habitat is distributed among three populations totaling 94 ha (239 ac). Because BLM's existing resource management plan provides protections for significant portions of all populations, that are expected to be extended in future versions, lessening the future threat of mineral and oil and gas development, there are no longer any threats that are expected to cause Eriogonum gypsophilum to be in danger of extinction now or in the foreseeable future.

    Finding

    As required by the Act, we considered the 5 factors in assessing whether Eriogonum gypsophilum is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats facing Eriogonum gypsophilum. We reviewed the petition, information available in our files, and other available published and unpublished information, in addition to consulting with recognized Eriogonum gypsophilum experts and other Federal, State, and tribal agencies. Threats identified at the time of listing and in the recovery plan are no longer significant, which can largely be attributed to current BLM land-use restrictions in occupied Eriogonum gypsophilum habitat. In addition, two new populations were discovered since the original listing decision. Each of these populations adds between 16,000 and 18,000 plants to the overall population estimate.

    Based on our reviewing the best available scientific and commercial information pertaining to the 5 factors, we find that the petitioned action to delist Eriogonum gypsophilum is warranted. There is sufficient evidence to indicate that, with ongoing BLM land-use restrictions to avoid and minimize surface-disturbing activities in occupied Eriogonum gypsophilum habitat on public lands, which are expected to continue into the foreseeable future, and no information to indicate that there are threats occurring now or in the future on private and State-owned lands, Eriogonum gypsophilum should be removed from the Federal List of Endangered and Threatened Plants.

    In making this finding, we have followed the procedures set forth in section 4(a)(1) of the Act and our regulations at 50 CFR part 424. We intend that any Eriogonum gypsophilum action be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, Native American Tribes, industry, or any other interested party concerning this finding.

    Delisting Proposal

    As noted earlier in this document, Section 4 of the Act and its implementing regulations at 50 CFR part 424, set forth the procedures for listing, reclassifying or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “species” as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate fish or wildlife population segment that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in Section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. For species that are already listed as endangered or threatened, the threat analysis must evaluate both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting (i.e., reclassifying a species from endangered to threatened) and removing or reducing 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 the species is neither endangered or 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 erroneous. We determine that Eriogonum gypsophilum should be delisted due to recovery.

    We have determined that none of the existing or potential threats is likely causing Eriogonum gypsophilum to be in danger of extinction throughout all or a significant portion of its range, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.

    The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species or threatened species, and no SPR analysis will be required. If the species is neither in danger of extinction, nor likely to become so throughout all of its range, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer warranted.

    When we conduct an SPR 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. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. 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 endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. 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 would not warrant further consideration. Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

    On the basis of our evaluation, we propose to remove Eriogonum gypsophilum from the Federal List of Endangered and Threatened Plants (50 CFR 17.12(h)).

    Effects of This Proposed Rule

    This proposal, if made final, would revise 50 CFR 17.12(h) by removing Eriogonum gypsophilum from the Federal List of Endangered and Threatened Plants. The Act's prohibitions and conservation measures, 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 Eriogonum gypsophilum. Critical habitat for the species is designated; therefore, if made final, this rule would also remove this plant's critical habitat designation at 50 CFR 17.96(a).

    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 recovered and delisted. This requirement is to develop a program that detects delisted species failures to sustain itself without the Act's protective measures. If, at any time during the monitoring period, data indicate that protective Act status should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

    We will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective Eriogonum gypsophilum post-delisting monitoring (PDM) plan.

    The PDM plan will build upon current monitoring practices. The PDM plan outlines the monitoring needed to verify that a species delisted due to recovery remains secure from extinction after the protections of the Act no longer apply. The goals of this PDM plan are to: (1) Outline the monitoring plan for species abundance and threats; and (2) identify circumstances that will trigger increased monitoring, or to identify when there are no longer concerns for Eriogonum gypsophilum and the PDM plan requirements have been fulfilled. The draft PDM plan will be made available for public comment in a Federal Register notice no later than June 30, 2017, and will be finalized concurrently with the final rule should we delist the species.

    Peer Review

    In accordance with our joint peer review policy with the National Marine Fisheries Service, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” was published in the Federal Register on July 1, 1994 (59 FR 34270), and the Office of Management and Budget's Final Information Quality Bulletin for Peer Review, dated December 16, 2004, we will seek expert opinions from at least three appropriate independent specialists regarding this proposed rule's science. Peer review's purpose is to ensure that our delisting decision is based on scientifically sound data, assumptions and analyses. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions in this proposed Eriogonum gypsophilum delisting. We will summarize the opinions of these reviewers in the final decision document, and we will consider their input and any additional information we received as part of our final decision-making process for this proposal. Such communication may lead to a final decision that differs from this proposal.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the section or paragraph numbers that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act

    We have determined that environmental assessments and environmental impact statements, as defined under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) authority, need not be prepared in connection with regulations pursuant to the Act, Section 4(a). We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of all references cited in this final rule is available at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0119, or upon request from the New Mexico Ecological Services Field Office (see ADDRESSES).

    Authors

    The primary authors of this notice are the staff members of the New Mexico Ecological Services Field Office, U.S. Fish and Wildlife Service (see ADDRESSES).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we 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; 4201-4245, unless otherwise noted.

    2. Amend § 17.12(h) by removing the entry for “Eriogonum gypsophilum” from the List of Endangered and Threatened Plants. 3. Amend § 17.96(a) by removing the critical habitat entry for “Family Polygonaceae: Eriogonum gypsophilum (Gypsum Wild Buckwheat).” Dated: December 22, 2016. Daniel M. Ashe, Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-31764 Filed 1-5-17; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0138; FXES11130900000 178 FF09E42000] RIN 1018-BB91 Endangered and Threatened Wildlife and Plants; Removal of the Lesser Long-Nosed Bat From the Federal List of Endangered and Threatened Wildlife AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule and 12-month petition finding; request for comments.

    SUMMARY:

    Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove the lesser long-nosed bat (Leptonycteris curasoae yerbabuenae) from the Federal List of Endangered and Threatened Wildlife (List) due to recovery. This determination is based on a thorough review of the best available scientific and commercial information, which indicates that the threats to this subspecies have been eliminated or reduced to the point that the subspecies has recovered and no longer meets the definition of endangered or threatened under the Act. This document also serves as the 12-month finding on a petition to reclassify this subspecies from endangered to threatened on the List. We are seeking information, data, and comments from the public on the proposed rule to remove the lesser long-nosed bat from the List.

    DATES:

    We will accept comments received or postmarked on or before March 7, 2017. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Time on this date. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section below by February 21, 2017.

    ADDRESSES:

    Written comments: You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0138, 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 “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2016-0138, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send 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 information).

    Copies of documents: This proposed rule and supporting documents, including the Species Status Assessment, are available on http://www.regulations.gov. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021.

    FOR FURTHER INFORMATION CONTACT:

    Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone (602-242-0210); or by facsimile (602-242-2513). If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Information Requested Public Comments

    Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:

    (1) New information on the historical and current status, range, distribution, and population size of lesser long-nosed bats, including the locations of any additional populations;

    (2) New information regarding the life history, ecology, and habitat use of the lesser long-nosed bat;

    (3) New information concerning the taxonomic classification and conservation status of the lesser long-nosed bat in general; and

    (4) New information related to any of the risk factors or threats to the lesser long-nosed bat identified in the Species Status Assessment or the proposed action.

    Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) 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.”

    Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.

    You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We will not consider comments sent by email, fax, or to an address not listed in ADDRESSES. 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. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. Please note that comments posted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

    If you mail or hand-deliver hardcopy comments that includes personal identifying information, 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. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

    In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:

    (1) You can view them on http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0138, which is the docket number for this rulemaking.

    (2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's Arizona 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, above. We will schedule at least one public hearing on this proposal, if any are requested, and announce the location(s) of any of hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before any hearing.

    Background Previous Federal Actions

    On September 30, 1988, we published a final rule in the Federal Register (53 FR 38456) to list the Mexican long-nosed bat (Leptonycteris nivalis) and Sanborn's long-nosed bat (Leptonycteris sanborni (=L. yerbabuenae)) as endangered species. That rule became effective on October 31, 1988, and did not include a critical habitat designation for either bat. In 1993, we amended the List by revising the entry for the Sanborn's long-nosed bat to “Bat, lesser (=Sanborn's) long-nosed” with the scientific name “Leptonycteris curasoae yerbabuenae.” We issued a recovery plan for the lesser long-nosed bat on March 4, 1997. The recovery plan has not been revised. In 2001, we again amended the List by revising the entry for the lesser long-nosed bat to remove the synonym of “Sanborn's”; the listing reads, “Bat, lesser long-nosed” and retains the scientific name “Leptonycteris curasoae yerbabuenae.” Cole and Wilson (2006) recommended that L. c. yerbabuenae be recognized as Leptonycteris yerbabuenae. Additionally, Wilson and Reeder's (2005) “Mammal Species of the World (Third Edition), an accepted standard for mammalian taxonomy, also indicates that L. yerbabuenae is a species distinct from L. curasoae. Currently, the most accepted and currently used classification for the lesser long-nosed bat is L. yerbabuenae, however, the Service continues to classify the listed entity as Leptonycteris curasoae yerbabuenae. We recommended, as part of the status review, that the Service recognize and change the taxonomic nomenclature for the lesser long-nosed bat to be consistent with the most recent classification of this species, L. yerbabuenae. However, throughout this proposed rule, we will refer to the lesser long-nosed bat as a subspecies. On August 30, 2007, we completed a 5-year review, in which the Service recommended reclassifying the species from endangered to threatened status (i.e., “downlisting”) under the Act (USFWS 2007; available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm). The reclassification recommendation was made because information generated since the listing of the lesser long-nosed bat indicated that the subspecies is not in imminent danger of extinction throughout all or a significant portion of its range (higher population numbers, increased number of known roosts, reduced impacts from known threats, and improved protection status) and thus, does not meet the definition of endangered. On July 16, 2012, the Service received a petition from The Pacific Legal Foundation and others requesting that the Service downlist the lesser long-nosed bat as recommended in the 5-year review (as well as delist one species and downlist three other listed species). On September 9, 2013, the Service published a 90-day petition finding stating that the petition contained substantial scientific or commercial information indicating the petitioned action for the lesser long-nosed bat may be warranted (78 FR 55046). On November 28, 2014, the Service received a “60-day Notice of Intent to Bring Citizen Suit,” and on November 20, 2015, the New Mexico Cattle Growers Association and others filed a complaint challenging the Service's failure to complete in a timely manner the 12-month findings on five species, including the lesser long-nosed bat (New Mexico Cattle Growers Association, et al. v. United States Department of the Interior, et al., No. 1:15-cv-01065-PJK-LF (D.N.M)), asking the Court to compel the Service to make 12-month findings on the five species. On September 29, 2016, the parties settled the lawsuit with the requirement that the Service submit a 12-month finding for the lesser long-nosed bat to the Federal Register for publication on or before December 30, 2016, among other obligations. This document fulfills the portion of the settlement agreement that concerns the lesser long-nosed bat.

    Species Information

    A thorough review of the taxonomy, life history, ecology, and overall viability of the lesser long-nosed bat is presented in the Species Status Assessment (SSA) report for the lesser long-nosed bat (USFWS 2016), which is available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above). The SSA report documents the results of the biological status review for the lesser long-nosed bat and provides an account of the subspecies' overall viability through forecasting of the subspecies' condition in the future (USFWS 2016; entire). In the SSA report, we summarize the relevant biological data and a description of past, present, and likely future stressors to the subspecies, and conduct an analysis of the viability of the subspecies. The SSA report provides the scientific basis that informs our regulatory determination regarding whether this subspecies should be listed as an endangered or a threatened species under the Act. This determination involves the application of standards within the Act, its implementing regulations, and Service policies (see Delisting Proposal, below) to the scientific information and analysis in the SSA. The following discussion is a summary of the results and conclusions from the SSA report. We solicited expert review of the draft SSA report from lesser long-nosed bat experts, as well as experts in climate change modeling and plant phenology (the scientific study of periodic biological phenomena, such as flowering, in relation to climatic conditions). Additionally, and in compliance with our policy, “Notice of Interagency Cooperative Policy for Peer Review of Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we solicited peer reviews on the draft SSA report from four objective and independent scientific experts in November 2016.

    The lesser long-nosed bat (Leptonycteris curasoae yerbabuenae) is one of three nectar-feeding bats in the United States; the others are the Mexican long-nosed bat (L. nivalis) and the Mexican long-tongued bat (Choeronycteris mexicana). The lesser long-nosed bat is a migratory pollinator and seed disperser that provides important ecosystem services in arid forest, desert, and grassland systems throughout its range in the United States and Mexico, contributing to healthy soils, diverse vegetation communities, and sustainable economic benefits for communities. The range of the lesser long-nosed bat extends from the southwestern United States southward through Mexico.

    The Service has assigned a recovery priority number of 8 to the lesser long-nosed bat. This recovery priority number means that the lesser long-nosed bat was considered to have a moderate degree of threat and a high recovery potential. Because the lesser long-nosed bat is a colonial roosting species known to occur at a limited number of roosts across its range in Mexico and the United States (Arizona and New Mexico), impacts at roost locations could have a significant impact on the population, particularly if the impacts occur at maternity roosts. However, because approximately 60 percent (eight out of fourteen) of the roost locations known at the time of listing were on “protected” lands in both the United States and Mexico, the degree of threat was determined to be moderate. The primary recovery actions outlined in the recovery plan were to monitor and protect known roost sites and foraging habitats. Because both of these actions could be potentially be accomplished through management at all of the known roost sites known at that time, the recovery potential for the lesser long-nosed bat was determined to be high. A U.S. recovery plan was completed for the lesser long-nosed bat in 1997 (USFWS 1997, entire) and the Program for the Conservation of Migratory Bats in Mexico was formed in 1994 (Bats 1995, p. 1-6).

    The Service completed a 5-year review of the status of the lesser long-nosed bat in 2007. This review recommended downlisting this bat from endangered to threatened status under the Act (USFWS 2007; available at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm). In Mexico, the lesser long-nosed bat was recently removed from that nation's equivalent of the endangered species list (SEMARNAT 2010, entire; Medellin and Knoop 2013, entire). According to SEMARNAT (2010), over the last twenty years, Mexican researchers have carried out a wide range of studies that have demonstrated that the lesser long-nosed bat is no longer in the critical condition that led it to be listed as in danger of extinction in Mexico. Specifically, the evaluation to delist in Mexico showed 1) the distribution of lesser long-nosed bats is extensive within Mexico, covering more than 40 percent of the country; 2) the extent and condition of lesser long-nosed bat habitat is only moderately limiting and this species has demonstrated that it is adaptable to varying environmental conditions; 3) the species does not exhibit any particular characteristics that make it especially vulnerable; and 4) the extent of human impacts is average and increased education, outreach, and research have reduced the occurrence of human impacts and disturbance.

    Subspecies Description and Needs

    The lesser long-nosed bat is a migratory bat characterized by a resident subpopulation that remains year round in central and southern Mexico to mate and give birth, and a migratory subpopulation that winters and mates in central and southern Mexico, but that migrates north in the spring to give birth in northern Mexico and the southwestern United States (Arizona). This migratory subpopulation then obtains the necessary resources (in Arizona and New Mexico in the United States) to be able to migrate south in the fall back to central and southern Mexico. The lesser long-nosed bat is a nectar, pollen, and fruit-eating bat that depends on a variety of flowering plants as food resources. These plants include columnar cacti, agaves, and a variety of flowering deciduous trees. The lesser long-nosed bat is a colonial roosting species that roosts in groups ranging from a few hundred to over 100,000. Roost sites are primarily caves, mines, and large crevices with appropriate temperatures and humidity; reduced access to predators; free of the disease-causing organisms (fungus that causes white-nose syndrome, etc.); limited human disturbance; structural integrity maintained; in a diversity of locations to provide for maternity, mating, migration, and transition roost sites.

    The primary life-history needs of this subspecies include appropriate and adequately distributed roosting sites; adequate forage resources for life-history events such as mating and birthing; and adequate roosting and forage resources in an appropriate configuration (a “nectar trail”) to complete migration between central and southern Mexico and northern Mexico and the United States.

    For more information on this topic, see chapter 2 of the SSA Report (USFWS 2016), which is available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above).

    Current Conditions

    For the last 20 years following the completion of the lesser long-nosed bat recovery plan, there has been a steadily increasing effort related to the conservation of this subspecies. Better methods of monitoring have been developed, including the use of infrared videography and radio telemetry. These monitoring efforts have led to an increase in the number of known roosts throughout its range, from approximately 14 known at the time of listing to approximately 75 currently known roost sites, as well as more accurate assessments of the numbers of lesser long-nosed bats using these roosts. The 1988 listing rule emphasized low populations numbers along with an apparent declining population trend. At this time, we have documented increased lesser long-nosed bat numbers and positive trends (stable or increasing numbers of bats documented over the past 20 years) at most roosts. There is no question that current population numbers of lesser long-nosed bats exceed the levels known and recorded at the time of listing in 1988. A number of publications have documented numbers of lesser long-nosed bats throughout its range that far exceed the numbers used in the listing analysis (Fleming et al. 2003; Sidner and Davis 1988). For example, although numbers fluctuate from year to year, the numbers of lesser long-nosed bats estimated from 2010-2015 in the three known maternity roosts in the U.S. were an average of two and a half times higher than numbers presented in the Recovery Plan (USFWS 2016; p. 10). Furthermore, protection measures have been implemented at over half the roosts in both the United States and Mexico (approximately 40 roosts), including gating, road closures, fencing, implementation of management plans, public education, monitoring, and enforcement of access limitations. Generally, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Efforts to physically protect roosts through the use of gates or barriers have been implemented at six roost sites in Arizona. The experimental fence at one roost (a mine site) worked initially, but was subsequently vandalized resulting in roost abandonment. The fencing was repaired and there have been no subsequent breeches and the bats have recolonized the site (USFWS 2016; p. 11).

    In addition, since the 1988 listing rule, increased public and academic interest, along with additional funding, has resulted in additional research leading to a better understanding of the life history of the lesser long-nosed bat. At the time of listing, we believed livestock grazing and fire were impacting the viability of this subspecies. We now know that livestock grazing and fire have less of an impact on the viability of this subspecies than previously thought. Other threats have been reduced such as reducing the killing of non-target bat species during vampire bat control activities in Mexico (i.e., poisoning, dynamiting, burning, shooting, anticoagulants, roost destruction, etc.) because of outreach and education and reducing human disturbance at roosts through the use of fencing, monitoring, and the use of gates. However, roost disturbance, particularly in the border region between the United States and Mexico; habitat loss due to various land uses; and, to an unknown extent, effects due to climate change continue to be threats to this subspecies. Nonetheless, these threats are being addressed or ongoing research is developing management strategies such that we have determined that the effects of these threats will not affect the future viability of the lesser long-nosed bat.

    The lesser long-nosed bat's conservation status in Mexico has been determined to be secure enough that Mexico removed the subspecies from its endangered species list in 2013 because of the factors described above. The species has a greater distribution in Mexico than in the United States, but most of the same reasoning for the subspecies' removal from Mexico's endangered species list applies to our proposal to remove the lesser long-nosed bat from the U.S. List of Endangered and Threatened Wildlife. Much of the range of this species in the United States is on federally managed lands (>75 percent). Federal agencies have guidelines and requirements in place to protect lesser long-nosed bats and their habitats, particularly roost sites. As described above, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Gating of roosts on Federal lands is being implemented and evaluated. If the lesser long-nosed bat is delisted, protection of their roost sites and forage resources will continue on Federal lands. Agency land-use plans and general management plans contain objectives to protect cave resources and restrict access to abandoned mines, both of which can be enforced by law enforcement officers. In addition, guidelines in these plans for grazing, recreation, off-road use, fire, etc. will continue to prevent or minimize impacts to lesser long-nosed bat forage resources. Examples of these agency plans include the Fort Huachuca Integrated Natural Resources Management Plan, the Coronado National Forest Land Use and Resource Management Plan, and the Safford District Resource Management Plan (DOD 2001, entire; USFS 2005, entire; BLM 1991, entire). As described above, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Gating of roosts on Federal lands is being implemented and evaluated and, while the best design for such gates is still being developed, these gates do provide long-term protection of the sites. Further, outreach and education, particularly with regard to pollinator conservation, has increased and human attitudes regarding bats are more positive now than in the past; and the lesser long-nosed bat has demonstrated adaptability to potential adverse environmental conditions, such as changes in plant flowering phenology (see discussion under Factor E, below).

    Because of the occurrence of both resident and migratory subpopulations within the lesser long-nosed bat population, it is important for all of the necessary habitat elements to be appropriately distributed across the range of this species such that roost sites, forage resources, and migration pathways are in the appropriate locations during the appropriate season. Currently, the distribution of the lesser long-nosed bat extends from southern Mexico into the southwestern United States. In Mexico, the distribution of the lesser long-nosed bat covers approximately 40 percent of the country when considering resident areas, migration pathways, and seasonally-occupied roosts within the range of this subspecies. Within both the United States and Mexico, the current distribution of the lesser long-nosed bat has not decreased or changed substantially from that described in the literature. It is important to note, however, that, as discussed in the SSA report, any given area within the range of the lesser long-nosed bat may be used in an ephemeral manner dictated by the availability of resources that can change on an annual and seasonal basis. Roost switching occurs in response to changing resources and areas that may be used during one year or season may not be used in subsequent years until resources are again adequate to support occupancy of the area. This affects if and how maternity and mating roosts, migration pathways, and transition roosts are all used during any given year or season. However, while the distribution of the lesser long-nosed bat within its range may be fluid, the overall distribution of this species has remained similar over time (USFWS 2016, Chapters 1 through 3).

    For more information on this topic, see chapter 5 of the SSA Report (USFWS 2016), which is available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above).

    Recovery Planning and Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans identify site-specific management actions that will achieve recovery of the species and objective, measurable criteria that set a trigger for review of the species' status. Methods for monitoring recovery progress may also be included in recovery plans.

    Recovery plans are not regulatory documents; instead they are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act. They also identify suites of actions that are expected to facilitate achieving this goal of recovery. While recovery plans are not regulatory, they provide guidance regarding what recovery may look like and possible paths to achieve it. However, there are many paths to accomplishing recovery of a species, and recovery may be achieved without all recovery actions being implemented or criteria being fully met. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

    The 1997 lesser long-nosed bat recovery plan objective is to downlist the species to threatened (USFWS 1997, entire). The recovery plan does not explain why delisting was not considered as the objective for the recovery plan. The existing recovery plan does not explicitly tie the recovery criteria to the five listing factors at section 4(a)(1) of the Act or contain explicit discussion of those five listing factors. In addition, the reasons for listing discussed in the recovery plan do not actually correspond with the five listing factors set forth in section 4(a)(1) of the Act. The recovery plan lists four criteria that should be considered for downlisting the subspecies, which are summarized below. A detailed review of the recovery criteria for the lesser long-nosed bat is presented in the 5-year Review for the Lesser Long-Nosed Bat (USFWS 2007; available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm).

    Recovery Criterion 1 (Monitor Major Roosts for 5 Years)

    Significant efforts have been made to implement a regular schedule of monitoring at the known roost sites in Arizona. All thirteen of the roost sites identified in the recovery plan have had some degree of monitoring over the past 20 years. In the United States, all of the six roosts identified in the recovery plan for monitoring (Copper Mountain, Bluebird, Old Mammon, Patagonia Bat Cave, State of Texas, and Hilltop) have been monitored since 2001. This recovery criterion has been satisfied for roosts in Arizona. None of the New Mexico roosts were identified for monitoring in the recovery plan, but these roosts have been monitored sporadically since the completion of the recovery plan (USFWS 2007; p. 6-9). The seven roost sites in Mexico have been regularly monitored since the development of the recovery plan (Medellín and Torres 2013, p. 11-13). For more information, see chapter 2 of the SSA Report (USFWS 2016).

    Recovery Criterion 2 (Roost Numbers Stable or Increasing)

    Nearly all of the lesser long-nosed bat experts and researchers who provided input to the 5-year review indicated that they observed that the number of lesser long-nosed bats at most of the roost sites in both the United States and Mexico is stable or increasing. As discussed in the SSA report, current expert opinion supports this same conclusion (see chapter 2 of the SSA Report (USFWS 2016). The lesser long-nosed bat's conservation status in Mexico has been determined to be secure enough that Mexico removed the subspecies from its endangered species list in 2013 based on the factors discussed above.

    Recovery Criterion 3 (Protect Roost and Forage Plant Habitats)

    More lesser long-nosed bat roost locations are currently known, and are being more consistently monitored, than at the time of listing in 1988 (an increase from approximately 14 to approximately 75 currently known roosts). In related efforts, a number of studies have been completed that provide us with better information related to the forage requirements of the lesser long-nosed bat when compared to the time of listing and recovery plan completion. Because of improved information, land management agencies are doing a better job of protecting lesser long-nosed bat roost sites and foraging areas. For more information, see chapter 2 of the SSA Report (USFWS 2016).

    Recovery Criterion 4 (Status of New and Known Threats)

    Our current state of knowledge with regard to threats to this subspecies has changed since the development of the recovery plan. Threats to the lesser long-nosed bat from grazing on food plants, the tequila industry, and prescribed fire, identified in the recovery plan, are likely not as severe as once thought. Effects from illegal border activity and the associated enforcement activities are a new and continuing threat to roost sites in the border region. Potential effects to forage species and their phenology as a result of climate change have been identified, but are characterized by uncertainty and lack of data specifically addressing those issues. Nonetheless, lesser long-nosed bats have shown the ability to adapt to adverse forage conditions and we find that the lesser long-nosed bat is characterized by flexible and adaptive behaviors that will allow it to remain viable under changing climatic conditions. Some progress has been made toward protecting known lesser long-nosed bat roost sites; while the ultimate level of effectiveness of gates as a protection measure is still being evaluated and improved, they do provide long-term protection of roost sites. Gates are being currently being tested at a few additional lesser long-nosed bat roost sites. For more information, see chapter 4 of the SSA Report (USFWS 2016).

    As discussed in the SSA report and 5-year review, data relied upon to develop the 1988 listing rule and the recovery plan were incomplete. Subsequent to the completion of the listing rule and recovery plan, considerable additional data regarding the life history and status of the lesser long-nosed bat have been gathered and, as discussed above, have documented an increase in the number of known roost sites and the number of lesser long-nosed bats occupying those roosts. During the 2007 5-year review of the status of this subspecies, it was determined that the 1997 recovery plan was outdated and did not reflect the best available information on the biology of this subspecies and its needs (USFWS 2007; p. 30; available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm). Therefore, rather than use the existing outdated recovery criteria, the Service assessed the species' viability, as summarized in the SSA report (USFWS 2016), in making the determination of whether or not the lesser long-nosed bat has recovered as defined by the Act.

    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. 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. A species may be reclassified or delisted on the same basis. Consideration of these factors was included in the SSA report in the discussion on “threats” or “risk factors,” and threats were projected into the future using scenarios to evaluate the current and future viability of the lesser long-nosed bat. The effects of conservation measures currently in place were also assessed in the SSA report as part of the current condition of the subspecies, and those effects were projected in future scenarios. The evaluation of the five factors as described in the SSA report is summarized below.

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    The primary threat to this subspecies continues to be roost site disturbance or loss. The colonial roosting behavior of this subspecies, where high percentages of the population can congregate at a limited number of roost sites, increases the likelihood of significant declines or extinction due to impacts at roost sites. However, as discussed above, increased lesser long-nosed bat numbers and positive trends at most roosts have reduced concerns expressed in the 1988 listing rule with regard to low population numbers and an apparent declining population trend. Known roosts have had protective measures implemented, previously unknown roosts have been identified and agencies and conservation partners are implementing protective measures, and outreach and education has been effective in increasing the understanding of the general public, as well as conservation partners, with regard to the need to prevent disturbance at lesser long-nosed bat roosts while the bats are present (USFWS 2016, p. 45-48). As discussed in the SSA report, we have determined that the current lesser long-nosed bat population is currently viable and is likely to remain so into the future based on the documentation of higher numbers of lesser long-nosed bats, increased numbers of known and protected roost sites, improved outreach and education, and a decrease in the effects of known threats and plans to assess and address known threats in the future (USFWS 2016, entire). We have determined that roost sites have and will be protected to the extent that roost disturbance is no longer a sufficient threat to warrant listing under the Act.

    In general, while actual numbers of bats observed at roost sites may not support a statistically valid population trend, the overall numbers of bats observed at roost sites can be used as an index of population status. Although most data related to lesser long-nosed bat roost counts and monitoring have not been collected in a way that is statistically rigorous enough to draw statistically-valid conclusions about the trend of the population, in the professional judgment of biologists and others involved in these efforts, the total numbers of bats observed at roost sites across the range of the lesser long-nosed bat are considered stable or increasing at nearly all roost sites being monitored. With a documented increase from an estimated 500 lesser long-nosed bats in the U.S. at the time of listing to over 100,000 currently documented, the total number of bats currently being documented is many times greater than those numbers upon which the listing of this species relied, and while this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population.

    Significant information regarding the relationship of lesser long-nosed bats to their forage resources has been gathered over the past decade. Because lesser long-nosed bats are highly specialized nectar-, pollen-, and fruit-eaters, they have potential to be extremely vulnerable to loss of or impacts to forage species. However, lesser long-nosed bats are also highly effective at locating food resources, and their nomadic nature allows them to adapt to local conditions. For example, the resiliency of lesser long-nosed bats became evident in 2004, when a widespread failure of saguaro and organ pipe bloom occurred. The failure was first noted in Organ Pipe Cactus National Monument, and such a failure had not been noted in the recorded history of the Monument (Billings 2005). The failure extended from Cabeza Prieta NWR on the west to Tucson on the east, and south into central Sonora, Mexico. The large-scale loss of this lesser long-nosed bat food resource was somewhat offset by the fact that small numbers of both saguaro and organ pipe flowers continued to bloom into August and September. Such a failure would have been expected to result in fewer lesser long-nosed bats using roosts in this area or reduced productivity at these roosts. However, this was not the case. Maternity roost numbers remained as high as or higher than previous years, with some 25,000 adult females counted during 2004 monitoring (Billings 2005). Ultimately, it appears lesser long-nosed bats were able to subsist and raise young in southwestern Arizona in this atypical year. Other observations over the past 20 years, including some years of significantly reduced agave availability, have indicated that the lesser long-nosed bat is more adaptable than previously believed to changing forage resource availability. This adaptability leads us to a determination that forage availability will not significantly affect the viability of the lesser long-nosed bat population.

    Additionally, the effects of livestock grazing and prescribed fire on long-nosed bat food sources are also not as significant as originally thought. For example, Widmer (2002) found that livestock were not responsible for all of the utilization of agave flower stalks their study area. Wildlife such as javelina, white-tailed deer, and small mammals also utilized agave flower stalks as a food resource. The extent of livestock use of agave flower stalks appears to be related to standing biomass and distance from water. Further, Bowers and McLaughlin (2000) found that the proportion of agave flower stalks broken by cattle did not differ significantly between grazed and ungrazed areas. All of which indicate that livestock do not have a significant effect on lesser long-nosed bat food sources, over and above native grazers. Thomas and Goodson (1992) and Johnson (2001, p. 37) reported 14% and 19% mortality of agaves following burns. Some agency monitoring has occurred post-fire for both wildfires and prescribed burns. This monitoring indicates that agave mortality in burned areas is generally less than 10% (USFS 2015, p. 82-83; USFS 2013, p. 10-11). Contributing to this relatively low mortality rate is the fact that most fires burn in a mosaic, where portions of the area do not burn. Impacts of fire on agave as a food source for lesser long-nosed bats may not be a significant concern for the following reasons: Fire-caused mortality of agaves appears to be low; alternative foraging areas typically occur within the foraging distance from lesser long-nosed bat roosts; and most agave concentrations occur on steep, rocky slopes with low fuel loads (Warren 1996). In addition, Johnson (2001, p. 35-36) reported that recruitment of new agaves occurred at higher rates in burned plots than in unburned plots, indicating that there may be an increased availability over time of agaves in areas that have burned, if the return rate of fire is greater than seven years. The effects of agave harvesting are limited to bootleggers, which is likely occurring at the same levels as when the species was listed in 1988, however, this is not considered significant. In addition, increased outreach and education are being provided to tequila producers in an effort to reduce the effects of agave harvesting on lesser long-nosed bats.

    While not currently a threat affecting the viability of the lesser long-nosed bat population, the potential for migration corridors to be truncated or interrupted is a concern. Significant gaps in the presence of important roosts and forage species along migration routes would affect the population dynamics of this subspecies. While the lesser long-nosed bat continues to be faced with loss and modification of its habitat throughout its range, the habitats used by this subspecies occur over an extensive range that covers a wide diversity of vegetation and ecological communities. These are habitat characteristics that would not make this subspecies intrinsically vulnerable with regard to habitat limitations. That is to say, the wide variety of ecosystems that this subspecies uses, over a relatively expansive range, results in available areas characterized by the asynchronous flowering of forage resources making up the diet of the lesser long-nosed bat and buffers this subspecies from potential loss or reduction of habitats as a result of stochastic events, including the effects of climate change, among others.

    There is no question that current population numbers of lesser long-nosed bats exceed the levels known and recorded at the time of listing in 1988. A number of publications have documented numbers of lesser long-nosed bats throughout its range that far exceed the numbers used in the listing analysis with an estimated increase from fewer than 1,000 bats to approximately 200,000 bats (Fleming et al. 2003, pp. 64-65; Sidner and Davis 1988, p. 494). Also, in general, the trend in overall numbers of lesser long-nosed bats estimated at roost sites has been stable or increasing in both the United States and Mexico (Medellín and Knoop 2013, p. 13; USFWS 2016). Increased roost occupancy and the positive trend in numbers of lesser long-nosed bats occupying these roosts appear to be supported by adequate forage resources. The adaptability of the lesser long-nosed bat to changing forage conditions seems to allow the lesser long-nosed bat to sustain a positive population status under current environmental conditions.

    While some threats are ongoing with regard to lesser long-nosed bat habitat, in general, we find that threats to this species' habitat have been reduced or are being addressed in such a way that lesser long-nosed bat habitat is being enhanced and protected at a level that has increased since the 1988 listing of this species. In particular, areas that were vulnerable to threats have been protected or are now managed such that those threats have been reduced. Outreach and education have increased the understanding of what needs to be done to protect lesser long-nosed bat habitat. Therefore, based on the analysis completed in the SSA report (USFWS 2016; p. 54-61), we have determined that threats to the habitat of this species are currently reduced and will continue to be addressed in the foreseeable future, or are not as significant as previously thought. We find that threats to the habitat of this species have been eliminated, reduced, or mitigated to the extent that the subspecies no longer is an endangered or threatened species under the Act. Lesser long-nosed bat habitat conditions are currently, and are predicted to remain at levels that have and will improve the viability of the lesser long-nosed bat to the point that the species is no longer endangered.

    Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    Lesser long-nosed bats are not known to be taken for commercial purposes, and scientific collecting is not thought to be a problem (USFWS 1988, p. 38459). Caves and mines continue to attract recreational users interested in exploring these features but this threat has probably not increased since the listing. For example, Pima County, in southeastern Arizona, is implementing mine closures on lands that they have acquired for conservation purposes. Other land management agencies also carry out abandoned mine closures for public recreational safety purposes. A positive aspect of these mine closure processes is that most agencies and landowners now understand the value of these features to bats and other wildlife and are implementing measures to maintain those values while still addressing public health and safety concerns. The 1988 listing rule stated that bats were often killed by vandals (USFWS 1988, p. 38459). However, significant changes in the public perception of bats are occurring. Educational efforts are beginning to make a difference.

    In both the U.S. and Mexico, public education, in the form of radio and television spots, and educational materials have been implemented. Agencies now receive calls for assistance in nonlethal solutions to bat issues. Often, the general public does take the time to understand or differentiate when it comes to emotional issues such as rabies or vampire bats, but outreach and education are improving the understanding and knowledge of facts when it comes to the reality of the extent of these issues. There has been a focused effort in Mexico to reduce the mortality of non-target species in relation to vampire bat control (see chapter 4 of the SSA Report (USFWS 2016).

    In summary, we determine that the viability of the lesser long-nosed bat is not being significantly affected by threats from scientific research or public recreational activities.

    Factor C. Disease or Predation

    Disease does not currently appear to be a significant risk factor for the lesser long-nosed bat. Emerging disease issues, such as those associated with white-nose syndrome, may become more significant, however our current scientific assessment indicates that white-nose syndrome will not affect this non-hibernating species. Therefore, because lesser long-nosed bats do not hibernate, we do not anticipate that white-nose syndrome will be a significant risk factor for lesser long-nosed bats (see chapter 4 of the SSA Report (USFWS 2016).

    Predation does contribute to the mortality of lesser long-nosed bats at roost sites. Likely predators include snakes, raccoons, skunks, ringtails, bobcats, coyotes, barn owls, great-horned owls, and screech owls. Specifically, barn owls have been observed preying on lesser long-nosed bats at the maternity roost at Organ Pipe Cactus National Monument for many years and snakes have been observed preying on lesser long-nosed bats in Baja California Sur, Mexico. However, at large aggregations, such as bat roosts, predation is an insignificant impact on the population. Therefore, we find that neither disease nor predation are currently or is likely in the future to affect the viability of the lesser long-nosed bat.

    Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The current listing of the lesser long-nosed bat in the United States and the former listing of the bat in Mexico as an endangered species have provided this species with some level of protection. Outside of this, there are no laws or regulations protecting this species in Mexico. In fact, the lack of regulation related to control of vampire bats in Mexico is continuing to result in the mortality of the lesser long-nosed bat due to the lack of requirements to properly identify the target species. However, increased education and outreach is improving this situation in Mexico. In the United States, State laws and regulations provide some additional level of protection. For example, Arizona State Law in ARS Title 17 prohibits the taking of bats outside of a prescribed hunting season and, per Commission Order 14, there is no open hunting season on bats, meaning it is always illegal to take them. Provisions for special licenses to take bats and other restricted live wildlife are found in Arizona Game and Fish Commission Rule 12, Article 4 and are administered by the Arizona Game and Fish Department. However, this protection is for individual animals only, and does not apply to the loss or destruction of habitat. As discussed in the SSA report (USFWS 2016; p. 14), there is one Federal Act and one State Statute in the United States that provide some measure of protection at cave roosts. The Federal Cave Protection Act of 1988 prohibits persons from activities that “destroy, disturb, deface, mar, alter, remove, or harm any significant cave or alters free movement of any animal or plant life into or out of any significant cave located on Federal lands, or enters a significant cave with the intent of committing any act described . . .” Arizona Revised Statute 13-3702 makes it a class 2 misdemeanor to “deface or damage petroglyphs, pictographs, caves, or caverns.” Activities covered under ARS 13-3702 include “kill, harm, or disturb plant or animal life found in any cave or cavern, except for safety reasons.”

    The above laws and regulations will continue to protect lesser long-nosed bats and their habitats after delisting. We have determined that these existing regulations address the most important threats to the lesser long-nosed bat as discussed in the SSA report (USFWS 2016; p. 54-61).

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Ecosystems within the southwestern United States are thought to be particularly susceptible to the effects of climate change and variability (Strittholt et al. 2012, p. 104-152; Munson et al. 2012, p. 1-2; Archer and Predick 2008). Documented trends and model projections most often show changes in two variables: Temperature and precipitation. Recent warming in the southwest is among the most rapid in the nation, significantly more than the global average in some areas (Garfin et al. 2014, p. 463; Strittholt et al. 2012, p. 104-152; Munson et al. 2012, p. 1-2; Guido et al. 2009). Precipitation predictions have a larger degree of uncertainty than predictions for temperature, especially in the Southwest (Sheppard et al. 2002), but indicate reduced winter precipitation with more intense precipitation events (Global Climate Change 2009, p. 129-134; Archer and Predick 2008, p. 24). Further, some models predict dramatic changes in Southwestern vegetation communities as a result of the effects of climate change (Garfin et al. 2014, p. 468; Munson et al. 2012, p. 9-12; Archer and Predick 2008, p. 24). In the most recent assessment of climate change impacts by the Intergovernmental Panel on Climate Change (IPCC), the IPCC indicated that there would be a decrease in the number of cold days and nights and an increase in the number of warm days and warm nights which would favor frost-intolerant lesser long-nosed bat forage species like saguaro and organ pipe cacti, but may also affect the blooming phenology of those same species (IPCC 2014, p. 53). They also indicted that precipitation events would likely become more intense and that we are more likely to see climate-related extremes such as heat waves, droughts, floods, wildfires, etc. (IPCC 2014, p. 53).

    The U.S. Geological Survey produced a mapping tool that allows climate change projections to be downscaled to local areas including states, counties, and watershed units. We used this National Climate Change Viewer (U.S. Geological Survey 2016) to compare past and projected future climate conditions for Pima, Santa Cruz, and Cochise counties, Arizona. The baseline for comparison was the observed mean values from 1950 through 2005, and 30 climate models were used to project future conditions for 2050 through 2074. We selected the climate parameters of April maximum temperature and August and December mean precipitation to evaluate potential effects on lesser long-nosed bat forage resources. These particular parameters were selected from those available because they represented those most likely to impact the survival and flowering phenology of individual forage species.

    Similar to the more general climate change effects discussed above, the downscaled analysis also showed warming spring temperatures which could result in an early blooming period for lesser long-nosed bat forage species (USGS 2016). Precipitation changes were evaluated for changes to monsoon and winter precipitation. In line with the general climate projections, changes during the evaluated time periods were greater for winter precipitation than for monsoon precipitation. Changes projected for monsoon precipitation were minimal, but projected to be reduced by approximately one inch per 100 days for winter precipitation (USGS 2016).

    The best available information indicates that ongoing climate change will probably have some effect on lesser long-nosed bat forage resources. Such effects will occur as a result of changes in the phenology (periodic biological phenomena, such as flowering, in relation to climatic conditions) and distribution of lesser long-nosed bat's forage resources. How this affects the viability of the lesser long-nosed bat population is not clear. There is much uncertainty and a lack of information regarding the effects of climate change and specific impacts to forage for this subspecies. The biggest effect to the lesser long-nosed bat will occur if forage availability gets out of sync along the “nectar trail” such that bats arrive at the portion of the range they need to meet life-history requirements (migration, mating, birthing) and there are inadequate forage resources to support that activity. If the timing of forage availability changes, but changes consistently in a way that maintains the nectar trail, this subspecies is expected to adapt to those timing changes as stated above (see chapter 4 of the SSA Report (USFWS 2016). For example, as noted earlier, the resiliency of lesser long-nosed bats became evident in 2004, when a widespread failure of saguaro and organ pipe bloom occurred and lesser long-nosed bats were still, ultimately, able to subsist and raise young in southwestern Arizona in this atypical year. It is likely they did so by feeding more heavily on agaves (evident by agave pollen found on captured lesser long-nosed bats) than they typically do (see additional discussion under Factor A above). Although we are still not sure to what extent the environmental conditions described in climate change predictions will affect lesser long-nosed bat forage resource distribution and phenology, we have documented that lesser long-nosed bats have the ability to change their foraging patterns and food sources in response to a unique situation, providing evidence that this species is more resourceful and resilient than may have been previously thought. We find that the lesser long-nosed bat is characterized by flexible and adaptive behaviors that will allow it to remain viable under changing climatic conditions.

    Species Future Conditions and Viability

    We evaluated overall viability of the lesser long-nosed bat in the SSA report (USFWS 2016) in the context of resiliency, redundancy, and representation. Species viability, or the ability to survive long term, is related to the species' ability to withstand catastrophic population and species-level events (redundancy); the ability to adapt to changing environmental conditions (representation); and the ability to withstand disturbances of varying magnitude and duration (resiliency). The viability of this species is also dependent on the likelihood of new threats or risk factors or the continuation of existing threats now and in the future that act to reduce a species' redundancy, resiliency, and representation.

    As described in the SSA report, we evaluated the viability of the lesser long-nosed bat population at two timeframes, 15 years and 50 years. The 15-year timeframe represents the time it generally takes to document the effectiveness of various research, monitoring, and management approaches that have been or are implemented related to lesser long-nosed bat conservation. Therefore, the 15-year timeframe is a reasonable period of time within which we can predict outcomes of these activities in relation to the viability of the lesser long-nosed bat population. The 50-year timeframe is related primarily to the ability of various climate change models to reasonably and consistently predict or assess likely affects to lesser long-nosed bats and their forage resources. For each of these timeframes, we evaluated three future scenarios, a best-case scenario, a moderate-case scenario, and a worst-case scenario with respect to the extent and degree to which threats will affect the future viability of the lesser long-nosed bat population. We also determined how likely it would be that each of these three scenarios would actually occur. The SSA report details these scenarios and our analysis of the effects of these scenarios, over the two timeframes, on redundancy, resiliency, and representation of the lesser long-nosed bat population.

    During our decision-making process, we evaluated our level of comfort making predictions at each of the two timeframes. Ultimately, while the SSA report evaluates both timeframes, there was some discomfort expressed by decision makers for extending predictions of the future viability of the lesser long-nosed bat out to 50 years due to the uncertainty of climate change models and the difficulty of predicting what will happen in Mexico where the majority of this species' habitat occurs, but where we have less information with regard to the threats affecting the lesser long-nosed bats. In the SSA report, all three scenarios were evaluated over both time frames (USFWS 2016, p. 52-56). The evaluation results of future viability in the SSA report were identical for both timeframes (high viability), except in the worst-case scenario where, unlike the moderate- and best-case scenarios, the viability was moderate for the 15-year timeframe and low for the 50-year timeframe. For each future scenario, we describe how confident we are that that particular scenario will occur. This confidence is based on the following confidence categories: Highly likely (greater than 90 percent sure of the scenario occurring); moderately likely (70 to 90 percent sure); somewhat likely (50 to 70 percent sure); moderately unlikely (30 to 50 percent sure); unlikely (10 to 30 percent sure); and highly unlikely (less than 10 percent sure). The SSA report concluded that it is unlikely that the worst-case scenario will actually occur. The worst case scenario describes a drastic increase in negative public attitudes towards bats and lesser long-nosed bat conservation, a greater influence from white-nose syndrome, and the worst possible effects from climate change. Based on our experience and the past and ongoing actions of the public and the commitment of management agencies in their land-use planning documents to address lesser long-nosed bat conservation issues, both now and in the future in both the United States and Mexico, such drastic impacts are unlikely to occur (10 to 30 percent sure this scenario will occur). In fact, for the conditions outlined in the worst-case scenario, we find that certainty of the worst-case scenario occurring is closer to 10 percent than to 30 percent sure that this scenario would actually occur based on the commitment to conservation of this species and the adaptability of the lesser long-nosed bat. If the lesser long-nosed bat is delisted and prior to the final rule, we will confirm with our public and agency conservation partners that they will continue to coordinate and implement existing and future conservation actions related to the lesser long-nosed bat. For additional discussion related to the worst-case scenario, see the SSA report (USFWS 2016; p. 51-53). Such ongoing commitment to lesser long-nosed bat conservation has already been seen subsequent to the delisting of this bat in Mexico and our experience has been that it will also continue in the U.S. after delisting.

    Although the worst-case scenario was evaluated in the SSA report, because we found that it was unlikely to actually occur, the focus of our consideration was on the scenarios that had the greatest likelihood of occurring, the best- and moderate-case scenarios, where redundancy, resiliency, and representation remain high regardless of the timeframe or scenario considered. Under the current condition for the lesser long-nosed bat, as well as in both the best-case (somewhat likely to occur) and moderate-case (moderately likely to occur) future scenarios, redundancy, resiliency, and representation of the lesser long-nosed bat population remain high and the viability of the subspecies is maintained (USFWS 2016, p. 64-66).

    Delisting Proposal

    Section 4 of the Act and its implementing regulations, 50 CFR part 424, set forth the procedures for listing, reclassifying, or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. “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)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. For species that are already listed as endangered or threatened, the analysis of threats must include 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 delisting or downlisting and the removal or reduction 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 or 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. We conclude that the lesser-long nosed bat has recovered and no longer meets the definition of endangered or threatened under the Act.

    Although most data related to lesser long-nosed bat roost counts and monitoring have not been collected in a way that is rigorous enough to draw statistically calculable conclusions about the trend of the population, the total numbers of bats observed at roost sites across the range of the lesser long-nosed bat are considered stable or increasing at nearly all roost sites being monitored based on the professional judgment of biologists and others involved in these efforts. The total number of bats currently documented is many times greater than the total number of bats documented at the time of listing in 1988. At the time of listing, there were estimated to be less than 500 lesser long-nosed bats in the United States; current estimates are greater than 100,000. Rangewide, at the time of listing, it was estimated that there were less than 1,000 lesser long-nosed bats. Current rangewide estimates are approximately 200,000 lesser long-nosed bats. While this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population. This better information is related to the species' population and the number of roosts, and its distribution. Better information and increased efforts related to habitat protection (identification of roost sites and forage resources in planning efforts, implementation of protective measures for roosts and forage resources, increased awareness of habitat needs, etc.) have occurred and are planned to be implemented in the future, regardless of the listing status of this subspecies. This increased level of information and conservation, combined with the current state of its threats allow us to conclude that the subspecies is not in danger of extinction and is not expected to become endangered in the foreseeable future. Our thorough evaluation of the available data for occupancy, distribution, and threat factors, as well as the opinions of experts familiar with this subspecies, indicates a currently viable population status with a stable to increasing trend.

    Predicting the future viability of the lesser long-nosed bat is somewhat more difficult than for species that occur in discrete, mostly consistent habitats (ponds, springs, specific soil types, etc.). The lesser long-nosed bat population is fluid and constantly adapts to changing environmental conditions over a large, bi-national range. Lesser long-nosed bat roost sites are discrete and consistent, but the lesser long-nosed bat may use these roost sites in a changing and adaptable manner to take advantage of ephemeral and constantly changing forage resources with both seasonal and annual differences of occurrence. Therefore, observations of occupancy and numbers of bats using these roosts may not be a complete or accurate representation of the status of the subspecies across its range. However, the information regarding the status of the lesser long-nosed bat population is much more accurate and complete than it was as the time of the 1988 listing rule.

    The future viability of this subspecies is dependent on a number of factors. First, an adequate number of roosts in the appropriate locations is needed. As detailed in the SSA report, adequate roosts of all types (maternity, mating, transition, and migratory) currently exist and are likely to exist into the foreseeable future (USFWS 2016; p. 8-14). Second, sufficient available forage resources are located in appropriate areas, including in proximity to maternity roosts and along the “nectar trail” used during migration. The discussion above and the SSA report detail our analysis and determination that forage resources are adequate and that the lesser long-nosed bat is likely to adapt to any changes in forage availability in the future (USFWS 2016; p. 15-20). In addition, the SSA report analyses the contribution of current and future management of threats to the subspecies' long-term viability. The future viability of the lesser long-nosed bat will also depend on continued positive human attitudes towards the conservation of bats, implementation of conservation actions protecting roost sites and forage and migration resources, and implementation of needed research and monitoring will inform adaptive management that will contribute to the future viability of the lesser long-nosed bat population. The SSA report discusses the improved status of these issues across the range of the lesser long-nosed bat in much more detail (USFWS 2016; p. 43-46). The results of the SSA also indicate that the status of the lesser long-nosed bat has further improved in the years since the 2007 5-Year Review (FWS 2007).

    Based on the analysis in the SSA report for the lesser long-nosed bat (USFWS 2016 and summarized above, the lesser long-nosed bat does not currently meet the Act's definition of endangered because it is not in danger of extinction throughout all of its range. Additionally, the lesser long-nosed bat is not a threatened species because it is not likely to become endangered in the foreseeable future throughout all of its range.

    Significant Portion of the Range Analysis

    Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Having determined that the lesser long-nosed bat is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which the lesser long-nosed bat is in danger of extinction or likely to become so. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.

    The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species or threatened species, and no SPR analysis will be required. If the species is neither in danger of extinction, nor likely to become so throughout all of its range, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer warranted.

    When we conduct an SPR 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. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. 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 endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. 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 would not warrant further consideration.

    We identified portions of the lesser long-nosed bat's range that may be significant, and examined whether any threats are geographically concentrated in some way that would indicate that those portions of the range may be in danger of extinction, or likely to become so in the foreseeable future. Within the current range of the lesser long-nosed bat, some distinctions can be made between Mexico and the United States (international border, vegetation communities, etc.). While these geographic distinctions may be significant, our analysis indicates that the species is unlikely to be in danger of extinction or to become so in the foreseeable future in any geographic region within the range of the lesser long-nosed bat given that factors such as roost sites, forage resources, and migration pathways are well distributed across the entire range and that the status of the species is stable or increasing in both the United States and Mexico, with conservation actions being implemented to address ongoing threats. Therefore, we have not identified any portion of the range that warrants further consideration to determine whether they are a significant portion of its range.

    We also evaluated representation across the lesser long-nosed bat's range to determine if certain areas were in danger of extinction, or likely to become so, due to isolation from the larger range. Ramirez (2011) investigated population structure of the lesser long-nosed bat through DNA sampling and analysis and reported that combined results indicated sampled individuals belong to single population including both the United States and Mexico. Consequently, individuals found in the northern migratory range (United States) and in Mexico should be managed as a single population.

    Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

    Conclusion

    We have determined that none of the existing or potential threats cause the lesser long-nosed bat to be in danger of extinction throughout all or a significant portion of its range, nor is the subspecies likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; or (3) the original scientific data used at the time the species was classified were in error. On the basis of our evaluation, we conclude that, due to recovery, the lesser long-nosed bat is not an endangered or threatened species. We therefore propose to remove the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).

    Effects of This Proposed Rule

    This proposed rule, if made final, would revise our regulations at 50 CFR 17.11(h) by removing the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this subspecies. 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 the lesser long-nosed bat. Because no critical habitat was ever designated for the lesser long-nosed bat, this rule would not affect 50 CFR 17.95. State laws related to the lesser long-nosed bat would remain in place and be enforced and would continue to provide protection for this subspecies. State and Federal laws related to protection of habitat for the lesser long-nosed bat, such as those addressing effects to caves and abandoned mines, as well as protected plant species such as columnar cacti and agaves, would remain in place and afford lesser long-nosed bat habitat some level of protection.

    Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires the Secretary of Interior, through the Service and in cooperation with the States, to implement a system to monitor for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain populations 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 will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective post-delisting monitoring (PDM) plan for the lesser long-nosed bat. The PDM plan will build upon current monitoring techniques and research, as well as emerging technology and techniques. Monitoring will assess the species numbers, distribution, and threats status, as well as ongoing management and conservation efforts that have improved the status of this subspecies since listing. The PDM plan will identify, to the extent practicable and in accordance with our current understanding of the subspecies' life history measurable thresholds and responses for detecting and reacting to significant changes in the lesser long-nosed bat's populations, distribution, and persistence. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The result of the investigation will be to determine if the lesser long-nosed bat warrants expanded monitoring, additional research, additional habitat protection, or resumption of Federal protection under the Act. The draft PDM plan will be made available for public comment in a future publication in the Federal Register and will be finalized concurrent with finalization of this rule.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    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 adopted 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), Executive Order 13175, and the Department of 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. Therefore, we have and will solicit information from Native American Tribes during the comment period to determine potential effects on them or their resources that may result from the proposed delisting of the lesser long-nosed bat, and we will fully consider their comments on the proposed rule submitted during the public comment period.

    References Cited

    A complete list of all references cited in this rule is available on http://www.regulations.gov, or upon request from the Field Supervisor, Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this document are the staff members of the Arizona Ecological Services Field Office, U.S. Fish and Wildlife Service (see 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 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; 4201-4245, unless otherwise noted.

    § 17.11 [Amended]
    2. Amend § 17.11(h) by removing the entry for “Bat, lesser long-nosed” under MAMMALS from the List of Endangered and Threatened Wildlife. Dated: December 16, 2016. Marty J. Kodis. Acting Director, Fish and Wildlife Service .
    [FR Doc. 2016-31408 Filed 1-5-17; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0137; FXES11130900000 178 FF09E42000] RIN 1018-BB89 Endangered and Threatened Wildlife and Plants; Reclassifying Echinocereus fendleri var. kuenzleri From Endangered to Threatened AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule and 12-month petition finding.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to reclassify Echinocereus fendleri var. kuenzleri (Kuenzler hedgehog cactus) from endangered to threatened under the Endangered Species Act of 1973, as amended (Act). After review of the best available scientific and commercial information, we find that reclassifying E. fendleri var. kuenzleri as threatened is warranted. This document also serves as our 12-month finding on a petition to reclassify E. fendleri var. kuenzleri as threatened. We request information and comments from the public regarding this proposed rule and our 12-month finding.

    DATES:

    To ensure that we are able to consider your comments on this proposed rule, they must be received or postmarked on or before March 7, 2017. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by February 21, 2017.

    ADDRESSES:

    Written comments: You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal:

    http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0137, which is the docket number for this proposed 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 “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2016-0137; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    We request that you send comments only by one of 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 Information Requested, below, for more information).

    Copies of documents: This proposed rule and supporting documents are available on http://www.regulations.gov. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the New Mexico Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone 505-346-2525.

    FOR FURTHER INFORMATION CONTACT:

    Wally Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone 505-761-2525; facsimile 505-346-2542. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Information Requested

    Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:

    (1) Reasons why we should or should not reclassify Echinocereus fendleri var. kuenzleri under the Act (16 U.S.C. 1531 et seq.).

    (2) New biological or other relevant data concerning any threat (or lack thereof) to this plant and existing regulations that may be addressing these or any of the below threats.

    (3) New information concerning the population size or trends of E. fendleri var. kuenzleri.

    (4) New information on how E. fendleri var. kuenzleri responds to wildland and prescribed fire.

    (5) New information on the current or planned activities within the range of E. fendleri var. kuenzleri that may adversely affect or benefit the plant.

    (6) New information or data on the projected and reasonably likely impacts to E. fendleri var. kuenzleri or its habitat associated with climate change.

    Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act 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.”

    Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative 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. Please note that comments posted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

    If you mail or hand-deliver hardcopy comments that include personal identifying information, 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. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

    In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:

    (1) You can view them on http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0137, which is the docket number for this rulemaking.

    (2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's New Mexico Ecological Services Field Office (see ADDRESSES).

    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 joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. A thorough review of information that we relied on in preparing this proposed rule—including information on taxonomy, genetics, life-history, ecology, population distribution and abundance, and potential threats from our recent 5-year review (Service 2016)—is available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0137. The purpose of peer review is to ensure that decisions are based on scientifically sound data, assumptions, and analyses. A peer review panel will conduct an assessment of the proposed rule, and the specific assumptions and conclusions regarding the proposed reclassification from endangered to threatened (i.e., “downlisting”). This assessment will be completed during the public comment period.

    We will consider all comments and information we receive during the comment period on this proposed rule as we prepare the final determination. Prior to issuing a final rule on this proposed action, we will take into consideration all additional information and comments that we receive. Such information may lead to a final rule that differs from this proposal.

    Background

    Found on slopes of sandy gravel and amid rocky outcrops in southern New Mexico, Echinocereus fendleri var. kuenzleri is a very small member of the cactus family (Cactaceae) that grows in Great Plains grassland, oak woodland, or pinon-juniper woodland within elevations of 1,600 to 2,000 meters (5,200 to 6,600 feet). Individuals may be single stemmed or branched; when branched, the stems are usually fewer than four, but may number as many as eight (Service 1985, p. 3). Stems are normally short-conical, about 15 centimeters (cm) (6 inches (in)) long and 10 cm (4 in) wide, with 9 to 12 ribs with prominent tubercles from which the spine clusters originate, and central spines are usually absent (Castetter et al. 1976, pp. 76-82, Service 1985, p. 3). Useful characteristics to distinguish the taxon from other cacti within its range are its few, contorted, white, chalky-textured spines and large, magenta flowers (Service 1985, p. 4). Fruits are bright red when mature, with black seeds. The cactus flowers in late May and fruits ripen in July, with flowering occurring after only when a cactus reaches 4 to 5 years of age. Like other rare cacti related to this genus, it is believed that E. fendleri var. kuenzleri is an obligate outcrosser (self-incompatible) that requires pollination for sexual reproduction (Tepedino 1998). Little is known about the pollinators of this cactus, but it most likely involves a range of nectar- seeking insects (Ferguson 1989, pp. 217-224).

    When we originally listed this cactus in 1979, we were aware of only a single population of approximately 200 plants located on the east slope of the Sacramento Mountains in New Mexico (Chaves and Otero Counties) (44 FR 61924; October 26, 1979). When the recovery plan was adopted in 1985, the plant was known to exist in two locations with a total of fewer than 500 plants. It is now reasonable to estimate, based on recent surveys, that several thousand cacti exist within the known range of this taxon, with approximately 3,300 individuals observed within 11 known population centers since 1981, when more intensive surveys were initiated (Service 2005, entire; 2016, entire). Since 1979, the range of this plant has also been extended 10 miles to the west in Otero County, 40 miles north in Lincoln County (DeBruin 1993), and approximately 100 miles to the southeast (from its northwestern-most location in Lincoln County) into the Guadalupe Mountains of Eddy County. Numerous new locations within this range place it within the U.S. Department of Agriculture (USDA) -Forest Service and U.S. Department of the Interior (USDI)- Bureau of Land Management (BLM) jurisdictions as well on private and State lands. It has also been found on the west side of the Sacramento Mountains in Lincoln County (Knight 1999), and on USDA-Forest Service and USDI-BLM lands in the northern Guadalupe Mountains in Eddy and Otero Counties (Chauvin et al. 2001, Sivinski 1996). Populations are not continuous within this range, but are patchy, scattered, and rare.

    Some have questioned the taxonomic status of Echinocereus fendleri var. kuenzleri, by considering it to be a synonym of the common and widespread E. fendleri var. fendleri (Anderson 2001, Zimmerman and Parfitt 2003). However, other assessments by local experts acknowledged that at the northwest edge of the cactus' range, within one of the 11 known populations, E. fendleri var. kuenzleri individuals occur along with the variety E. fendleri var. fendleri and intergradations between both varieties can be found (Rare Plant Technical Council of New Mexico 2005, Marron Associates 2000, entire; Baker 2007, entire). However, because the remaining 10 populations located more toward the center of E. fendleri var. kuenzleri's known distribution exhibit consistently reliable traits unique to this variety, the cactus warrants future study to verify a change in its taxonomic status (Rare Plant Technical Council of New Mexico 2005). The full taxonomic history can be found in the recovery plan (Service 1985) with the most recent updates in the 5-year review (Service 2016, entire). Recent taxonomic review of the varieties of Echinocereus fendleri retained kuenzleri as a variety (Felix et al. 2014). Because of the limited area of introgression and the identification of consistently reliable traits unique to this variety, we do not believe a taxonomic change is warranted at this time.

    For a detailed discussion of Echinocereus fendleri var. kuenzleri's description, taxonomy, life history, habitat, soils, distribution, and abundance, and a discussion of the role of fire in the taxon's regeneration, please see the recovery plan (Service 1985, entire) and the 5-year reviews (Service 2005, entire; 2016, entire) available for review at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0137.

    Previous Federal Actions

    We proposed to list this plant, with the scientific name Echinocereus hempelli, as an endangered species under the Act on June 16, 1976 (41 FR 24524), because of threats from the great demand by private and commercial collectors, road maintenance and improvements, cattle grazing, and real estate development. We published a final rule listing the plant, with the scientific name Echinocereus kuenzleri, as an endangered species in the Federal Register on October 26, 1979 (44 FR 61924). We finalized a recovery plan for the plant, with the scientific name Echinocereus fendleri var. kuenzleri, in March 1985 (Service 1985).

    Under the Act, we maintain the Lists of Endangered and Threatened Wildlife and Plants at 50 CFR 17.11 (for wildlife) and 17.12 (for plants) (Lists). We amend the Lists by publishing final rules in the Federal Register. Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. Section 4(c)(2)(B) requires that we determine: (1) Whether a species no longer meets the definition of endangered or threatened and should be removed from the Lists (delisted), (2) whether a species listed as endangered more properly meets the definition of threatened and should be reclassified to threatened (“downlisted”), or (3) whether a species listed as threatened more properly meets the definition of endangered and should be reclassified to endangered (“uplisted”). In accordance with 50 CFR 424.11(d), using the best scientific and commercial data available, we will delist a species if the data substantiate that the species is neither endangered nor threatened for one or more of the following reasons: (1) The species is considered extinct; (2) the species is considered recovered; or (3) the original data available when the species was listed, or the interpretation of such data, were in error. On July 21, 2004, we published a notice (69 FR 43621) announcing that we were conducting a 5-year review of the status of E. fendleri var. kuenzleri under section 4(c)(2) of the Act. In that notice, we requested that the public provide us any new information concerning this plant. The 5-year review, completed on June 7, 2005 (Service 2005), resulted in a recommendation to change the status of this cactus from endangered to threatened. The 2005 and 2016 5-year reviews for E. fendleri var. kuenzleri are available on the Service's Environmental Conservation Online System (ECOS) (https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=Q1VW).

    On July 16, 2012, we received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting the Service to reclassify Echinocereus fendleri var. kuenzleri from endangered to threatened. The petition was based on the analysis and recommendations contained in the most recent 5-year review for this taxon. On September 9, 2013 (78 FR 55046), we published in the Federal Register a 90-day finding for the 2012 petition to reclassify E. fendleri var. kuenzleri. In our 90-day finding, we determined the 2012 petition provided substantial information indicating the petitioned actions may be warranted, and we initiated a status review for E. fendleri var. kuenzleri. This proposed downlisting rule constitutes the 12-month finding and our 5-year status review for E. fendleri var. kuenzleri.

    Recovery and Recovery Plan Implementation

    Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List. However, revisions to the List (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Therefore, recovery criteria should indicate when a species is no longer an endangered species or threatened species because of any of the five statutory factors.

    Thus, while recovery plans provide important guidance to the Service, States, and other partners on methods of minimizing threats to listed species and measurable objectives against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of or remove a species from the Federal List of Endangered and Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of the best scientific and commercial data then available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

    In 1985, we finalized a recovery plan for E. fendleri var. kuenzleri but it provides no delisting criteria (Service 1985). The recovery plan states that E. fendleri var. kuenzleri could be reclassified to threatened status when existing natural populations are increased to approximately 5,000 individual plants and when that population level is maintained for a period of 5 consecutive years (downlisting criterion 1) (Service 1985, p. iii). The second downlisting criterion is based on the need for the Service to develop policy for propagated cacti and the introduction of 10,000 artificially propagated E. fendleri var. kuenzleri into the commercial market to counter the threat at that time of collection.

    The first criterion was intended to address the point at which imminent threats to the plant had been ameliorated so that the populations were no longer in immediate risk of extirpation. Estimated abundance of individuals in all populations has changed over time, from approximately 200 individuals at the time of listing in 1979, to multiple populations with more than 3,300 individuals (Service 2005, p. 4; Service 2016, pp. 3-4). We believe there are likely more than 3,300 individuals across the range of E. fendleri var. kuenzleri because the difficulty in locating nonflowering plants and the lack of survey efforts in the entire suitable habitat limit the ability to observe many of these cacti potentially growing in areas of suitable habitat.

    Currently, E. fendleri var. kuenzleri occurs in 11 unique population clusters defined by occupied locations separated by several miles of unsuitable or unoccupied habitats. According to data maintained by Natural Heritage New Mexico, approximately 97 percent of known E. fendleri var. kuenzleri individuals occur on lands managed by either the USDA-Forest Service (FS) or USDI-BLM (2016). There are two populations in the Guadalupe Mountains (mid-range and north range), eight populations in the Sacramento Mountains (north of Carrizozo), and one population in the lower hills of the Guadalupe Mountains, east of the Sacramento range (Service 2005, p. 5; Service 2016, pp. 3-4). Based on this information, this plant is much more numerous than originally determined and is distributed over a broader area.

    The second criterion is for the Service to develop policy for commercial propagation and to introduce 10,000 propagated individuals into the commercial market. Echinocereus fendleri var. kuenzleri is now readily available on the open market from commercial growers with Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) certificates (see https://www.cites.org for additional information on CITES). Local populations, especially near the type locality (location where the species was first identified), may continue to be impacted by occasional poaching from growers and hobbyists; however, at this time, this taxon is unlikely to be seriously threatened in most of its range by cactus collectors, because of availability from commercial growers. Thus, collection is no longer considered a major threat to this cactus and this second criterion is no longer relevant.

    Various studies have occurred since development of the recovery plan that aid in our understanding of the status of Echinocereus fendleri var. kuenzleri. For example:

    • Recent surveys indicate that E. fendleri var. kuenzleri is broadly distributed within its range, plant density can vary from location to location, and populations may be more dynamic than they were expected to be. For example, at Ft. Stanton, the population demonstrated a shift from inside of the survey plot to establishment outside of the survey plot. (Chauvin et al. 2012, entire; Muldavin et al. 2013, entire).

    • May et al. (2008, p. 170) found E. fendleri var. kuenzleri was distributed randomly with respect to other vegetation and did not support the hypothesis that it is associated with vegetation that provides thermal protection.

    • Both Baker (2007, entire) and Felix et al. (2014, p. 64) found morphological characters than differentiate this taxon from other similar taxa.

    • Sivinski (2007, p. 93) found that wildfire can cause high mortality in this cactus, and it was slow to recover, with first flowering occurring at between four to five years after seedlings germinated.

    • May (2006, entire) and Wester and Britton (2007, p. 11) found that prescribed fire had little effect on E. fendleri var. kuenzleri under low fuel loads and that prescribed, low intensity fire could be used to lower fuel loads, reducing the risk of catastrophic wildfires.

    These and other data that we have analyzed indicate that most threats identified at listing and during the development of the recovery plan are reduced in areas occupied by E. fendleri var. kuenzleri and that the status of the cactus has improved, primarily due to finding additional populations over a broader range. However, more recent threats associated with fire regime alteration, the lack of a comprehensive habitat management plan, drought, and climate change effects may impede the plant's ability to recover.

    Summary of Factors Affecting E. fendleri var. kuenzleri

    Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species on, reclassifying species on, or removing species from the Lists of Endangered and Threatened Wildlife and Plants. The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered species or threatened species because of any one or a combination 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 man-made factors affecting its continued existence. A species may be reclassified on the same basis.

    Determining whether the status of a species has improved to the point that it can be reclassified from endangered to threatened (“downlisted”) requires consideration of whether the species is endangered or threatened because of the same five categories of threats specified in section 4(a)(1) of the Act. 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 delisting or downlisting and the removal of the Act's protections.

    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 an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” in the significant portion of its range phrase refers to the range in which the species currently exists. For the purposes of this analysis, we first evaluate the status of Echinocereus fendleri var. kuenzleri throughout all of its range, then consider whether this cactus is in danger of extinction or likely to become so in any significant portion of its range.

    At the time of listing, the primary threats to E. f. var. kuenzleri were private and commercial collection, road improvement and maintenance, real estate development, and livestock grazing (44 FR 61924; October 26, 1979). By the time the recovery plan was developed in 1985, the same threats were still considered relevant (Service 1985, pp. 8-12). Subsequently, we conducted 5-year status reviews that included an analysis of factors that affect the plant (Service 2005, pp. 12-14; Service 2016, p. 5). The 2005 5-year status review found that the threat of habitat loss from road improvement and maintenance and real estate development (Factor A), and a direct threat from commercial collection (Factor B) have decreased since the time of listing, and are no longer considered significant threats. Livestock grazing (Factor C), continues to be a threat by trampling, only if areas are improperly managed and cattle are aggregated in areas where the cacti are growing. The 2005 review also identified an additional threat of fire based on the alteration of the natural fire regime (Service 2005). The 2016 5-year status review added the threats of drought and effects due to climate change because drought has impacted several populations and the long-term trend in the range of the cactus is one of increased temperatures and drying (Service 2016).

    Recommendations to address the impacts of these emerging threats, including a long-term monitoring plan for Echinocereus fendleri var. kuenzleri, should be developed to further understand how these threats affect the long-term viability of the taxon.

    Habitat Loss—Road Construction and Maintenance, Residential Development

    Habitat loss by road construction and maintenance and through residential development is negligible in the area occupied by Echinocereus fendleri var. kuenzleri. Where road construction has occurred in occupied areas, individual cacti have been avoided or mitigation has been provided (Marron Associates 2013, entire). If this proposed rule is adopted, this avoidance would likely continue because Echinocereus fendleri var. kuenzleri would remain listed as threatened. Residential development has not been a threat due to the preference of the plant to grow in dry, rugged locations not favored for development. More importantly, the majority of the populations discovered after the recovery plan was written are found on federally managed lands that are not likely to be developed.

    Livestock Grazing

    Grazing at low intensity stocking rates can be compatible with the presence of Echinocereus fendleri var. kuenzleri, primarily because the cactus tends to be found in rocky outcrops amid rugged locations, although minimal trampling can occur. Areas on USDA-Forest Service and USDI-BLM lands have fenced out livestock to effectively protect the cactus in strategic locations. Additionally, federal grazing allotment permits are evaluated for renewal at least every 10 years and grazing impacts analysis is part of the permit review. Permits can be reviewed sooner to meet management goals. During this review, livestock numbers can be adjusted to achieve conservation goals. Each range improvement (e.g., water pipeline, fence, livestock water) on Federal surface is evaluated for impacts to special status species including endangered and threatened species. Each agency uses project-specific conservation measures to avoid impacts to E. fendleri var. kuenzleri.

    Private and Commercial Collection

    As mentioned previously, the collection of Echinocereus fendleri var. kuenzleri is uncommon at this time, due to the legal availability of the cactus in the commercial market. Certified commercial growers have Echinocereus fendleri var. kuenzleri readily available on the open market in accordance with CITES.

    The following sections provide a summary of the current threats impacting Echinocereus fendleri var. kuenzleri now and those that may occur in the foreseeable future. These threats include alteration of the fire regime (Factors A and E), drought (Factors A and E), effects due to climate change (Factors A and E), and the effect of any existing regulatory mechanisms (Factor D) or conservation efforts that are ameliorating these impacts.

    Fire Regime Alteration

    Both arid grasslands and pinyon-juniper savanna, where E. f. var. kuenzleri occurs, had short-interval fire frequency historically (Payson et al. 2000, p. 122; Gebow and Halverson 2005, p. 4). The fire frequency interval has been extended by fire suppression and grazing (Payson et al. 2000, pp. 126, 132; Gebow and Halverson 2005, p. 4). Livestock grazing reduces the total amount of fine fuels (grasses) that would otherwise carry wild fire across a landscape, thus, extending the period between hotter, more damaging fire events. Use of prescribed fire as a management tool has been growing and is currently implemented to restore grasslands and savannas that have been impacted by historical fire suppression and grazing (Knapp et al. 2009, p. 1). Fires, whether wild or prescribed, within the grassland habitats of Echinocereus fendleri var. kuenzleri can have impacts to the cactus (Sivinski 2007, entire), such as slowing recovery and lessening the cactus' ability to withstand a short-interval fire frequency. The cactus typically undergoes about four to five years of slow growth before individuals are able to flower and set seed, so recolonization after a fire can take many years (Sivinski 2007, p. 4). However, Wester and Britton (2007, p. 11) found no evidence that the plant was negatively affected by prescribed fire, although high fuel loads did increase individual mortality. This suggests that prescribed burns in Echinocereus fendleri var. kuenzleri habitat could be designed to remove fuel loads without causing direct mortality associated with wildfire (May 2006, p. 44). While we originally believed that fire would negatively impact the Echinocereus fendleri var. kuenzleri, we now believe that active management, including the use of low intensity prescribed fire at longer frequencies, could restore the landscape to a natural fire frequency interval, reducing the likelihood of catastrophic wild fires, and thus, reducing impacts on the cactus when fire does occur. Because the cactus is capable of reproducing from seed, but reestablishment of populations may take considerable time, fire frequencies between 25 and 50 years have been recommended (Sivinski 2007, Muldavin 2012) to achieve the best population sustainability. A comprehensive habitat management plan should be developed to ensure that the use of fire is coordinated to optimize conditions for Echinocereus fendleri var. kuenzleri.

    Drought

    During 11 of the last 15 years (2001-2015), there has been moderate to exceptional drought conditions in the area where Echinocereus fendleri var. kuenzleri occurs, with 10 percent of the time in exceptional drought (National Drought Mitigation Center 2015, Four County Data). The 2002-2003 drought spanned all of southwestern North America and was anomalously dry with unusually high temperatures (Breshears et al. 2005, pp. 15, 144); similar conditions occurred in 2011-2013.

    Echinocereus fendleri var. kuenzleri has likely experienced and rebounded from periods of drought in the past. However, should substantial effects due to climate change materialize with increased severity and frequency of drought, it would likely reduce the long-term survivorship of this cactus. Drought is also directly related to Echinocereus fendleri var. kuenzleri population health with regard to reproduction and establishment. As with many cactus species, seed germination and seedling survival is dependent on precipitation (Jordan and Nobel 1981, p. 905). Little is known about the Echinocereus fendleri var. kuenzleri seedbank. Even if seedbanks exist and persist, adequate precipitation during the seedling's first year of growth is essential for survival (Roller 1996a, p. 38). In studies of seed germination in similar cacti, Roller (1996a, p. 77) found that on average 88 percent of all seed produced during the summer monsoon season germinated; however, only a small portion of the seedlings survived. Surveys show few seedlings and young juvenile plants among the Echinocereus fendleri var. kuenzleri population survive (e.g. Ecosphere Environmental Services Inc. 1995, pp. 17-21; Schmalzel 2000d, p. 5; Baker 2011, pp. 5-7). Heat stress in adult cacti is minimal compared to other plant species, as they are able to survive heat stress due to both morphology and metabolism (Smith et al. 1984, pp. 647, 650; Wahid et al. 2007, p. 199). Extreme temperatures can, however, negatively impact seedling survival in many desert-adapted plants, and drought coupled with high temperatures lessens temperature tolerance in seedlings (Nobel 1984, pp. 310, 316). Finally, plants that are already stressed from prolonged drought are more susceptible to insect attack and disease. Without sufficient monitoring in place to assess Echinocereus fendleri var. kuenzleri's demographic responses and population trends, the severity of the threat of drought can only be surmised based on other cacti and other drought research.

    Climate Change

    Based on the unequivocal evidence of warming of the earth's climate from observations of increases in average global air and ocean temperatures, widespread melting of glaciers and polar ice caps, and rising sea levels recorded in the Intergovernmental Panel on Climate Change Report (IPCC 2007a, entire; 2013, entire), effects due to climate change are now a consideration for Federal agency analysis (Government Accounting Office 2007, entire). The Service will incorporate climate change into our decision making under the Act (Service 2010, entire). The earth's surface has warmed by an average of 0.74 degrees Celsius (°C) (1.3 degrees Fahrenheit (°F)) during the 20th century (IPCC 2007b, p. 30). The IPCC (2013, p. 7) projects that there will very likely be an increase in the frequency of hot extremes, heat waves, and heavy precipitation events as a result of climate change.

    This global climate information has been downscaled to our region of interest, and projected into the future under two different scenarios of possible emissions of greenhouse gases (Alder and Hostetler 2014, p. 2). Climate projections for the cactus area include a 5 to 6 percent increase in maximum temperature (up to 4 °C (7.2 °F)), an 11 percent decrease in precipitation, and a 25 percent increase in evaporative deficit over the next 25 years (National Climate Change Viewer, Four County Data, http://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp, accessed May 15, 2016).

    Effects due to climate change also include an increase in atmospheric carbon dioxide, which is commonly associated with increased temperatures and the greenhouse effect. This increased carbon dioxide directly affects plant photosynthesis (Huxman and Scott 2007, p. 28). At the plant level, adapting to drought involves the ability to balance carbon sequestration (the uptake and storage of carbon) and carbon respiration (efflux back into the atmosphere), while also maintaining sustainable evapotranspiration rates (Huxman and Scott 2007, p. 28). Adaptation would also require a plant to change its phenology (timing of life cycle events) to coincide successfully with extreme shifts in temperature, precipitation, and soil moisture (Walther et al. 2002, p. 389), which are all part of the evapotranspiration equation. The potential for rapid climate change, which is predicted for the future, could pose significant challenges for plants because they may not be able to adjust their phenology or photosynthetic mechanisms quickly enough.

    Cacti have a unique photosynthetic pathway referred to as crassulacean acid metabolism (CAM), which is most effective in low soil moisture, intense sunlight, and high daytime temperature conditions, and is considered to be a desert adaptation (Nefzaoui et al. 2014, p. 121). CAM plants may have an advantage under these drier condition scenarios due to the effects of climate change (Reyes-Garcia and Andrade 2009, p. 755). If atypical cactus mortality occurs, this could be evidence that a climatic severity threshold may have been crossed even for this well-adapted CAM plant.

    Munson et al. (2013, p. 2,030) forecasts declines in vegetative cover including cacti in Chihuahuan Desert habitats due to climate change. This is because growing seasons are becoming longer and warmer and in many regions (Kunkel 2013, p. 1) including the Southwest (Cayan et al. 2001, p. 399; Easterling 2002, p. 1329) due to the effects of climate change. This trend of longer and warmer growing seasons is projected to continue in the current climate change assessments. Earlier soil moisture stress would result in decreased flowering and reproduction for Echinocereus fendleri var. kuenzleri. Based on the limited distribution of this cactus, we consider drought and climate change an ongoing, yet not imminent, threat to Echinocereus fendleri var. kuenzleri.

    Combination of Threats

    When stressors occur together, one may exacerbate the effects of another, causing effects not accounted for when stressors are analyzed individually. Synergistic or cumulative effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of Echinocereus fendleri var. kuenzleri populations. Livestock grazing interacts with the effect of natural fire frequency within Echinocereus fendleri var. kuenzleri habitats. Removal of fine fuels by grazing animals reduces the ability of a fire to start and carry through the landscape. Land managers have in the past followed an aggressive wildfire suppression program. The result is a disruption of the natural fire regime and an increase of woody vegetation in grassland and savanna habitats. Land managers presently see the need to reintroduce low intensity fire into these habitats for the purpose of restoring grasslands and increasing forage for livestock production. Impacts of these interacting processes to E. fendleri var. kuenzleri can be variable, and will need to be studied and management will be needed to provide the best outcome for the cactus.

    Another threat combination can occur between drought, climate change effects, and predation. Although predation has not been a monitored factor for Echinocereus fendleri var. kuenzleri, in the case of other native small cacti, evidence of increased herbivory of adult cacti and seedlings by insect and mammalian predators has been observed during drought, most likely due to increases in thirst and decreases in other available forage. Rodents consume cacti for water, especially in times of drought (Riegel 1941, p. 96; Orr et al. 2015, p. 1058). Herbivory of cacti can also increase following damage to protective spines, such as post-fire. The rate of insect herbivory may increase due to warmer winters in recent decades (Rutman 2007, p. 6). Cacti already stressed from prolonged drought are more susceptible to insect attack and disease, which can cause declines in cactus populations.

    Overall Summary of Factors Affecting E. fendleri var. kuenzleri

    Alterations to the fire regime, including implementation of agency guidance to suppress wildland fires and changes to livestock grazing strategies, are likely the most immediate threatening factors to Echinocereus fendleri var. kuenzleri at this time. Staff at BLM and Fort Stanton are actively managing to keep fire from directly impacting Echinocereus fendleri var. kuenzleri individuals during prescribed burns. They are also implementing projects to remove pinyon and juniper trees thereby reducing heavy fuel loads. This management is expected to continue into the future. Increased emphasis on prescribed fire could mimic the natural historical fire regime and reduce the likelihood of damaging wildland fire in heavy fuel load areas. A comprehensive management plan that would guide standardized monitoring and address protection of the cactus for future prescribed fire programs may best be implemented after a species status assessment is conducted for E. f. var. kuenzleri, when more collaborators combine ideas of best adaptive management. This management plan will prove useful in addressing the remaining threats to the cactus.

    The effects of climate change may cause extended periods of drought and alter blooming seasons, thus reducing the chances of successful reproduction cycles. Due to the rugged locations of occupied habitats, impacts from surface development (road building and maintenance, urban development) are not considered major threats to the existence of Echinocereus fendleri var. kuenzleri. Collection of Echinocereus fendleri var. kuenzleri is no longer considered a major threat due to successful propagation in legal cactus trade and commercial availability of this cactus. In addition, taxonomic uncertainties have been resolved at a regional level.

    Finding

    The determination of whether a species is endangered or threatened under the Act is based on whether a species is in danger of extinction or likely to become so because of any of five factors: (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. As required by section 4(a)(1) of the Act, we conducted a review of the status of this plant and assessed the five factors to evaluate whether Echinocereus fendleri var. kuenzleri is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by this cactus. We reviewed information presented in the 2012 petition, information available in our files and gathered through our 90-day finding in response to this petition, and other available published and unpublished information.

    In considering factors that might constitute threats to a species, we must look beyond the exposure of the species to a factor to evaluate whether the species responds to the factor in a way that causes impacts to the species or is likely to cause impacts in the future. If a species responds negatively to such exposure, the factor may be a threat and, during the status review, our aim is to determine whether impacts are or will be of an intensity or magnitude to place the species at risk. The factor is a threat if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely affected could suffice. In sum, the mere identification of factors that could affect a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors act on the species to the point that the species meets the definition of an endangered or threatened species.

    The known range of Echinocereus fendleri var. kuenzleri consisted of a single population of approximately 200 individuals when we listed it as endangered. As such, it was perceived to be upon the brink of extinction. The most serious threat to such a small population would be the elimination of plants in the wild by commercial and hobbyist collectors. Subsequent information on the range and abundance of this cactus has significantly altered this perception. In reality, Echinocereus fendleri var. kuenzleri exists across a much broader geographic range in several populations. Increased survey efforts and habitat model development have resulted in more occupied habitat identified, leaving open the potential of finding even more Echinocereus fendleri var. kuenzleri plants. Protection under the Act and CITES has curtailed unauthorized take by collectors. Dry conditions and remote growing locations of Echinocereus fendleri var. kuenzleri have lessened the impacts of land use within occupied habitats, and most of these habitats have been determined to exist on Federal lands. Thus, threats of collection and development have been diminished. Therefore, Echinocereus fendleri var. kuenzleri is no longer in danger of extinction now. Although now known to be more widespread and abundant than previously thought, Echinocereus fendleri var. kuenzleri remains a relatively rare plant taxon. It occurs only on the lower slopes of Sacramento and Guadalupe Mountain ranges and is an uncommon plant within this limited geographic range. Populations are generally small and scattered, and some habitat that appears suitable is presently unoccupied. Threats remain related to its limited population numbers and distribution, to wild or prescribed fires, and to trampling and erosion from livestock grazing and fire. However, because nearly all of known occupied habitat falls on lands managed by Federal agencies, conservation of the species will continue by addressing potential fire and grazing threats.

    The recently published taxonomic determinations of Echinocereus fendleri var. kuenzleri status represent broad-brushed approaches that may not adequately address local variation. To establish the taxonomic status of Echinocereus fendleri var. kuenzleri, surveys are needed to determine the extent of interbreeding at the northern edge of the range and molecular research is needed to determine the genetic variation within E. fendleri. The controversy and lack of definitive data regarding the taxonomy of Echinocereus fendleri var. kuenzleri, combined with the limited distribution and actual population numbers, preclude a recommendation to delist based on taxonomic revision at this time.

    As a result of recent information, we know that there are 11 known populations of Echinocereus fendleri var. kuenzleri compared to only 2 that were known at the time of listing and these individuals are spread across a 100 miles of rocky, isolated habitat patches. Significant impacts at the time of listing such as over collection and residential development that could have resulted in the extirpation of all or parts of populations have been eliminated or reduced since listing. We conclude that the previously recognized impacts to E. fendleri var. kuenzleri from present or threatened destruction, modification, or curtailment of its habitat or range (specifically, residential development, road maintenance) (Factor A); overutilization for commercial, recreational, scientific, or educational purposes (Factor B); disease or predation (Factor C); and other natural or manmade factors affecting its continued existence (specifically, reproductive isolation) (Factor E) do not rise to a level of significance, either individually or in combination, such that the species is in danger of extinction now. However, there continues to be concern about the long term impacts of drought, catastrophic wildfire, and effects due to climate change throughout the range of the species. Climate change data indicate an increase in temperature and a decrease in precipitation within the occupied Echinocereus fendleri var. kuenzleri range over the next 25 years. We anticipate that effects due to climate change, fire, and increased drought, and the compounding effects of these threats, including any associated threats such as increased herbivory and predation, are anticipated to impact all of the populations. However, none of these is an imminent threat or at a magnitude such that the taxon warrants endangered status. We conclude that these same factors support the status of threatened, as the cactus is still likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

    In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by Echinocereus fendleri var. kuenzleri. After review of the information pertaining to the five factors, we find that the ongoing threats are not of sufficient imminence, intensity, or magnitude to indicate that E. fendleri var. kuenzleri is presently in danger of extinction throughout all of its range. Yet, due to threats with ongoing impacts, we find that E. fendleri var. kuenzleri is likely to become an endangered species within the foreseeable future throughout all of its range.

    Significant Portion of the Range Analysis

    On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered or threatened species and no SPR analysis will be required. Because we are proposing to reclassify the listing status of E. f. var. kuenzleri as a threatened species under the Act, we are not conducting an SPR analysis for this taxon.

    Effects of This Rule

    If this proposed rule is made final, it would revise 50 CFR 17.12(h) to reclassify Echinocereus fendleri var. kuenzleri from endangered to threatened on the List of Endangered and Threatened Plants. However, this reclassification does not significantly change the protections afforded this plant under the Act. Pursuant to section 7 of the Act, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of Echinocereus fendleri var. kuenzleri. The prohibitions of section 9 of the Act only apply directly to endangered species. However, the Service has extended most of these prohibitions to threatened plants through 50 CFR 17.71. The Act allows for the promulgation of a rule under section 4(d) that modifies the standard protections for threatened plants (found at 50 CFR 17.71); however no such rule is proposed here. In light of this, the prohibitions of 50 CFR 17.71 will apply for this species.

    As applicable, recovery actions directed at Echinocereus fendleri var. kuenzleri will continue to be implemented as outlined in the recovery plan for this taxon (Service 1985, entire). One of the primary actions will be to develop a species status assessment, upon which we will base a revised recovery plan with delisting criteria for the cactus. Section 4(b)(6)(C) of the Act (16 U.S.C. 1533(b)(6)(C)) requires critical habitat to be designated concurrently with a final reclassification rule, unless it is not prudent or determinable. We will determine if critical habitat is prudent and determinable, and publish proposed critical habitat as necessary.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the names of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act

    We determined we do not need to prepare an environmental assessment or an environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), in connection with regulations adopted 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).

    References Cited

    A complete list of all references cited in this proposed rule is available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0137 or upon request from the Field Supervisor, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Author

    The primary author of this proposed rule is the Southwest Regional Office in Albuquerque, New Mexico, in coordination with the New Mexico Ecological Services Field Office in Albuquerque, New Mexico (see 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 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; 4201-4245, unless otherwise noted.

    2. Amend § 17.12(h) by revising the entry for “Echinocereus fendleri var. kuenzleri” under FLOWERING PLANTS in the List of Endangered and Threatened Plants to read as follows:
    § 17.12 Endangered and threatened plants.

    (h) * * *

    Scientific name Common name Where listed Status Listing citations and applicable rules FLOWERING PLANTS *         *         *         *         *         *         * Echinocereus fendleri var. kuenzleri Kuenzler hedgehog cactus Wherever found T 44 FR 61924, 10/26/1979; [Federal Register citation of the final rule]. *         *         *         *         *         *         *
    Dated: December 22, 2016. James W. Kurth, Acting Director, Fish and Wildlife Service.
    [FR Doc. 2016-31763 Filed 1-5-17; 8:45 am] BILLING CODE 4333-15-P
    82 4 Friday, January 6, 2017 Notices DEPARTMENT OF AGRICULTURE Forest Service Information Collection; Significant Cave Nomination AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice; request for comment.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on a new information collection, Significant Cave Nominations under the Federal Cave Resources Protection Act (FCRPA).

    DATES:

    Comments must be received in writing on or before March 7, 2017 to be assured of consideration. Comments received after that date will be considered to the extent practicable.

    ADDRESSES:

    Comments concerning this notice should be addressed to Johanna Kovarik, Minerals and Geology Management, 740 Simms Street, Golden, CO 80401. Comments also may be submitted via facsimile to (303) 275-5122 or by email to: [email protected] The public may inspect comments received at 740 Simms Street, Golden, CO 80401 during normal business hours. Visitors are encouraged to call ahead to facilitate entry to the building by calling (303) 275-5350.

    FOR FURTHER INFORMATION CONTACT:

    Johanna Kovarik, Minerals and Geology Management, 303-275-5378. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.

    SUPPLEMENTARY INFORMATION:

    Title: Significant Cave Nomination.

    OMB Number: 0596-New.

    Expiration Date of Approval: Not applicable, new request.

    Type of Request: New.

    Abstract: The information covered in this request applies to caves on Federal lands administered by the Department of Agriculture, U.S. Forest Service. The U.S. Forest Service, in accordance with the FCRPA, collects information from appropriate private sector interests, including “cavers,” in order to update a list of significant caves that are under the jurisdiction of the agencies listed above. The U.S. Forest Service also processes requests for confidential information regarding significant caves. While the FCRPA does not define what “significant” means, it does require the Secretaries of Agriculture and Interior to issue regulations that define criteria for identification of significant caves. This criteria can be found at 36 CFR 290.3. This information enables the U.S. Forest Service to comply with the FCRPA (16 U.S.C. 4301-4310).

    Estimate of Annual Burden per Response: 11 hours.

    Type of Respondents: Individuals and Households.

    Estimated Annual Number of Respondents: 10.

    Estimated Annual Number of Responses per Respondent: One.

    Estimated Total Annual Burden on Respondents: 110.

    Comment is Invited:

    Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, 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 respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.

    Dated: December 22, 2016. Glenn Casamassa, Associate Deputy Chief, National Forest System.
    [FR Doc. 2017-00061 Filed 1-5-17; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Notice of Availability of the Atlantic Coast Pipeline Project and Supply Header Project Draft Environmental Impact Statement and the Forest Service Draft of Associated Land and Resource Management Plan Amendments AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of availability.

    SUMMARY:

    In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended; the Federal Land Policy and Management Act of 1976, as amended; and the National Forest Management Act of 1976 (NFMA), as amended; the Forest Service (FS), U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (USACE), U.S. Fish and Wildlife Service (FWS) Great Dismal Swamp, West Virginia Division of Natural Resources (WVDNR), and West Virginia Department of Environmental Protection (WVDEP) have participated as cooperating agencies with the Federal Energy Regulatory Commission (FERC) in the preparation of the Atlantic Coast Pipeline (ACP) and Supply Header Project (SHP) Draft Environmental Impact Statement (EIS). The Draft EIS addresses: (1) The impacts of these projects, (2) the associated draft amendments to the Land and Resource Management Plans (LRMPs) for the Monongahela National Forest (MNF) and George Washington National Forest (GWNF), and (3) the proposal for authorization from the Forest Service to construct, operate, maintain, and eventually decommission a natural gas transmission pipeline that crosses National Forest System (NFS) lands. With this agency-specific Notice of Availability, the FS is announcing the opening of the FERC comment period. Comments submitted to the FERC concerning FS actions need to be timely and specific, showing a direct relationship to the proposal and include supporting reasons.

    DATES:

    To ensure that comments will be considered, the FERC must receive written comments on the ACP and Supply Header Project Draft EIS within 90 days following the date of publication of the FERC Notice of Availability (NOA) for the draft EIS in the Federal Register. The FERC's NOA also lists public meetings where interested groups and individuals can attend and present oral comments on the draft EIS.

    ADDRESSES:

    You may submit comments related to the ACP and Supply Header Project Draft EIS, including any comments related to the FS consideration of the authorization of ACP to cross NFS lands and/or the FS consideration of LRMP amendments, to the FERC by any of the four methods listed below. The FERC encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or [email protected] Please carefully follow these instructions so that your comments are properly recorded.

    (1) You can file your comments electronically using the eComment feature on the FERC's Web site (www.ferc.gov) under the link to Documents and Filings. This is an easy method for submitting brief, text-only comments on a project;

    (2) You can file your comments electronically by using the eFiling feature on the FERC's Web site (www.ferc.gov) under the link to Documents and Filings. With eFiling, you can provide comments in a variety of formats by attaching them as a file with your submission. New eFiling users must first create an account by clicking on “eRegister.” If you are filing a comment on a particular project, please select “Comment on a Filing” as the filing type; or

    (3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket numbers (CP15-554-000 and CP15-554-001 for ACP) with your submission: Nathaniel J. Davis, Sr., Deputy Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.

    (4) In lieu of sending written or electronic comments, you can submit oral comments at any of the FERC-sponsored public sessions that are scheduled in the FERC Notice of Availability for the draft EIS.

    Your comments must reference the FERC Docket number for the Atlantic Coast Pipeline and Supply Header Project, L.P., Docket Nos. CP15-554-000 and CP15-554-001 (ACP), to be correctly attributed to this specific project. Copies of the ACP and Supply Header Project Draft EIS are available for inspection in the offices of the Forest Supervisor for the Monongahela National Forest and the Forest Supervisor for the George Washington and Jefferson National Forests.

    FOR FURTHER INFORMATION CONTACT:

    Additional information about the projects is available from the FERC's Office of External Affairs at 866-208-FERC (3372), or on the FERC Web site (www.ferc.gov). On the FERC's Web site, go to “Documents & Filings,” click on the “eLibrary” link, click on “General Search” and enter the docket number CP15-554. Be sure you have selected an appropriate date range. For assistance, please contact FERC Online Support at [email protected], or toll free at 866-208-3676, or for TTY, contact 202-502-8659. The eLibrary link also provides access to the texts of formal documents issues by the FERC such as orders, notices, and rulemakings.

    SUPPLEMENTARY INFORMATION:

    This NOA is specific to the FS and provides notice that the agency has participated as a cooperating agency with FERC in the preparation of the ACP and Supply Header Project Draft EIS. The Atlantic Coast Pipeline route would cross about 21 miles of lands managed by the FS. More specifically, the pipeline route would cross 5.1 miles of lands managed by the Monongahela National Forest, in Pocahontas County, West Virginia and 15.9 miles of lands managed by the George Washington National Forest, in Highland, Bath, and Augusta counties, Virginia. The Supply Header Project would not affect the Monongahela or George Washington National Forests.

    The FERC is the NEPA Lead Federal Agency for the environmental analysis of the construction and operation of the proposed ACP and Supply Header Project. The FS is the federal agency responsible for authorizing this use and issuing special use permits for natural gas pipelines across NFS lands under its jurisdiction.

    Before issuing a Special Use permit (SUP) to construct, operate, maintain, and eventually decommission a natural gas transmission pipeline that crosses NFS lands, the FS would include any specific stipulations applicable to lands, facilities, water bodies, and easements for inclusion in the SUP.

    In order for the potential actions to be consistent with the respective LRMPs (36 CFR 219.15), the FS would need to make several amendments to the LRMPs before the FS could authorize the use and issue a SUP.

    The FERC's draft EIS includes the consideration of a FS authorization across NFS lands and the associated FS LRMP amendments. The FS intends to adopt FERC's EIS for agency decisions if the analysis provides sufficient evidence to support the agency's decisions and the agency is satisfied that agency comments and suggestions have been addressed.

    “Project-specific plan amendments” would be needed to deviate from the existing forest plan standards for the construction and operation of the ACP. These amendments are considered project-specific amendments because they would not change FS requirements for other projects or authorize any other actions. Additionally, if the proposed route was authorized and a SUP issued, the GWNF LRMP would need to be amended to change the current management prescriptions in the pipeline's operational corridor to Management Prescription Area (Rx) 5C-Designated Utility Corridors. The MNF does not have LRMP direction that would require a similar plan amendment to reallocate management prescriptions. This amendment is considered a “plan-level” amendment and would change future management direction for the lands reallocated to the new management prescription. The FS has also identified potential amendments that may be required, pending survey information and analyses that are not currently available.

    The following amendments have been proposed by the FS as part of the proposed action in the FERC draft EIS:

    Monongahela National Forest

    The type of amendment applicable to the MNF would be a project-specific amendment. This amendment would not change FS requirements for other projects or authorize any other actions.

    Potential Amendment 1: The MNF LRMP may need to be amended to allow construction of the Atlantic Coast Pipeline to temporarily exceed standards identified under management direction for soils and water, specifically forest wide standards SW06 and SW07, provided that design criteria, mitigation measures, project requirements and/or monitoring activities agreed upon by the Forest Service are implemented as needed to achieve adequate slope and soil stability.

    Other potential amendments may be needed pending the outcome of ongoing analyses and development of project design and mitigation.

    George Washington National Forest

    The first type of LRMP amendment applicable to the GWNF would be a plan-level amendment that would change land allocations. This would change future management direction for the lands reallocated to the new management prescription (Rx) and is required by LRMP Standards FW-243 and FW-244.

    Proposed Amendment 1: The LRMP would be amended to reallocate 102.3 acres to the Management Prescription 5C-Designated Utility Corridors from these Rxs: 7E1-Dispersed Recreation Areas (7 acres), and 13-Mosaics of Habitat (95 acres). Management Prescription 11-Riparian Corridors would remain embedded within the new Rx 5C area.

    Rx 5C-Designated Utility Corridors contain special uses which serve a public benefit by providing a reliable supply of electricity, natural gas, or water essential to local, regional, and national economies. The new Rx 5C land allocation would be 53.5 feet wide, the width of the final operational right-of-way. The area would not cross into the Rx 4A-Appalachian National Scenic Area but would stop and start at the existing Rx 4A boundary. The applicable area within Rx4A would continue to be managed for the Appalachian National Scenic Trail.

    The second type of amendment applicable to the GWNF would be a project-specific amendment that would apply only to the construction and operation of this pipeline. The following standards would require a temporary waiver to allow the project to proceed. These amendments would not change LRMP requirements for other projects or authorize any other actions.

    Proposed Amendment 2: The LRMP would be amended to allow construction of the Atlantic Coast Pipeline to exceed restrictions on soil conditions and riparian corridor conditions as described in LRMP Standards FW-5, FW-15, FW-16, FW-17 and 11-019, provided that mitigation measures or project requirements agreed upon by the Forest Service are implemented as needed.

    Proposed Amendment 3: The LRMP would be amended to allow the Atlantic Coast Pipeline to cross the Appalachian National Scenic Trail in Augusta County, Virginia. (reference LRMP Standard 4A-025)

    Potential Amendment 4: The LRMP may need to be amended to allow removal of old growth trees within the construction corridor of the Atlantic Coast Pipeline. (reference LRMP Standard FW-85)

    Potential Amendment 5: The LRMP may need to be amended to allow major reconstruction of a National Forest System Road within Rx 2C3 area to provide access for pipeline construction. This is contingent on the final location of access roads. (reference LRMP Standard 2C3-015)

    Potential Amendment 6: The LRMP may need to be amended to allow the ACP to not immediately meet Scenic Integrity Objectives; however, mitigation measures, including vegetation management and restoration actions, are expected to improve quality over an extended timeframe. (reference LRMP Standard FW-182)

    The FS will prepare separate Records of Decisions for the authorization decision and for the plan amendments decisions, after issuance of the FERC final EIS. The FS decision to authorize ACP will be subject to FS predecisional administrative review procedures established in 36 CFR 218. The MNF Potential Amendment 1, GWNF Proposed Amendments 2 and 3 and Potential Amendments 4, 5 and 6 were developed in accordance to 36 CFR 219 (2012) regulations but will be subject to the administrative review procedures under 36 CFR 218 regulations Subparts A and B, per 36 CFR 219.59(b). GWNF Proposed Amendment 1 was developed in accordance to 36 CFR 219 (2012 version) regulations and will be subject to the administrative review procedures under 36 CFR 219 Subpart B. Refer to the applicable administrative review regulations for eligibility.

    The FS is requesting public comments on the authorization of ACP on NFS lands and the draft proposed and potential amendments of the LRMPs that would allow ACP to cross the MNF and GWNF. All comments must be submitted to the FERC, the Lead Federal Agency, within 90 days following the date of publication of the FERC Notice of Availability for their draft EIS in the Federal Register. Refer to Dockets CP15-554-000 and CP15-544-001 (ACP) in all correspondence to ensure that your comments are correctly filed in the record. You may submit comments to the FERC using one of the methods listed in the ADDRESSES section above. Only those who submit timely and specific written comments regarding the proposed project during a public comment period are eligible to file an objection with the FS. Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that the entire text of your comments—including your personal identifying information—would be publicly available through the FERC eLibrary system if you file your comments with the Secretary of the FERC.

    Responsible Officials for Fs Authorization of Use To Issue a Special Use Permit:

    The Regional Forester Eastern Region for NFS lands on the Monongahela National Forest and the Regional Forester Southern Region for NFS lands on the George Washington National Forest are the Responsible Officials.

    Responsible Officials for Fs LRMP Amendments:

    The Forest Supervisor for the Monongahela National Forest is the Responsible Official for the LRMP Amendment on the Monongahela National Forest.

    The Forest Supervisor for the George Washington and Jefferson National Forests is the Responsible Official for the LRMP Amendments on the George Washington National Forest.

    Lead Responsible Official for Coordinating Between Regions and Forests for the Project:

    The Forest Supervisor for the Monongahela National Forest.

    Authority:

    40 CFR 1506.6, 40 CFR 1506.10.

    Dated: December 29, 2016. Clyde Thompson, Forest Supervisor.
    [FR Doc. 2017-00008 Filed 1-5-17; 8:45 am] BILLING CODE 3411-15-P
    COMMISSION ON CIVIL RIGHTS Sunshine Act Meeting Notice AGENCY:

    United States Commission on Civil Rights.

    ACTION:

    Notice of Commission Business 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 Business Meeting of the U.S. Commission on Civil Rights will be convened at 10 a.m. on Friday, January 13, 2017.

    DATES:

    Friday, January 13, 2017, at 10 a.m. EST.

    ADDRESSES:

    National Place Building, 1331 Pennsylvania Ave. NW., 11th Floor, Suite 1150, Washington, DC 20425 (Entrance on F Street NW.).

    FOR FURTHER INFORMATION CONTACT:

    Brian Walch, Communications and Public Engagement Director. Telephone: (202) 376-8371; TTY: (202) 376-8116; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This business meeting is open to the public. If you would like to listen to the business meeting, please contact the above for the call-in information.

    Hearing-impaired persons who will attend the briefing and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376-8105 or at [email protected] at least three business days before the scheduled date of the meeting.

    Meeting Agenda I. Approval of Agenda II. Business Meeting A. Program Planning • OCRE Program Planning Update • Update on Status of 60th Anniversary Plans B. State Advisory Committees • Presentation by Indiana SAC Chair Diane Clements-Boyd and SAC member Carlton Waterhouse of report on School-to-Prison Pipeline in Indiana C. Management and Operations • Staff Director's Report • Staff Changes III. Adjourn Meeting Dated: January 4, 2017. Brian Walch, Director, Communications and Public Engagement.
    [FR Doc. 2017-00142 Filed 1-4-17; 4:15 pm] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE [Docket No.: 161229999-6999-01] Commerce Alternative Personnel System AGENCY:

    Office of Administration, Office of Human Resources Management, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    This notice announces the expansion of employee coverage under the Commerce Alternative Personnel System, formerly the Department of Commerce Personnel Management Demonstration Project, published in the Federal Register on December 24, 1997. This coverage is extended to include employees located in the Enterprise Services Organization (ESO), a new organization, in the Office of the Secretary (OS), Office of the Deputy Secretary.

    DATES:

    This notice expanding and modifying the Commerce Alternative Personnel System is effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Department of Commerce—Sandra Thompson, U.S. Department of Commerce, 14th and Constitution Avenue NW., Room 51020, Washington, DC 20230, (202) 482-0056 or Valerie Smith at (202) 482-0272.

    SUPPLEMENTARY INFORMATION: 1. Background

    The Office of Personnel Management (OPM) approved the Department of Commerce (DoC) demonstration project for an alternative personnel management system, and published the final plan in the Federal Register on Wednesday, December 24, 1997 (62 FR 67434). The demonstration project was designed to simplify current classification systems for greater flexibility in classifying work and paying employees; establish a performance management and rewards system for improving individual and organizational performance; and improve recruiting and examining to attract highly-qualified candidates. The purpose of the project was to strengthen the contribution of human resources management and test whether the same innovations conducted under the National Institute of Standards and Technology alternative personnel management system would produce similarly successful results in other DoC environments. The project was implemented on March 29, 1998. The project plan has been modified eleven times to clarify certain DoC Demonstration Project authorities, and to extend and expand the project: 64 FR 52810 (September 30, 1999); 68 FR 47948 (August 12, 2003); 68 FR 54505 (September 17, 2003); 70 FR 38732 (July 5, 2005); 71 FR 25615 (May 1, 2006); 71 FR 50950 (August 28, 2006); 74 FR 22728 (May 14, 2009); 80 FR 25 (January 2, 2015); 81 FR 20322 (April 7, 2016); 81 FR 40653 (June 22, 2016); 81 FR 54747 (August 17, 2016). With the passage of the Consolidated Appropriations Act, 2008, Public Law 110-161, on December 26, 2007, the project was made permanent (extended indefinitely) and renamed the Commerce Alternative Personnel System (CAPS).

    CAPS provides for modifications to be made as experience is gained, results are analyzed, and conclusions are reached on how the system is working. This notice announces that the DoC expands CAPS to include non-bargaining unit employees in the Enterprise Services Organization (ESO) in all duty locations, as a participating organization. The ESO will hire new employees and convert reassigned employees to career paths and occupational series already established under CAPS, requiring no additional series to be added to accommodate the expansion.

    The DoC will follow the CAPS plan as published in the Federal Register on December 24, 1997, and subsequent modifications as listed in the Background Section of this notice.

    Kevin E. Mahoney, Director for Human Resources Management and Chief Human Capital Officer. Table of Contents I. Executive Summary II. Basis for CAPS Expansion III. Changes to the Project Plan I. Executive Summary

    CAPS is designed to (1) improve hiring and allow DoC to compete more effectively for high-quality candidates through direct hiring, selective use of higher entry salaries, and selective use of recruitment incentives; (2) motivate and retain staff through higher pay potential, pay-for-performance, more responsive personnel systems, and selective use of retention incentives; (3) strengthen the manager's role in personnel management through delegation of personnel authorities; and (4) increase the efficiency of personnel systems through the installation of a simpler and more flexible classification system based on pay banding through reduction of guidelines, steps, and paperwork in classification, hiring, and other personnel systems, and through automation.

    The current participating organizations include 7 offices of the Chief Financial Officer/Assistant Secretary for Administration in the Office of the Secretary; the Bureau of Economic Analysis; 2 units of the National Telecommunications and Information Administration (NTIA): the Institute for Telecommunication Sciences and the First Responder Network Authority (an independent authority within NTIA); and 12 units of the National Oceanic and Atmospheric Administration: Office of Oceanic and Atmospheric Research, National Marine Fisheries Service, the National Environmental Satellite, Data, and Information Service, National Weather Service—Space Environment Center, National Ocean Service, Program Planning and Integration Office, Office of the Under Secretary, Marine and Aviation Operations, Office of the Chief Administrative Officer, Office of the Chief Financial Officer, the Workforce Management Office, and the Office of the Chief Information Officer.

    This amendment modifies the December 24, 1997, Federal Register notice. Specifically, it expands DoC CAPS to include the ESO.

    II. Basis for CAPS Expansion A. Purpose

    CAPS is designed to provide managers at the lowest organizational level the authority, control, and flexibility to recruit, retain, develop, recognize, and motivate its workforce, while ensuring adequate accountability and oversight.

    The ESO is a new organization designed to deliver common business support and mission-enabling services in the functional areas of human resources, acquisition, information technology financial management, and other areas as determined necessary. The mission of the ESO is to: Enhance customer experience through the efficient delivery of high-quality mission-enabling services; increase service transparency and accountability; and enable employees, currently performing these functions, to dedicate more time to the unique mission needs of their organization. The expansion of CAPS coverage to include the ESO, should improve the organization's ability to recruit and retain a high-quality workforce to meet the organization's mission.

    DoC's CAPS allows for modifications of procedures if no new waiver from law or regulation is added. Given that this expansion and modification is in accordance with existing law and regulation and CAPS is a permanent alternative personnel system, the DoC is authorized to make the changes described in this notice.

    B. Participating Employees

    Employee notification of this expansion will be accomplished by providing employees and managers electronic access to all CAPS policies and procedures, including the eleven previous Federal Register Notices. A copy of this Federal Register notice will also be accessible electronically upon approval. Supervisor training and informational briefings for employees will be conducted as the ESO undergoes full transition over a period of a few years.

    III. Changes to the Project Plan

    The CAPS at DoC, published in the Federal Register on December 24, 1997 (62 FR 67434), is amended as follows:

    1. The following organization will be added to the project plan, Section II D—Participating Organizations

    Office of the Secretary (OS), Office of the Deputy Secretary, Enterprise Services Organization (ESO)
    [FR Doc. 2017-00057 Filed 1-5-17; 8:45 am] BILLING CODE 3510-EA-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-085-2016] Foreign-Trade Zone (FTZ) 76—Danbury, Connecticut Notification of Proposed Production Activity; MannKind Corporation, (Fumaryl Diketopiperazone (FDKP) Carrier/Receptor Powder), Danbury, Connecticut

    MannKind Corporation (MannKind) submitted a notification of proposed production activity to the FTZ Board for its facility in Danbury, Connecticut within Subzone 76B. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on December 21, 2016.

    MannKind currently has authority to use the facility for the production of Technosphere Insulin®, an inhalable insulin made by a combination of imported fumaryl diketopiperazone (FDKP) and domestic material active ingredients. MannKind's current request would add a finished product to the scope of authority. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt MannKind from customs duty payments on the foreign-status components used in export production. On its domestic sales, MannKind would be able to choose the duty rate during customs entry procedures that applies to FDKP carrier/receptor powder (duty rate 6.5%) for the foreign-status components and materials in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is February 15, 2017.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Juanita H. Chen at [email protected] or (202) 482-1378.

    Dated: December 28, 2016. Elizabeth Whiteman, Acting Executive Secretary.
    [FR Doc. 2016-32034 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Dane Francisco Delgado, Inmate Number: 60114-379, Eden, Correctional Institution, P.O. Box 605, Eden, TX 76837; Order Denying Export Privileges

    On November 4, 2014, in the U.S. District Court for the Southern District of Texas, Dane Francisco Delgado (“Delgado”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Delgado knowingly and willfully conspired with persons known and unknown to export, furnish, and cause to be exported from the United States to Mexico defense articles designated on the United States Munitions List without having first obtained from the Department of State a license or written authorization for such export. Delgado was sentenced to 60 months in prison, three years of supervised release, and a $100 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the Export Administration Act (“EAA”), the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2016). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 4, 2016 (81 FR 52587 (Aug. 8, 2016)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)).

    BIS has received notice of Delgado's conviction for violating the AECA, and has provided notice and an opportunity for Delgado to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has received a submission from Delgado.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Delgado's export privileges under the Regulations for a period of 10 years from the date of Delgado's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Delgado had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until November 4, 2024, Dane Francisco Delgado, with a last known address of Inmate Number: 60114-379, Eden, Correctional Institution, P.O. Box 605, Eden, TX 76837, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, License Exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Delgado by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Delgado may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to the Delgado. This Order shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until November 4, 2024.

    Issued this 29th day of December, 2016. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-00015 Filed 1-5-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Robert Luba, Inmate Number: 65986-050, USP Canaan, U.S. Penitentiary, Satellite Camp, P.O. Box 200, Waymart, PA 18472; Order Denying Export Privileges

    On April 25, 2016, in the U.S. District Court for the District of New Jersey, Robert Luba (“Luba”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Luba knowingly and willfully exported and caused to be exported from the United States to India a defense article, that is, the technical drawing for the NSSN Class Submarine, Torpedo Tube, Open Breech Door, Gagging Collar A, Drawing Number 7072856, which was designated as a defense article on the United States Munitions List, without having first obtained from the Department of State a license for such export or written authorization for such export. Luba was sentenced six months in prison, three years of supervised release, $173,736.67 in restituition, and a $200 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the Export Administration Act (“EAA”), the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2016). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 4, 2016 (81 FR 52587 (Aug. 8, 2016)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)).

    BIS has received notice of Luba's conviction for violating the AECA, and has provided notice and an opportunity for Luba to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Luba.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Luba's export privileges under the Regulations for a period of 10 years from the date of Luba's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Luba had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until April 25, 2026, Robert Luba, with a last known address of Inmate Number: 65986-050, USP Canaan, U.S. Penitentiary, Satellite Camp, P.O. Box 200, Waymart, PA 18472, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, License Exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Luba by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Luba may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to the Luba. This Order shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until April 25, 2026.

    Dated: December 29, 2016. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-00007 Filed 1-5-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Kamran Ashfaq Malik, Inmate Number: 57841-037, FCI Fort Dix, Federal Correctional Institution, P.O. Box 2000, Joint Base MDL, NJ 08640; Order Denying Export Privileges

    On June 29, 2015, in the U.S. District Court for the District of Maryland, Kamran Ashfaq Malik (“Malik”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Malik knowingly and willfully exported and caused the exportation of firearm parts and accessories designated as defense articles in Category I of the United States Munitions List, to wit: A .223 caliber rifle lower receiver, a .334 caliber rifle lower receiver, two .223 caliber rifle bolt carriers, and two .223 10 round magazines, from the United States and destined for Pakistan without having first obtained the required licenses or authorizations from the Department of State. Malik was sentenced to 24 months in prison, three years of supervised release, and a $100 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the Export Administration Act (“EAA”), the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2016). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 4, 2016 (81 FR 52,587 (Aug. 8, 2016)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)).

    BIS has received notice of Malik's conviction for violating the AECA, and has provided notice and an opportunity for Malik to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Malik.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Malik's export privileges under the Regulations for a period of five years from the date of Malik's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Malik had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until June 29, 2020, Kamran Ashfaq Malik, with a last known address of Inmate Number: 57841-037, FCI Fort Dix, Federal Correctional Institution, P.O. Box 2000, Joint Base MDL, NJ 08640, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, License Exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Malik by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Malik may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to the Malik. This Order shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until June 29, 2020.

    Issued this 29th day of December, 2016. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-00016 Filed 1-5-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-560-823, C-560-824, A-570-958, C-570-959] Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From Indonesia and the People's Republic of China: Continuation of Antidumping and Countervailing Duty Orders AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC) that revocation of the antidumping duty (AD) and countervailing duty (CVD) orders on certain coated paper suitable for high-quality print graphics using sheet-fed presses (coated paper) from Indonesia and the People's Republic of China (PRC) would be likely to lead to continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, the Department is publishing a notice of continuation of the AD and CVD orders.

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Terre Keaton Stefanova at (202) 482-1280 (AD orders), Jackie Arrowsmith at (202) 482-5255 (Indonesia CVD order), or Mark Kennedy at (202) 482-7883 (PRC CVD order), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On October 1, 2015, the Department initiated 1 and the ITC instituted 2 five-year (sunset) reviews of the AD and CVD orders on coated paper from Indonesia and the PRC, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). As a result of its reviews, the Department determined that revocation of the AD orders on coated paper from Indonesia and the PRC would likely lead to continuation or recurrence of dumping,3 and that revocation of the CVD orders would likely lead to continuation or recurrence of countervailable subsidies.4 The Department, therefore, notified the ITC of the magnitude of the margins of dumping and net countervailable subsidy rates likely to prevail were the AD and CVD orders revoked.5

    1See Initiation of Five-Year (“Sunset”) Reviews, 80 FR 59133 (October 1, 2015).

    2See Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from China and Indonesia, 80 FR 59189 (October 1, 2015).

    3See Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from Indonesia and the People's Republic of China: Final Results of Expedited First Sunset Reviews of the Antidumping Duty Orders, 81 FR 907 (January 8, 2016) (Dumping Final).

    4See Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from Indonesia: Final Results of Expedited First Sunset Review of the Countervailing Duty Order, 81 FR 6234 (February 5, 2016); and Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses From the People's Republic of China: Final Results of Expedited First Sunset Review of the Countervailing Duty Order, 81 FR 7081 (February 10, 2016).

    5Id. and Dumping Final.

    On December 29, 2016, the ITC published its determinations, pursuant to sections 751(c) and 752 of the Act, that revocation of the AD and CVD orders on coated paper from Indonesia and the PRC would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.6

    6See Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from China and Indonesia; Determination, 81 FR 96044 (December 29, 2016). See also Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from China and Indonesia, Inv. Nos. 701-TA-470-471 and 731-TA-1169-1170 (Review), USITC Publication 4656, December 2016.

    Scope of the Orders

    The scope of the orders cover certain coated paper and paperboard 7 in sheets suitable for high quality print graphics using sheet-fed presses; coated on one or both sides with kaolin (China or other clay), calcium carbonate, titanium dioxide, and/or other inorganic substances; with or without a binder; having a GE brightness level of 80 or higher,8 weighing not more than 340 grams per square meter; whether gloss grade, satin grade, matte grade, dull grade, or any other grade of finish; whether or not surface-colored, surface-decorated, printed (except as described below), embossed, or perforated; and irrespective of dimensions (Certain Coated Paper).

    7 “ `Paperboard' refers to Certain Coated Paper that is heavier, thicker and more rigid than coated paper which otherwise meets the product description. In the context of Certain Coated Paper, paperboard typically is referred to as `cover,' to distinguish it from `text.' ”

    8 One of the key measurements of any grade of paper is brightness. Generally speaking, the brighter the paper the better the contrast between the paper and the ink. Brightness is measured using a GE Reflectance Scale, which measures the reflection of light off of a grade of paper. One is the lowest reflection, or what would be given to a totally black grade, and 100 is the brightest measured grade.

    Certain Coated Paper includes (a) coated free sheet paper and paperboard that meets this scope definition; (b) coated groundwood paper and paperboard produced from bleached chemi-thermo-mechanical pulp (BCTMP) that meets this scope definition; and (c) any other coated paper and paperboard that meets this scope definition.

    Certain Coated Paper is typically (but not exclusively) used for printing multi-colored graphics for catalogues, books, magazines, envelopes, labels and wraps, greeting cards, and other commercial printing applications requiring high quality print graphics.

    Specifically excluded from the scope are imports of paper and paperboard printed with final content printed text or graphics.

    Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 4810.14.11, 4810.14.1900, 4810.14.2010, 4810.14.2090, 4810.14.5000, 4810.14.6000, 4810.14.70, 4810.19.1100, 4810.19.1900, 4810.19.2010, 4810.19.2090, 4810.22.1000, 4810.22.50, 4810.22.6000, 4810.22.70, 4810.29.1000, 4810.29.5000, 4810.29.6000, 4810.29.70, 4810.32, 4810.39 and 4810.92. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.

    Continuation of the Orders

    As a result of the determinations by the Department and the ITC that revocation of the AD and CVD orders would likely lead to a continuation or a recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD and CVD orders on coated paper from Indonesia and the PRC. U.S. Customs and Border Protection (CBP) will continue to collect AD and CVD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.

    The effective date of the continuation of the orders will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act, the Department intends to initiate the next five-year review of these orders not later than 30 days prior to the fifth anniversary of the effective date of continuation.

    Administrative Protective Order

    This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.

    These five-year (sunset) reviews and notice are in accordance with sections 751(c) and published pursuant to section 777(i) the Act and 19 CFR 351.218(f)(4).

    Dated: December 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-00029 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-533-807] Sulfanilic Acid From India: Final Results of Expedited Sunset Review of the Countervailing Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) finds that revocation of the countervailing duty (CVD) order on sulfanilic acid from India would likely lead to the continuation or recurrence of a countervailable subsidy at the levels indicated in the Final Results of Review section of this notice.

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    John Conniff, Office III, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1009.

    SUPPLEMENTARY INFORMATION: Background

    On September 1, 2016, the Department initiated this fourth sunset review of the CVD order on sulfanilic acid from India pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).1 The Department received a notice of intent to participate from Nation Ford Chemical Company (NFC) (domestic interested party), within the deadline specified in 19 CFR 351.218(d)(1)(i). The domestic interested party claimed interested party status under section 771(9)(C) of the Act as a domestic producer of sulfanilic acid in the United States.

    1See Initiation of Five-Year (Sunset) Review, 81 FR 60343 (September 1, 2016).

    The Department received an adequate substantive response from the domestic interested party within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). The Department also received a response from a domestic importer of sulfanilic acid, which we rejected as inadequate under 19 CFR 351.218(d)(3)(ii).2 As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited review of the CVD order.

    2See Memorandum from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, to Paul Piquado, Assistant Secretary for Enforcement and Compliance regarding, “Issues and Decision Memorandum for the Final Results of Expedited Sunset Review of the Countervailing Duty Order on Sulfanilic Acid from India,” dated concurrently with this notice (Sulfanilic Acid from India IDM) for more information on the reasons for the Department's rejection.

    Scope of the Order

    The merchandise covered by the CVD order are all grades of sulfanilic acid, which include technical (or crude) sulfanilic acid, refined (or purified) sulfanilic acid and sodium salt of sulfanilic acid (sodium sulfanilate).

    Sulfanilic acid is a synthetic organic chemical produced from the direct sulfonation of aniline with sulfuric acid. Sulfanilic acid is used as a raw material in the production of optical brighteners, food colors, specialty dyes, and concrete additives. The principal differences between the grades are the undesirable quantities of residual aniline and alkali insoluble materials present in the sulfanilic acid. All grades are available as dry free flowing powders.

    Technical sulfanilic acid contains 96 percent minimum sulfanilic acid, 1.0 percent maximum aniline, and 1.0 percent maximum alkali insoluble materials. Refined sulfanilic acid contains 98 percent minimum sulfanilic acid, 0.5 percent maximum aniline, and 0.25 percent maximum alkali insoluble materials. Sodium salt of sulfanilic acid (sodium sulfanilate) is a granular or crystalline material containing 75 percent minimum sulfanilic acid, 0.5 percent maximum aniline, and 0.25 percent maximum alkali insoluble materials based on the equivalent sulfanilic acid content.

    In response to a request from 3V Corporation, on May 5, 1999, the Department determined that sodium sulfanilate processed in Italy from sulfanilic acid produced in India is within the scope of the order. See Notice of Scope Rulings and Anticircumvention Inquiries, 65 FR 41957 (July 7, 2000).

    The merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 2921.42.22 and 2921.42.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.

    Analysis of Comments Received

    All issues raised in this review are addressed in the Issues and Decision Memorandum, which is dated concurrently with and adopted by this notice.3 The issues discussed in the Issues and Decision Memorandum include the likelihood of continuation or recurrence of a countervailable subsidy and the net countervailable subsidy likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this expedited sunset review and the corresponding recommendations in this public memorandum, which is on file electronically via the Enforcement and Compliance Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic versions of the Issues and Decision Memorandum are identical in content.

    3See Sulfanilic Acid from India IDM.

    Final Results of Review

    Pursuant to sections 752(b)(1) and (3) of the Act, we determine that revocation of the Order on sulfanilic acid from India would be likely to lead to continuation or recurrence of a net countervailable subsidy at the rate listed below: 4

    4Id.

    Manufacturers/producers/exporters Net
  • countervailable
  • subsidy rate
  • (percent)
  • All-Others 43.71
    Notification Regarding Administrative Protective Order

    This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    The Department is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218(e)(1)(ii)(c)(2).

    Dated: December 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. History of the Order III. Background IV. Scope V. Discussion of the Issues 1. Continuation or Recurrence of a Countervailable Subsidy 2. Net Countervailable Subsidy Likely To Prevail 3. Nature of the Subsidy V. Final Results of Review VI. Recommendation
    [FR Doc. 2017-00035 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-803] Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles From the People's Republic of China: Continuation of Antidumping Duty Orders AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC) that revocation of the antidumping duty (AD) orders on heavy forged hand tools, finished or unfinished, with or without handles (HFHTs) from the People's Republic of China (PRC) would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing this notice of continuation of the AD orders.

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Paul Walker, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202.482.0413.

    SUPPLEMENTARY INFORMATION: Background

    On February 19, 1991, the Department published the AD orders on HFHTs from the PRC.1 On July 1, 2016, the Department published the notice of initiation of the fourth sunset review of the AD orders on HFHTs from the PRC, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2 As a result of its review, the Department determined that revocation of the AD orders would likely lead to a continuation or recurrence of dumping.3 The Department, therefore, notified the ITC of the magnitude of the margins likely to prevail should the AD orders be revoked. On December 20, 2016, the ITC published its determination that revocation of the AD orders on HFHTs from the PRC would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time, pursuant to section 751(c) of the Act.4

    1See Antidumping Duty Orders: Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles From the People's Republic of China, 56 FR 6622 (February 19, 1991). There are four orders on HFHTs from the PRC: axes & adzes, bars & wedges, hammers & sledges, and picks & mattocks.

    2See Initiation of Five-Year (“Sunset”) Review, 81 FR 43185 (July 1, 2016).

    3See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles from the People's Republic of China: Final Results of the Expedited Fourth Sunset Review of the Antidumping Duty Orders, 81 FR 78777 (November 9, 2016) (Final Results) and accompanying Issues and Decision Memorandum.

    4See Heavy Forged Hand Tools from China: Investigation No. 731-TA-457-A-D (Fourth Review), USITC Publication 4654 (December 2016); see also Heavy Forged Hand Tools from China; Determination, 81 FR 92852 (December 20, 2016).

    Scope of the Orders

    The merchandise covered by these orders are hand tools comprising the following classes or kinds of merchandise: (1) Hammers and sledges with heads over 1.5 kg (3.33 pounds); (2) bars over 18 inches in length, track tools and wedges; (3) picks and mattocks; and (4) axes, adzes and similar hewing tools. Subject hand tools are manufactured through a hot forge operation in which steel is sheared to required length, heated to forging temperature, and formed to final shape on forging equipment using dies specific to the desired product shape and size. These products are classifiable under tariff article codes 8205.20.60, 8205.59.30, 8201.30.00, and 8201.40.60 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the AD orders is dispositive.5

    5See Final Results, and accompanying Issues and Decision Memorandum at “III. Scope of the Orders.”

    Continuation of the Orders

    As a result of the determinations by the Department and the ITC that revocation of the AD orders would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD orders on HFHTs from the PRC. United States Customs and Border Protection will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.

    The effective date of the continuation of the AD orders will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act, the Department intends to initiate the next five-year review of the AD orders not later than 30 days prior to the fifth anniversary of the effective date of continuation.

    This five-year sunset review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).

    Dated: December 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-00030 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-954] Magnesia Carbon Bricks From the People's Republic of China: Final Results and Partial Rescission of the Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce

    SUMMARY:

    On September 9, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty (AD) order on magnesia carbon bricks (MCBs) from the People's Republic of China (PRC) covering the period of review (POR) September 1, 2014, to August 31, 2015.1 This review covers 20 companies. We invited interested parties to comment on the Preliminary Results. No party filed comments or requested a hearing. Accordingly, the final results remain unchanged from the Preliminary Results.

    1See Magnesia Carbon Bricks from the People's Republic of China: Preliminary Results and Partial Rescission of the Antidumping Duty Administrative Review; 2014-2015, 81 FR 62472 (September 9, 2016) (Preliminary Results) and accompanying Preliminary Decision Memorandum.

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Kenneth Hawkins, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6491.

    SUPPLEMENTARY INFORMATION: Scope of the Order

    The scope of the order includes certain chemically-bonded (resin or pitch), MCBs with a magnesia component of at least 70 percent magnesia (MgO) by weight, regardless of the source of raw materials for the MgO, with carbon levels ranging from trace amounts to 30 percent by weight, regardless of enhancements (for example, MCBs can be enhanced with coating, grinding, tar impregnation or coking, high temperature heat treatments, anti-slip treatments or metal casing) and regardless of whether or not antioxidants are present (for example, antioxidants can be added to the mix from trace amounts to 15 percent by weight as various metals, metal alloys, and metal carbides). Certain MCBs that are the subject of this order are currently classifiable under subheadings 6902.10.1000, 6902.10.5000, 6815.91.0000, 6815.99.2000, and 6815.99.4000 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings are provided for convenience and customs purposes, the written description is dispositive.

    Final Results of Review

    As noted above, the Department received no comments concerning the Preliminary Results. As there are no changes from, or comments upon, the Preliminary Results, the Department finds that there is no reason to modify its analysis. Therefore, in these final results of review, we have rescinded the review with respect to Fedmet Resources Corporation, continued to find that Fengchi Imp. and Exp. Co., Ltd. of Haicheng City and RHI Refractories Liaoning, Co. Ltd. had no reviewable entries, and treated the remaining companies under review as part of the PRC-wide entity.2 The Department's policy regarding conditional review of the PRC-wide entity applies to this administrative review.3 Under this policy, the PRC-wide entity will not be under review unless a party specifically requests, or the Department self-initiates, a review of the entity. Because the PRC-wide entity is not under review, the entity's rate (i.e., 236.00 percent) is not subject to change.4

    2 For further details of the issues addressed in this proceeding, see the Preliminary Results and accompanying PDM which can be accessed directly at http://enforcement.trade.gov/frn/index.html.

    3See Antidumping Proceedings: Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Duty Proceedings, 78 FR 65963 (November 4, 2013).

    4See Certain Magnesia Carbon Bricks from the People's Republic of China: Final Results and Final Partial Rescission of the Antidumping Duty Administrative Review; 2012-2013, 80 FR 19961, 19962 (April 14, 2015).

    Assessment Rates

    The Department determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries in this review, in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1). The Department intends to issue assessment instructions directly to CBP 15 days after publication in the Federal Register of these final results of this administrative review.

    In accordance with the Department's assessment practice in NME cases, for entries that were not reported in the U.S. sales data submitted by companies individually examined during the administrative review, the Department will instruct CBP to liquidate such entries for the PRC-wide entity. Additionally, if the Department determines that an exporter had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (i.e., at that exporter's cash deposit rate) will be liquidated at the rate for the PRC-wide entity.5

    5 For a full discussion of this practice, see Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694, 65694-95 (October 24, 2011).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For any companies listed that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, then zero cash deposit will be required); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be that for the PRC-wide entity; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    Reimbursement of Duties

    This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation, which is subject to sanction.

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h).

    Dated: December 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-00027 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-896] Magnesium Metal From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2015-2016 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (“Department”) is conducting the administrative review of the antidumping duty order on magnesium metal from the People's Republic of China (“PRC”), covering the period April 1, 2015, through March 31, 2016. The Department preliminarily determines that Tianjin Magnesium International, Co., Ltd. (“TMI”) and Tianjin Magnesium Metal, Co., Ltd. (“TMM”) did not have reviewable entries during the period of review (“POR”). We invite interested parties to comment on these preliminary results.

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    James Terpstra or Brendan Quinn, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington DC 20230; telephone: (202) 482-3965 or (202) 482-5848, respectively.

    Background

    On April 1, 2016, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on magnesium metal from the PRC for the POR.1 On April 29, 2016, in response to a timely request from Petitioner,2 and in accordance with section 751(a) of the Tariff Act of 1930, as amended (the “Act”), and 19 CFR 351.221(c)(1)(i), we initiated an administrative review of the antidumping duty order on magnesium metal from the PRC with respect to TMI and TMM.3

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 81 FR 18826 (April 1, 2016).

    2See letter from U.S. Magnesium LLC (“Petitioner”), “Magnesium Metal from the People's Republic of China: Request for Administrative Review,” dated April 29, 2016.

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 FR 36268 (June 6, 2016).

    Scope of the Order

    The product covered by this order is magnesium metal from the PRC, which includes primary and secondary alloy magnesium metal, regardless of chemistry, raw material source, form, shape, or size. Magnesium is a metal or alloy containing by weight primarily the element magnesium. Primary magnesium is produced by decomposing raw materials into magnesium metal. Secondary magnesium is produced by recycling magnesium-based scrap into magnesium metal. The magnesium covered by this order includes blends of primary and secondary magnesium.

    The subject merchandise includes the following alloy magnesium metal products made from primary and/or secondary magnesium including, without limitation, magnesium cast into ingots, slabs, rounds, billets, and other shapes; magnesium ground, chipped, crushed, or machined into rasping, granules, turnings, chips, powder, briquettes, and other shapes; and products that contain 50 percent or greater, but less than 99.8 percent, magnesium, by weight, and that have been entered into the United States as conforming to an “ASTM Specification for Magnesium Alloy”4 and are thus outside the scope of the existing antidumping orders on magnesium from the PRC (generally referred to as “alloy” magnesium).

    4 The meaning of this term is the same as that used by the American Society for Testing and Materials in its Annual Book for ASTM Standards: Volume 01.02 Aluminum and Magnesium Alloys.

    The scope of this order excludes: (1) All forms of pure magnesium, including chemical combinations of magnesium and other material(s) in which the pure magnesium content is 50 percent or greater, but less than 99.8 percent, by weight, that do not conform to an “ASTM Specification for Magnesium Alloy” 5 ; (2) magnesium that is in liquid or molten form; and (3) mixtures containing 90 percent or less magnesium in granular or powder form by weight and one or more of certain non-magnesium granular materials to make magnesium-based reagent mixtures, including lime, calcium metal, calcium silicon, calcium carbide, calcium carbonate, carbon, slag coagulants, fluorspar, nephaline syenite, feldspar, alumina (Al203), calcium aluminate, soda ash, hydrocarbons, graphite, coke, silicon, rare earth metals/mischmetal, cryolite, silica/fly ash, magnesium oxide, periclase, ferroalloys, dolomite lime, and colemanite.6

    5 The material is already covered by existing antidumping orders. See Notice of Antidumping Duty Orders: Pure Magnesium from the People's Republic of China, the Russian Federation and Ukraine; Notice of Amended Final Determination of Sales at Less Than Fair Value: Antidumping Duty Investigation of Pure Magnesium From the Russian Federation, 60 FR 25691 (May 12, 1995); and Antidumping Duty Order: Pure Magnesium in Granular Form from the People's Republic of China, 66 FR 57936 (November 19, 2001).

    6 This third exclusion for magnesium-based reagent mixtures is based on the exclusion for reagent mixtures in the 2000-2001 investigations of magnesium from China, Israel, and Russia. See Final Determination of Sales at Less Than Fair Value: Pure Magnesium in Granular Form From the People's Republic of China, 66 FR 49345 (September 27, 2001); Final Determination of Sales at Less Than Fair Value: Pure Magnesium From Israel, 66 FR 49349 (September 27, 2001); Final Determination of Sales at Not Less Than Fair Value: Pure Magnesium From the Russian Federation, 66 FR 49347 (September 27, 2001). These mixtures are not magnesium alloys, because they are not combined in liquid form and cast into the same ingot.

    The merchandise subject to this order is classifiable under items 8104.19.00, and 8104.30.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS items are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    Preliminary Determination of No Shipments

    We received timely submissions from TMM and TMI certifying that they did not have sales, shipments, or exports of subject merchandise to the United States during the POR.7 On July 11, 2016, we requested the U.S. Customs and Border Protection (“CBP”) data file of entries of subject merchandise imported into the United States during the POR, and exported by TMM and/or TMI. This query returned no entries during the POR.8 Additionally, in order to examine TMM's and TMI's claim, we sent an inquiry to CBP requesting that it provide any information contrary to these no-shipments claims.9 We received no notification from CBP of any entries of subject merchandise concerning these companies. On August 15, 2016, Petitioner, submitted public information it alleged contradicts TMM's and TMI's certifications of no shipments of subject merchandise during the POR.10

    7See letter from TMM, “Magnesium Metal From the People's Republic of China; A-570-896; Certification of No Sales by Tianjin Magnesium Metal Co., Ltd.,” dated June 24, 2016, at 1. See letter from TMI, “Magnesium Metal from the People's Republic of China; A-570-896; Certification of No Sales by Tianjin Magnesium International, Co., Ltd.,” dated July 1, 2016, at 1.

    8See Memorandum to the File, “RE: U.S. Customs and Border Protection Data,” dated September 29, 2016 (“No Shipments Memo”), at Attachment 1.

    9See No Shipments Memo, at Attachment 2. See also CBP message 6250303, dated 09/06/2016.

    10See letter from Petitioner, “Magnesium Metal from the People's Republic of China: Response to TMM/TMI's No Shipment Certifications,” dated August 15, 2016, at Exhibits 1-3. We provided the information submitted by Petitioner to CBP on November 4, 2016. See the Department's letter to Alexander Amdur, Director, AD/CVD Policy & Programs Division, Office of International Trade U.S. Customs & Border Protection, from Wendy J. Frankel Director, Customs Liaison Unit, “Pure Magnesium from the People's Republic of China and Magnesium Metal from the People's Republic of China,” dated November 4, 2016, at Attachment II.

    Because we have not received information to the contrary from CBP, consistent with our practice, we preliminarily determine that TMI and TMM had no shipments and, therefore, no reviewable entries during the POR. In addition, we find it is not appropriate to rescind the review with respect to these companies but, rather, to complete the review with respect to TMI and TMM and issue appropriate instructions to CBP based on the final results of the review, consistent with our practice in non-market economy (“NME”) cases.11

    11See Glycine From the People's Republic of China: Final Results of Antidumping Duty Administrative Review 2014-2015, 81 FR 72567 (October 20, 2016) and the “Assessment Rates” section, below.

    Public Comment

    Interested parties may submit case briefs no later than 30 days after the date of publication of this notice in the Federal Register.12 Rebuttals to case briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the date for filing case briefs.13 Parties who submit arguments are requested to submit with each argument (a) a statement of the issue, (b) a brief summary of the argument, and (c) a table of authorities.14 Parties submitting briefs should do so pursuant to the Department's electronic filing system: Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”).15 ACCESS is available to registered users at https://access.trade.gov, and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    12See 19 CFR 351.309(c)(1)(ii).

    13See 19 CFR 351.309(d)(1)(2).

    14See 19 CFR 351.309(c)(2), (d)(2).

    15See 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days of the date of publication of this notice. Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, parties will be notified of the time and date of the hearing which will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.

    Unless extended, we intend to issue the final results of this administrative review, including our analysis of all issues raised in any written brief, within 120 days of publication of this notice in the Federal Register, pursuant to section 751(a)(3)(A) of the Act.

    Assessment Rates

    Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.16 We intend to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. Pursuant to the Department's practice in NME cases, if we continue to determine in the final results that TMI and TMM had no shipments of subject merchandise, any suspended entries of subject merchandise during the POR from these companies will be liquidated at the PRC-wide rate.17

    16See 19 CFR 351.212(b)(1).

    17 For a full discussion of this practice, see Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of review, as provided for by section 751(a)(2)(C) of the Act: (1) For TMI, which claimed no shipments, the cash deposit rate will remain unchanged from the rate assigned to TMI in the most recently completed review of the company; (2) for previously investigated or reviewed PRC and non-PRC exporters who are not under review in this segment of the proceeding but who have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate (including TMM, which claimed no shipments, but has not been found to be separate from the PRC-wide entity), the cash deposit rate will be the PRC-wide rate of 141.49 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this period. Failure to comply with this requirement may result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    This notice is issued in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).

    Dated: December 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-00036 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-932] Certain Steel Threaded Rod From the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the “Department”) published the Final Results of the sixth administrative review of the antidumping duty order on certain steel threaded rod from the People's Republic of China (“PRC”) on November 22, 2016. The period of review (“POR”) is April 1, 2014, through March 31, 2015. This review covers two PRC exporters of subject merchandise, RMB Fasteners Ltd., IFI & Morgan Ltd., and Jiaxing Brother Standard Part Co., Ltd. (collectively “the RMB/IFI Group”), and Zhejiang New Oriental Fastener Co., Ltd. (“New Oriental”). The amended final dumping margins are listed below in the “Final Results of Administrative Review” section of this notice.

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Paul Walker, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington DC 20230; telephone: (202) 482-0413.

    SUPPLEMENTARY INFORMATION: Background

    The Department published in the Federal Register the Final Results of this administrative review on November 22, 2016.1 On December 2, 2016, New Oriental filed a timely allegation that the Department made two ministerial errors in the Final Results and requested, pursuant to 19 CFR 351.224, that the Department correct the alleged ministerial errors. No other party submitted ministerial error allegations or rebuttal comments.

    1See Certain Steel Threaded Rod from the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015, 81 FR 8300 (November 22, 2016) (“Final Results”), and accompanying Issues and Decision Memorandum (“IDM”).

    Scope of the Order

    The merchandise covered by the order is steel threaded rod.2 Steel threaded rod is certain threaded rod, bar, or studs, of carbon quality steel, having a solid, circular cross section, of any diameter, in any straight length, that have been forged, turned, cold-drawn, cold-rolled, machine straightened, or otherwise cold-finished, and into which threaded grooves have been applied. Certain steel threaded rod subject to the order is currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheadings 7318.15.5051, 7318.15.5056, 7318.15.5090, and 7318.15.2095. Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise is dispositive.3

    2See Certain Steel Threaded Rod from the People's Republic of China: Notice of Antidumping Duty Order, 74 FR 17154 (April 14, 2009).

    3See Memorandum to Paul Piquado, from Christian Marsh, regarding “Sixth Antidumping Administrative Review of Certain Steel Threaded Rod from the People's Republic of China: Ministerial Error Memorandum,” dated concurrently with this notice (“Ministerial Errors Memo”).

    Amended Final Results

    Section 751(h) of the Tariff Act of 1930, as amended (“the Act”), defines “ministerial error” as including “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.” After analyzing New Oriental's comments, we have determined, in accordance with section 751(h) of the Act and 19 CFR 351.224(e), that we made certain ministerial errors in the final results with respect to our calculation of surrogate financial ratios.4

    4See Ministerial Errors Memo.

    For a detailed discussion of these ministerial errors, as well as the Department's analysis of these errors, see Ministerial Errors Memo. In accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the Final Results of this administrative review of certain steel threaded rod from the PRC. The dumping margins for the period of review for these amended final results are as follows:

    Exporter Weighted-
  • average
  • margin
  • (percent)
  • RMB Fasteners Ltd., and IFI & Morgan Ltd. (“RMB/IFI Group”) 0.00 Zhejiang New Oriental Fasteners Co., Ltd. (“New Oriental”) 5.40

    These amended final results and notice are issued and published in accordance with sections 751(h), and 777(i)(1) of the Act, and 19 CFR 351.224(e).

    Dated: December 23, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-00026 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-122-503, A-351-503, A-570-502, C-351-504] Iron Construction Castings From Brazil, Canada, and the People's Republic of China: Continuation of Antidumping Duty Orders and Countervailing Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) and the International Trade Commission (the ITC) have determined that revocation of the antidumping duty (AD) orders on certain iron construction castings (iron castings) from Brazil, Canada, and the People's Republic of China (PRC) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States. The Department and the ITC have also determined that revocation of the countervailing duty (CVD) order on heavy iron construction castings (heavy iron castings) from Brazil would likely lead to continuation or recurrence of net countervailable subsidies and material injury to an industry in the United States. Therefore, the Department is publishing a notice of continuation of the AD orders and the CVD order.

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Shanah Lee or Patricia Tran, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6386 or (202) 482-1503, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On October 1, 2015, the Department initiated 1 and the ITC instituted 2 five-year (sunset) reviews of the AD Orders3 on iron castings from Brazil, Canada, and the PRC, and the CVD Order4 on heavy iron castings from Brazil pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). The Department conducted expedited sunset reviews of these orders. As a result of its reviews, the Department determined that revocation of the AD Orders on iron castings would likely lead to continuation or recurrence of dumping and that revocation of the CVD Order on heavy iron castings would likely lead to continuation or recurrence of net countervailable subsidies.5 Therefore, the Department notified the ITC of the magnitude of the margins and the net countervailable subsidy rate likely to prevail should the orders be revoked, pursuant to sections 751(c)(1) and 752(b) and (c) of the Act.6

    1See Initiation of Five-year (“Sunset”) Reviews, 80 FR 59133 (October 1, 2015).

    2See Iron Construction Castings From Brazil, Canada, and China; Institution of Five-Year Reviews, 80 FR 59192 (October 1, 2015).

    3See Antidumping Duty Order; Iron Construction Castings From Brazil, 51 FR 17220 (May 9, 1986); Antidumping Duty Order; Certain Iron Construction Castings Grom Canada, 51 FR 7600 (March 5, 1986), as amended by Iron Construction Castings From Canada; Amendment to Final Determination of Sales at Less Than Fair Value and Amendment to Antidumping Duty Order, 51 FR 34110 (September 25, 1986); Antidumping Duty Order; Iron Construction Castings From the People's Republic of China, 51 FR 17222 (May 9, 1986) (collectively AD Orders).

    4See Countervailing Duty Order; Certain Heavy Iron Construction Casting From Brazil, 51 FR 17786 (May 15, 1986) (CVD Order).

    5See Iron Construction Castings From Brazil, Canada, and, the People's Republic of China: Final Results of Expedited Sunset Reviews of the Antidumping Duty Orders, 81 FR 7083 (February 10, 2016), and Heavy Iron Construction Castings From Brazil: Final Results of Expedited Fourth Sunset Review of the Countervailing Duty Order, 81 FR 6237 (February 5, 2016).

    6See Iron Construction Castings From Brazil, Canada, and, the People's Republic of China: Final Results of Expedited Sunset Reviews of the Antidumping Duty Orders, 81 FR 7083 (February 10, 2016), and Heavy Iron Construction Castings From Brazil: Final Results of Expedited Fourth Sunset Review of the Countervailing Duty Order, 81 FR 6237 (February 5, 2016).

    On December 28, 2016, the ITC published its determination, pursuant to sections 751(c) and 752 of the Act, that revocation of the AD orders on iron castings from Brazil, Canada, and the PRC, and the CVD order on heavy iron castings from Brazil, would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.7

    7See Iron Construction Castings From Brazil, Canada, and China; Determination, 81 FR 95639 (December 28, 2016). See also the letter from the Chairman of the ITC, Irving Williamson, to Deputy Assistant Secretary Christian Marsh, dated December 21, 2016.

    Scopes of the AD Orders Brazil

    The merchandise covered by the order consists of certain iron construction castings from Brazil, limited to manhole covers, rings, and frames, catch basin grates and frames, cleanout covers and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under Harmonized Tariff Schedule (HTS) item under 7325.10.0010; and to valve, service, and meter boxes which are placed below ground to encase water, gas, or other valves, or water and gas meters, classifiable as light castings under HTS item number 7325.10.0050. The HTS item numbers are provided for convenience and customs purposes only. The written product description remains dispositive.

    Canada

    The merchandise covered by the order consists of certain iron construction castings from Canada, limited to manhole covers, rings, and frames, catch basin grates and frames, clean-out covers, and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under HTS item number 7325.10.0010. The HTS item number is provided for convenience and customs purposes only. The written product description remains dispositive.

    PRC

    The products covered by the order are certain iron construction castings from the PRC, limited to manhole covers, rings and frames, catch basin grates and frames, cleanout covers and drains used for drainage or access purposes for public utilities, water and sanitary systems; and valve, service, and meter boxes which are placed below ground to encase water, gas, or other valves, or water or gas meters. These articles must be of cast iron, not alloyed, and not malleable. This merchandise is currently classifiable under the HTS item numbers 7325.10.0010 and 7325.10.0050. The HTS item numbers are provided for convenience and customs purposes. The written product description remains dispositive.

    Scope of the CVD Order Brazil

    The products covered by this order are certain heavy iron construction castings, which are defined for purposes of this proceeding as manhole covers, rings and frames; catch basin grates and frames; and cleanout covers and frames. Such castings are used for drainage or access purposes for public utility, water and sanitary systems. These articles must be of cast iron, not alloyed, and not malleable. The merchandise is currently classified under HTS item number 7325.10.00. While the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this order is dispositive.

    Continuation of the Orders

    As a result of the determinations by the Department and the ITC that revocation of the AD orders and the CVD order would likely lead to a continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD orders on iron castings from Brazil, Canada, and the PRC, and the CVD order on heavy iron castings from Brazil. U.S. Customs and Border Protection will continue to collect cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.

    The effective date of the continuation of the AD orders and the CVD order will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act, the Department intends to initiate the next five-year review of these orders not later than 30 days prior to the fifth anniversary of the effective date of this continuation notice.

    These five-year sunset reviews and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).

    Dated: December 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-00028 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-820] Certain Hot-Rolled Carbon Steel Flat Products From India: Final Results of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On September 7, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty (AD) order on certain hot-rolled carbon steel flat products (hot-rolled steel) from India. We received no comments or requests for a hearing. Therefore, for the final results, we continue to find that Ispat Industries Ltd. (Ispat), JSW Steel Ltd. (JSW), JSW Ispat Steel Ltd. (JSW Ispat), and Tata Steel Ltd. (Tata) had no shipments of the subject merchandise, and, therefore, no reviewable transactions, during the period of review (POR).

    DATES:

    Effective January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    George McMahon or Eric Greynolds, AD/CVD Operations Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1167 and (202) 482-6071, respectively.

    Background

    On September 7, 2016, the Department published the Preliminary Results. 1 The POR is December 1, 2014, through November 30, 2015. We invited interested parties to comment on the Preliminary Results. We received no comments from any party. The Department conducted this administrative review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act).

    1See Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Preliminary Results of Antidumping Duty Administrative Review; 2014-2015, 81 FR 61664 (September 7, 2016) (Preliminary Results).

    Scope of the Order

    For purposes of this order, the products covered are certain hot-rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm, but not exceeding 1250 mm, and of a thickness of not less than 4.0 mm, not in coils and without patterns in relief) of a thickness not less than 4.0 mm is not included within the scope of this order.

    Specifically included in the scope of this order are vacuum-degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high-strength low-alloy (HSLA) steels, and the substrate for motor lamination steels. IF steels are recognized as low-carbon steels with micro-alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.

    Steel products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products in which: (i) Iron predominates, by weight, over each of the other contained elements; (ii) the carbon content is 2 percent or less, by weight; and (iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    1.80 percent of manganese, or 2.25 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.15 percent of vanadium, or 0.15 percent of zirconium

    All products that meet the physical and chemical description provided above are within the scope of this order unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of this order:

    • Alloy hot-rolled carbon steel products in which at least one of the chemical elements exceeds those listed above (including, e.g., American Society for Testing and Materials (ASTM) specifications A543, A387, A514, A517, A506).

    • Society of Automotive Engineers (SAE)/American Iron & Steel Institute (AISI) grades of series 2300 and higher.

    • Ball bearings steels, as defined in the HTSUS.

    • Tool steels, as defined in the HTSUS.

    • Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 2.25 percent.

    • ASTM specifications A710 and A736.

    • United States Steel (USS) Abrasion-resistant steels (USS AR 400, USS AR 500).

    • All products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507).

    • Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTSUS.

    The merchandise subject to this order is currently classifiable in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled carbon steel covered by this order, including: Vacuum-degassed fully stabilized; high-strength low-alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise subject to this proceeding is dispositive.

    Final Determination of No Shipments

    As noted above, the Department received no comments concerning the Preliminary Results on the record of this segment of the proceeding. As there are no changes from, or comments on, the Preliminary Results, the Department finds that there is no reason to modify its analysis. Thus, we continue to find that Ispat, JSW, JSW Ispat, and Tata had no shipments of the subject merchandise, and, therefore, no reviewable transactions, during the POR. Accordingly, no decision memorandum accompanies this Federal Register notice. For further details of the issues addressed in this proceeding, see the Preliminary Results and the accompanying Preliminary Decision Memorandum.2

    2See Memorandum to Paul Piquado, Assistant Secretary for Enforcement and Compliance, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, titled “Certain Hot-Rolled Carbon Steel Flat Products from India: Decision Memorandum for the Preliminary Results of the Antidumping Duty Administrative Review; 2014-2015,” dated August 19, 2016 (Preliminary Decision Memorandum). The Preliminary Decision Memorandum can be accessed directly at: http://enforcement.trade.gov/frn/index.html.

    Assessment Rates

    Upon issuance of the final results of this administrative review, the Department shall determine, and Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212. The Department intends to issue assessment instructions to CBP 15 days after publication of the final results of this review.

    The Department clarified its “automatic assessment” regulation on May 6, 2003.3 If applicable, this clarification will apply to all entries of subject merchandise during the POR produced or exported by Ispat, JSW, JSW Ispat, and Tata, for which these companies did not know that its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate these un-reviewed entries at the all others rate established in the less-than fair-value (LTFV) investigation, as amended, which is 38.72 percent,4 if there is no rate for the intermediary company(ies) involved in the transaction. These cash deposit requirements, when imposed, shall remain in effect until further notice.5

    3See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment Policy Notice).

    4See Notice of Amended Final Antidumping Duty Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From India, 66 FR 60194 (December 3, 2001) (Amended Final Determination).

    5See Assessment Policy Notice for a full discussion of this clarification.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2) of the Act: (1) The cash deposit rates for respondents noted above, which claimed no shipments, will remain unchanged from the rates assigned to the companies in the most recently completed review of the companies; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 38.72 percent, the all-others rate established in the Amended Final Determination. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    Notification to Importers

    This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation, which is subject to sanction.

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).

    Dated: December 30, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-00037 Filed 1-5-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF024 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Long Range Strike Weapons Systems Evaluations Program AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; receipt of application for Letter of Authorization; request for comments and information.

    SUMMARY:

    NMFS has received a request from the United States Air Force (USAF), 86 Fighter Weapons Squadron (86 FWS) for authorization to take marine mammals incidental to conducting munitions testing for their Long Range Strike Weapons Systems Evaluation Program (LRS WSEP) over the course of five years, from September 1, 2017 through August 31, 2022. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the 86 FWS's request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the 86 FWS's application and request.

    DATES:

    Comments and information must be received no later than February 6, 2017.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. 1315 East-West Highway, Silver Spring, MD 20910-3225 and electronic comments should be sent [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments sent via email, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/military.htm without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Laura McCue, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Availability

    An electronic copy of the 86 FWS's application may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/military.htm. In case of problems accessing the document, please call the contact listed above.

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    The NDAA of 2004 (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated earlier and amended the definition of harassment as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment). 86 FWS has identified LRS WSEP missions as military readiness activities.

    On September 27, 2016, NMFS issued an incidental harassment authorization (IHA), similar to this request, for takes of marine mammals incidental to Long Range Strike Weapons System Evaluation Program (LRS WSEP) activities in the BSURE area of the PMRF off Kauai, Hawaii. 86 FWS complied with all conditions of the IHA issued, including submission of final reports. Based on these reports, NMFS has determined that impacts to marine mammals were not beyond those anticipated.

    Summary of Request

    On December 21, 2016, NMFS received an adequate and complete application from the 86 FWS requesting authorization for the take of marine mammals incidental to LRS WSEP activities in the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii for a period of five years. LRS WSEP activities have the potential to result in take of marine mammals in the waters of the PMRF. Therefore, 86 FWS requests authorization to take 16 species of marine mammals that may occur in this area.

    Specified Activities

    86 FWS proposes actions that include LRS WSEP test missions that involve the use of multiple types of live and inert munitions (bombs and missiles) detonated above, at, or slightly below the water surface. The ordnance may be delivered by multiple types of aircraft, including bombers and fighter aircraft. The actions include air-to-surface test missions of the Joint Air-to-Surface Stand-off Missile/Joint Air-to-Surface Stand-off Missile-Extended Range (JASSM/JASSM-ER), Small Diameter Bomb-I/II (SDB-I/II), High-speed Anti-Radiation Missile (HARM), Joint Direct Attack Munition/Laser Joint Direct Attack Munition (JDAM/LJDAM), and Miniature Air-Launched Decoy (MALD). Net explosive weight of the live munitions ranges from 23 to 300 pounds. 86 FWS anticipates the ability to test approximately 110 munitions per year.

    Information Solicited

    Interested persons may submit information, suggestions, and comments concerning 86 FWS's request (see ADDRESSES). Comments should be supported by data or literature citations as appropriate. We will consider all relevant information, suggestions, and comments related to the request during the development of proposed regulations governing the incidental taking of marine mammals by 86 FWS, if appropriate.

    Dated: December 27, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-31947 Filed 1-5-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [0648-XE753] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts Bay AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to Northeast Gateway® Energy BridgeTM, L.P. (Northeast Gateway or NEG) and Algonquin Gas Transmission, LLC (Algonquin) to take small numbers of 14 species of marine mammals, by Level B harassment, incidental to operating, maintaining, and repairing a liquefied natural gas (LNG) port and the Algonquin Pipeline Lateral (Pipeline Lateral) facilities by NEG and Algonquin, in Massachusetts Bay.

    DATES:

    This authorization is effective from December 22, 2016 through December 21, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for a one-year authorization to incidentally take small numbers of marine mammals by harassment, provided that there is no potential for serious injury or mortality to result from the activity. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

    Summary of Request

    On June 9, 2015, NMFS received an application from Excelerate Energy, L.P. (Excelerate) and Tetra Tech, Inc. (Tetra Tech), on behalf of NEG and Algonquin, for an annual IHA and a subsequent five-year letter of authorization (LOA) pursuant to a rulemaking under section 101(a)(5)(A), to take 14 species of marine mammals by Level B harassment incidental to operations, maintenance, and repair of the NEG Port and the Pipeline Lateral facilities in Massachusetts Bay. They are: North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, short-beaked common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. Since the NEG Port and Pipeline Lateral operation, maintenance, and repair activities have the potential to take marine mammals, a marine mammal take authorization under the MMPA is warranted. NMFS issued an IHA to NEG and Algonquin on December 22, 2015 (81 FR 744; January 7, 2016). The IHA is valid until December 22, 2016. In June 2016 NMFS learned that NEG and Algonquin are considering decommissioning the NEG Port in the foreseeable future. Upon discussion with Excelerate and Tetra Tech, it was agreed that instead of conducting a rulemaking for five years of incidental take authorization that may not be needed, NMFS would process another one-year IHA to NEG and Algonquin to cover marine mammal takes from its operations, maintenance, and repair work from December 23, 2016 through December 22, 2017.

    NMFS first issued an IHA to NEG and Algonquin to allow for the incidental harassment of small numbers of marine mammals resulting from the construction and operation of the NEG Port and the Pipeline Lateral (72 FR 27077; May 14, 2007). Subsequently, NMFS issued five one-year IHAs for the take of marine mammals incidental to the operation of the NEG Port activity pursuant to section 101(a)(5)(D) of the MMPA (73 FR 29485; May 21, 2008, 74 FR 45613; September 3, 2009, 75 FR 53672; September 1, 2010, and 76 FR 62778; October 11, 2011). After that, NMFS issued two one-year IHAs to NEG and Algonquin to take marine mammals incidental to the operations of the NEG Port as well as maintenance and repair (79 FR 78806; December 31, 2014, 81 FR 744; January 7, 2016).

    Description of the Specified Activity

    The NEG and Algonquin activities include the following:

    NEG Port Operations: The NEG Port operations involve docking of NEG vessels and regasification of NEG for delivery to shore. Noises generated during these activities, especially from the NEG vessel's dynamic positioning (DP) thrusters during docking, could result in takes of marine mammals in the port vicinity by level B behavioral harassment.

    NEG Port Maintenance and Repair: Regular maintenance and occasional repair of the NEG Port are expected to occur throughout the NEG Port operation period. Machinery used during these activities generate noises that could result in takes of marine mammals in the port vicinity by Level B behavioral harassment.

    Algonquin Pipeline Lateral Routine Operations and Maintenance: The Algonquin Pipeline Lateral that is used for gas delivery would be inspected regularly to ensure proper operations. The work would be done using support vessels operating in dynamic positioning mode. Noises generated from these activities could result in takes of marine mammals in the vicinity of Pipeline Lateral by Level B behavioral harassment.

    Unplanned Pipeline Repair Activities: Unplanned repair activities may be required occasionally at a location along the Pipeline Lateral in west Massachusetts Bay, as shown in Figure 2.1 of the application. The repair would involve the use of a dive vessel operating in dynamic positioning mode. Noise generated from this activity could result in takes of marine mammals in the vicinity of repair work by Level B behavioral harassment.

    An IHA was previously issued to NEG and Algonquin for this activity on December 22, 2015 (81 FR 744; January 7, 2016), based on activities described on Excelerate and Tetra Tech's marine mammal incidental take request submitted in June 2014 and on the Federal Register notice for the proposed IHA (78 FR 69049; November 18, 2013). The latest application submitted by Excelerate and Tetra Tech on June 9, 2015, contains the same information on project descriptions as described in the June 2014 IHA application. There is no change on the NEG and Algonquin's proposed NEG Port and Pipeline Lateral operations and maintenance and repair. Please refer to these documents for a detailed description of NEG and Algonquin's proposed NEG Port and Pipeline Lateral operations and maintenance and repair activities.

    Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the Federal Register on November 15, 2016 (81 FR 80016). During the 30-day public comment period, NMFS received a comment letter from the Marine Mammal Commission (Commission). Specific comments and responses are provided below.

    Comment 1: The Commission states that the method used to estimate the numbers of takes, which sums fractions of takes for each species across days, does not account for NMFS's 24-hour reset policy. The Commission states that instead of summing fractions of takes across days and then rounding to estimate total takes, NMFS should have calculated a daily take estimate (determined by multiplying the estimated density of marine mammals in the area by the daily ensonified area) and then rounding that to a whole number before multiplying it by the number of days that activities would occur. Thus, the Commission recommends that NMFS (1) follow its policy of a 24-hour reset for enumerating the number of each species that could be taken, (2) apply standard rounding rules before summing the numbers of estimated takes across days, and (3) for species that have the potential to be taken but model-estimated or calculated takes round to zero, use group size to inform the take estimates—these methods should be used consistently for all future incidental take authorizations.

    Response: While for certain projects NMFS has rounded to the whole number for daily takes, the circumstance for projects like this one when the objective of take estimation is to provide more accurate assessments for potential impacts to marine mammals for the entire project, the rounding on a daily basis will introduce large errors into the process. In addition, while NMFS uses a 24-hour reset for its take calculation to ensure that individual animals are not counted as a take more than once per day, that fact does not make the calculation of take across the entire activity period inherently incorrect. There is no need for daily (24-hour) rounding in this case because there is no daily limit of takes, so long as total authorized takes of marine mammal are not exceeded. In short, the calculation of predicted take is not an exact science and there are arguments for taking different mathematical approaches in different situations, and for making qualitative adjustments in other situations. We believe, however, that the prediction for this action remains appropriate.

    Description of Marine Mammals in the Area of the Specified Activities

    Marine mammal species that potentially occur in the vicinity of the Northeast Gateway facility include the North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. General information on the distribution of these marine mammal species can be found in NMFS Stock Assessment Reports (Waring et al., 2016). This latter document is available at: http://www.nmfs.noaa.gov/pr/sars/pdf/atlantic2015_final.pdf. Additional information regarding these species within the NEG's action area is provided below, with a summary in Table 1.

    Humpback Whale

    The highest abundance for humpback whales is distributed primarily along a relatively narrow corridor following the 100-meter (m) (328-feet (ft)) isobath across the southern Gulf of Maine from the northwestern slope of Georges Bank, south to the Great South Channel, and northward alongside Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales increases in the spring with the highest occurrence along the slope waters (between the 40- and 140-m, or 131- and 459-ft, isobaths) off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 50- and 200-m (164- and 656-ft) isobaths along the inner slope of Georges Bank. High abundance is also estimated for the waters around Platts Bank. In the summer months, abundance increases markedly over the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the waters (100-200 m or 328-656 ft) between Platts Bank and Jeffreys Ledge, the steep slopes (between the 30- and 160-m isobaths) of Phelps and Davis Bank north of the Great South Channel towards Cape Cod, and between the 50- and 100-m (164- and 328-ft) isobath for almost the entire length of the steeply sloping northern edge of Georges Bank. This general distribution pattern persists in all seasons except winter, when humpbacks remain at high abundance in only a few locations including Porpoise and Neddick Basins adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies Basin, and the Great South Channel. The best estimate of abundance for Gulf of Maine, formerly western North Atlantic, humpback whales is 823 animals (Waring et al., 2016).

    Fin Whale

    Spatial patterns of habitat utilization by fin whales are very similar to those of humpback whales. Spring and summer high-use areas follow the 100-m (328 ft) isobath along the northern edge of Georges Bank (between the 50- and 200-m (164- and 656-ft) isobaths), and northward from the Great South Channel (between the 50- and 160-m, or 164- and 525-ft, isobaths). Waters around Cashes Ledge, Platts Bank, and Jeffreys Ledge are all high-use areas in the summer months. Stellwagen Bank is a high-use area for fin whales in all seasons, with highest abundance occurring over the southern Stellwagen Bank in the summer months. In fact, the southern portion of the Stellwagen Bank National Marine Sanctuary (SBNMS) is used more frequently than the northern portion in all months except winter, when high abundance is recorded over the northern tip of Stellwagen Bank. In addition to Stellwagen Bank, high abundance in winter is estimated for Jeffreys Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- to 656-ft, isobaths), as well as Georges Basin and northern Georges Bank. The best estimate of abundance for the western North Atlantic stock of fin whales is 1,618 (Waring et al., 2016). Currently, there are insufficient data to determine population trends for this species.

    Minke Whale

    Like other piscivorous baleen whales, highest abundance for minke whale is strongly associated with regions between the 50- and 100-m (164- and 328-ft) isobaths, but with a slightly stronger preference for the shallower waters along the slopes of Davis Bank, Phelps Bank, Great South Channel and Georges Shoals on Georges Bank. Minke whales are sighted in the SBNMS in all seasons, with highest abundance estimated for the shallow waters (approximately 40 m, or 131 ft) over southern Stellwagen Bank in the summer and fall months. Platts Bank, Cashes Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and Scantium) also support high relative abundance. Very low densities of minke whales remain throughout most of the southern Gulf of Maine in winter. The best estimate of abundance for the Canadian East Coast stock, which occurs from the western half of the Davis Strait to the Gulf of Mexico, of minke whales is 20,741 animals (Waring et al., 2016). Currently, there are insufficient data to determine population trends for this species.

    North Atlantic Right Whale

    North Atlantic right whales are generally distributed widely across the southern Gulf of Maine in spring with highest abundance located over the deeper waters (100- to 160-m (328- to 525-ft) isobaths) on the northern edge of the Great South Channel and deep waters (100-300 m, 328-984 ft) parallel to the 100-m (328-ft) isobath of northern Georges Bank and Georges Basin. High abundance is also found in the shallowest waters (<30 m, or <98 ft) of Cape Cod Bay, over Platts Bank and around Cashes Ledge. Lower relative abundance is estimated over deep-water basins including Wilkinson Basin, Rodgers Basin and Franklin Basin. In the summer months, right whales move almost entirely away from the coast to deep waters over basins in the central Gulf of Maine (Wilkinson Basin, Cashes Basin between the 160- and 200-m (525- and 656-ft) isobaths) and north of Georges Bank (Rogers, Crowell and Georges Basins). Highest abundance is found north of the 100-m (328-ft) isobath at the Great South Channel and over the deep slope waters and basins along the northern edge of Georges Bank. The waters between Fippennies Ledge and Cashes Ledge are also estimated as high-use areas. In the fall months, right whales are sighted infrequently in the Gulf of Maine, with highest densities over Jeffreys Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In winter, Cape Cod Bay, Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the main high-use areas. Although SBNMS does not appear to support the highest abundance of right whales, sightings within SBNMS are reported for all four seasons, albeit at low relative abundance. Highest sighting within SBNMS occurred along the southern edge of the Bank.

    The western North Atlantic minimum stock size is based on a census of individual whales identified using photo-identification techniques. A review of the photo-ID recapture database as it existed on 20 October 2014 indicated that 476 individually recognized whales in the catalog were known to be alive during 2011. This number represents a minimum population size. This is a direct count and has no associated coefficient of variation (Waring et al., 2016). Examination of the minimum number alive population index calculated from the individual sightings database, as it existed on 20 October 2014, for the years 1990-2011 suggests a positive and slowly accelerating trend in population size. These data reveal a significant increase in the number of catalogued whales with a geometric mean growth rate for the period of 2.8 percent (Waring et al., 2016).

    Long-Finned Pilot Whale

    The long-finned pilot whale is more generally found along the edge of the continental shelf (a depth of 330 to 3,300 ft or 100 to 1,000 m), choosing areas of high relief or submerged banks in cold or temperate shoreline waters. This species is split between two subspecies: The Northern and Southern subspecies. The Southern subspecies is circumpolar with northern limits of Brazil and South Africa. The Northern subspecies, which could be encountered during operation of the NEG Port, ranges from North Carolina to Greenland (Reeves et al., 2002; Wilson and Ruff 1999). In the western North Atlantic, long-finned pilot whales are pelagic, occurring in especially high densities in winter and spring over the continental slope, then moving inshore and onto the shelf in summer and autumn following squid and mackerel populations (Reeves et al., 2002). They frequently travel into the central and northern Georges Bank, Great South Channel, and Gulf of Maine areas during the summer and early fall (May and October) (NOAA 1993). According to the species stock report, the population estimate for the Western North Atlantic long-finned pilot whale is 5,636 individuals (Waring et al., 2010). Currently, there are insufficient data to determine population trends for the long-finned pilot whale.

    Atlantic White-Sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins are widespread throughout the southern Gulf of Maine, with the high-use areas widely located either side of the 100-m (328-ft) isobath along the northern edge of Georges Bank, and north from the Great South Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank and Cashes Ledge. In spring, high-use areas exist in the Great South Channel, northern Georges Bank, the steeply sloping edge of Davis Bank and Cape Cod, southern Stellwagen Bank and the waters between Jeffreys Ledge and Platts Bank. In summer, there is a shift and expansion of habitat toward the east and northeast. High-use areas are identified along most of the northern edge of Georges Bank between the 50- and 200-m (164- and 656-ft) isobaths and northward from the Great South Channel along the slopes of Davis Bank and Cape Cod. High numbers of sightings are also recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the bathymetrically complex area northeast of Platts Bank. High numbers of sightings of white-sided dolphin are recorded within SBNMS in all seasons, with highest density in summer and most widespread distributions in spring located mainly over the southern end of Stellwagen Bank. In winter, high numbers of sightings are recorded at the northern tip of Stellwagen Bank and Tillies Basin.

    A comparison of spatial distribution patterns for all baleen whales (Mysticeti) and all porpoises and dolphins combined show that both groups have very similar spatial patterns of high- and low-use areas. The baleen whales, whether piscivorous or planktivorous, are more concentrated than the dolphins and porpoises. They utilize a corridor that extended broadly along the most linear and steeply sloping edges in the southern Gulf of Maine indicated broadly by the 100-m (328-ft) isobath. Stellwagen Bank and Jeffreys Ledge support a high abundance of baleen whales throughout the year. Species richness maps indicate that high-use areas for individual whales and dolphin species co-occur, resulting in similar patterns of species richness primarily along the southern portion of the 100-m (328-ft) isobath extending northeast and northwest from the Great South Channel. The southern edge of Stellwagen Bank and the waters around the northern tip of Cape Cod are also highlighted as supporting high cetacean species richness. Intermediate to high numbers of species are also calculated for the waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts Bank, Fippennies Ledge and Cashes Ledge. The best estimate of abundance for the western North Atlantic stock of white-sided dolphins is 48,819 (Waring et al., 2016). A trend analysis has not been conducted for this species.

    Killer Whale, Common Dolphin, Bottlenose Dolphin, Risso's Dolphin, and Harbor Porpoise

    Although these five species are some of the most widely distributed small cetacean species in the world (Jefferson et al., 1993), they are not commonly seen in the vicinity of the project area in Massachusetts Bay (Wiley et al., 1994; Northeast Gateway Marine Mammal Monitoring Weekly Reports 2007). The total number of killer whales off the eastern U.S. coast is unknown, and present data are insufficient to calculate a minimum population estimate or to determine the population trends for this stock (Blaylock et al., 1995). The best estimate of abundance for the western North Atlantic stock of common dolphins is 173,486 animals, and a trend analysis has not been conducted for this species (Waring et al., 2016). There are several stocks of bottlenose dolphins found along the eastern United States from Maine to Florida. The stock that may occur in the area of the Neptune Port is the western North Atlantic coastal northern migratory stock of bottlenose dolphins. The best estimate of abundance for this stock is 11,548 animals (Waring et al., 2016). There are insufficient data to determine the population trend for this stock. The best estimate of abundance for the western North Atlantic stock of Risso's dolphins is 18,250 animals (Waring et al., 2016). There are insufficient data to determine the population trend for this stock. The best estimate of abundance for the Gulf of Maine/Bay of Fundy stock of harbor porpoise is 79,833 animals (Waring et al., 2016). A trend analysis has not been conducted for this species.

    Harbor Seal and Gray Seal

    In the U.S. waters of the western North Atlantic, both harbor and gray seals are usually found from the coast of Maine south to southern New England and New York (Waring et al., 2010).

    Along the southern New England and New York coasts, harbor seals occur seasonally from September through late May (Schneider and Payne 1983). In recent years, their seasonal interval along the southern New England to New Jersey coasts has increased (deHart 2002). In U.S. waters, harbor seal breeding and pupping normally occur in waters north of the New Hampshire/Maine border, although breeding has occurred as far south as Cape Cod in the early part of the 20th century (Temte et al., 1991; Katona et al., 1993). The best estimate of abundance for the western North Atlantic stock of harbor seals is 75,834 animals (Waring et al., 2016). Although gray seals are often seen off the coast from New England to Labrador, within the U.S. waters, only small numbers of gray seals have been observed pupping on several isolated islands along the Maine coast and in Nantucket-Vineyard Sound, Massachusetts (Katona et al., 1993; Rough, 1995). In the late 1990s, a year-round breeding population of approximately 400 gray seals was documented on outer Cape Cod and Muskeget Island (Warring et al., 2007). Depending on the model used, the minimum estimate for the Canadian gray seal population was estimated to range between 125,541 and 169,064 animals (Trzcinski et al., 2005, cited in Waring et al., 2009); however, present data are insufficient to calculate the minimum population estimate for U.S. waters. Waring et al. (2016) note that gray seal abundance in the U.S. Atlantic is likely increasing, but the rate of increase is unknown.

    Table 1—Marine Mammal Species Potentially Present in Region of Activity Species ESA status MMPA status Abundance Range Occurrence North Atlantic right whale Endangered Depleted 476 N. Atlantic Occasional. Humpback whale Endangered Depleted 823 N. Atlantic Occasional. Fin whale Endangered Depleted 1618 N. Atlantic Occasional. Sei whale Endangered Depleted 357 N. Atlantic Occasional. Minke whale Not listed Non-depleted 20741 N. Atlantic Occasional. Long-finned pilot whale Not listed Non-depleted 5636 N. Atlantic Occasional. Atlantic white-sided dolphin Not listed Non-depleted 48819 N. Atlantic Occasional. Bottlenose dolphin Not listed Non-depleted 11548 N. Atlantic Uncommon. Common dolphin Not listed Non-depleted 173486 N. Atlantic Uncommon. Killer whale Not listed Non-depleted Unknown N. Atlantic Uncommon. Risso's dolphin Not listed Non-depleted 18250 N. Atlantic Uncommon. Harbor porpoise Not listed Non-depleted 79833 N. Atlantic Uncommon. Harbor Seal Not listed Non-depleted 75834 N. Atlantic Occasional. Gray seal Not listed Non-depleted Unknown N. Atlantic Occasional. Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., pile removal and pile driving) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of a take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented and how either of those will shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data. NMFS (2016) designate “marine mammal hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The marine mammal hearing groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their hearing range):

    • Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hertz (Hz) and 35 kilo Hertz (kHz);

    • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): Functional hearing is estimated to occur between approximately 275 Hz and 160 kHz;

    • Phocid pinnipeds (true seals): Functional hearing is estimated between 50 Hz to 86 kHz; and

    • Otariid pinnipeds (sea lions and fur seals): Functional hearing is estimated between 60 Hz to 39 kHz.

    Species found in the vicinity of the NEG Port and Pipeline Lateral operations and maintenance and repair area include five low-frequency cetacean species (North Atlantic right whale, humpback whale, fin whale, sei whale, and minke whale), six mid-frequency cetacean species (long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, Risso's dolphin, and killer whale), one high-frequency cetacean species (harbor porpoise), and two pinniped species (harbor seal and gray seal) (Table 1).

    The NEG Port operations and maintenance and repair activities could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.

    Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002; 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is unrecoverable, or temporary (TTS), in which case the animal's hearing threshold will recover over time (Southall et al., 2007). Since marine mammals depend on acoustic cues for vital biological functions, such as orientation, communication, finding prey, and avoiding predators, marine mammals that suffer from PTS or TTS will have reduced fitness in survival and reproduction, either permanently or temporarily. Repeated noise exposure that leads to TTS could cause PTS.

    In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark et al., 2009). Acoustic masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction.

    Masking occurs at the frequency band which the animals utilize. Therefore, since noise generated from in-water vibratory pile driving and removal is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Unlike TS, masking can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 decibel (dB) (more than 3 times in terms of sound pressure level (SPL)) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessel traffic, vessel docking, and stationing while operating DP thrusters, dredging and pipe laying associated with NEG Port and Pipeline Lateral maintenance and repair, and NEG regasification activities, contribute to the elevated ambient noise levels, thus increasing potential for or severity of masking.

    Finally, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardson et al., 1995), such as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification are expected to be biologically significant if the change affects growth, survival, and/or reproduction.

    The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall et al., 2007). Currently NMFS uses 160 dB re 1 microPascal (root-mean-square) (μPa (rms)) at received level for impulse noises (such as impact pile driving) as the onset of marine mammal behavioral harassment, and 120=dB re 1 μPa (rms) for non-impulse noises (such as operating DP thrusters, dredging, pipe laying, and NEG regasification). No impulse noise is expected from the NEG and Algonquin's NEG Port and Pipeline Lateral operation, maintenance, and repair activities. For the NEG Port and Pipeline Lateral operations and maintenance and repair activities, only the 120=dB re 1 μPa (rms) threshold is considered because only non-impulse noise sources would be generated.

    Potential Effects on Marine Mammal Habitat

    The action area is considered biologically important habitat for the North Atlantic right, fin, humpback, and minke whales during part of the seasons, and it is adjacent to the SBNMS. There is no critical habitat in the vicinity of the action area.

    NEG Port Operations

    Operation of the NEG Port will not result in short-term effects, however, long-term effects on the marine environment, including alteration of the seafloor conditions, continued disturbance of the seafloor, regular withdrawal of sea water, and regular generation of underwater noise, will result from NEG Port operations. Specifically, a small area (0.14 acre) along the Pipeline Lateral has been permanently altered (armored) at two cable crossings. In addition, the structures associated with the NEG Port (flowlines, mooring wire rope and chain, suction anchors, and pipeline end manifolds) occupy 4.8 acres of seafloor. An additional area of the seafloor of up to 43 acres (worst case scenario based on severe 100-year storm with Energy Bridge Regasification Vehicle (EBRV) occupying both submerged turret loading (STL) buoys will be subject to disturbance due to chain sweep while the buoys are occupied. Given the relatively small size of the NEG Port area that will be directly affected by Port operations, NMFS does not anticipate that habitat loss will be significant.

    EBRVs are currently authorized to withdraw an average of 4.97 million gallons per day (mgd) and 2.6 billion gallons per year of sea water for general ship operations during cargo delivery activities at the NEG Port. However, as we explained in the Federal Register notice for the 2015 IHA (78 FR 69049; November 18, 2013), during the operations of the NEG Port facility, it was revealed that significantly more water usage is needed than what was originally evaluated in the final USCG Environmental Impact Statement/Environmental Impact Report (EIS/EIR). The updates for the needed water intake and discharge temperature are:

    • 11 billion gallons of total annual water use at the Port;

    • Maximum daily intake volume of up to 56 mgd at a rate of 0.45 ft per second when an EBRV is not able to achieve the heat recovery system (HRS) it is the capability of reducing water use during the regasification process) mode of operation; and

    • Maximum daily change in discharge temperature of 12ºC (53.6ºF) from ambient from the vessel's main condenser cooling system.

    Under the requested water-use scenario, Tetra Tech (2011) conducted an environmental analysis on the potential impacts to marine mammals and their prey. To evaluate impacts to phytoplankton under the increased water usage, the biomass of phytoplankton lost from the Massachusetts Bay ecosystem was estimated based on the method presented in the final EIS/EIR. Phytoplankton densities of 65,000 to 390,000 cells/gallon were multiplied by the annual planned activities of withdrawal rate of 11 billion gallons to estimate a loss of 7.15 × 1014 to 4.29 × 1015 cells per year. Assuming a dry-weight biomass of 10−10 to 10−11 gramper cell (g/cell), an estimated 7.2 kilograms (kg) to 429 kg of biomass would be lost from Massachusetts Bay under the activity, up to approximately 4.2 times that estimated in the final EIS/EIR for the permitted operational scenario. An order of magnitude estimate of the effect of this annual biomass loss on the regional food web can be calculated assuming a 10 percent transfer of biomass from one trophic level to the next (Sumich 1988) following the method used in the final EIS/EIR. This suggests that the loss of 7.2 kg to 429 kg of phytoplankton will result in the loss of about 0.7 kg to 42.9 kg of zooplankton, less than 0.1 kg to 4.3 kg of small planktivorous fish, and up to 0.4 kg of large piscivorous fish (approximately equivalent to a single 1-pound striped bass). Relative to the biomass of these trophic levels in the project area, this biomass loss is minor and consistent with the findings in the final EIS/EIR.

    In addition, zooplankton losses will also increase proportionally to the increase in water withdrawn. The final EIS/EIR used densities of zooplankton determined by the sampling conducted by the Massachusetts Water Resource Authority (MWRA) to characterize the area around its offshore outfall and assumed a mean zooplankton density of 34.9 × 103 organisms per m3. Applying this density, the water withdrawal volume under the activity would result in the entrainment of 2.2 × 1010 zooplankton individuals per trip or 1.5 × 1012 individuals per year. Assuming an average biomass of 0.63 × 10−6 g per individual, this would result in the loss of 14.1 kg of zooplankton per shipment or 916.5 kg of zooplankton per year. As discussed for phytoplankton, biomass transfers from one trophic level to the next at a rate of about 10 percent. Therefore, this entrainment of zooplankton would result in loss of about 91.6 kg of planktivorous fish and 9.2 kg of large piscivorous fish (approximately equivalent to two 9-pound striped bass). These losses are minor relative to the total biomass of these trophic levels in Massachusetts Bay.

    Finally, ichthyoplankton (fish eggs and larvae) losses and equivalent age one juvenile fish estimates under the activity were made based on actual monthly ichthyoplankton data collected in the port area from October 2005 through December 2009 and the activity withdrawal volume of 11 billion gallons per year evenly distributed among months (0.92 billion gallons per month) as a worst-case scenario, representing the maximum number of NEG Port deliveries during any given month. Similarly, the lower, upper, and mean annual entrainment estimates are based on the lower and upper 95 percent confidence limits, of the monthly mean ichthyoplankton densities, and the monthly mean estimates multiplied by the monthly withdrawal rate of 0.92 billion gallons per month. At this withdrawal rate approximately 106 million eggs and 67 million larvae are estimated to be lost (see Table 4.2-2 of the IHA application). The most abundant species and life stages estimated to be entrained under the activity are cunner post yolk-sac larvae (33.3 million), yellowtail flounder/Labridae eggs (27.4 million) and hake species eggs (18.7 million). Together, these species and life stages accounted for approximately 46 percent of the total entrainment estimated. Entrainment was estimated to be highest in June through July when 97.4 million eggs and larvae (approximately 57 percent of the annual total) were estimated to be entrained. However, the demand for natural gas and corresponding NEG Port activities will likely be greatest during the winter heating season (November through March) when impacts from entrainment will likely be lower.

    These estimated losses are not significant given the very high natural mortality of ichthyoplankton. This comparison was done in the final EIS/EIR where ichthyoplankton losses based on historic regional ichthyoplankton densities and a withdrawal rate of approximately 2.6 billion gallons per year were represented by the equivalent number of age-one fish. Under the final EIS/EIR withdrawal scenario, equivalent age-one losses due to entrainment ranged from 1 haddock to 43,431 sand lance (Tetra Tech 2010). Equivalent age-one losses under the conditions when no NEG Port operation occurrence were recalculated using Northeast Gateway monitoring data in order to facilitate comparisons between the permitted scenario and the updated scenario. Using Northeast Gateway monitoring data, withdrawal of 2.6 billion gallons per year would result in equivalent age-one losses ranging from less than 1 haddock to 5,602 American sand lance. By comparison, equivalent age one losses under the activity withdrawal rate of 11 billion gallons per year ranged from less than 1 haddock to 23,701 sand lance and were generally similar to or less than those in the final EIS/EIR. Substantially more equivalent age-one Atlantic herring, pollock, and butterfish were estimated to be lost under the final EIS/EIR at a withdrawal rate of 2.6 billion gallons per year, while substantially more equivalent age-one Atlantic cod, silver hake and hake species, cunner, and Atlantic mackerel are estimated to be lost under the activity.

    Although no reliable annual food consumption rates of baleen whales are available for comparison, based on the calculated quantities of phytoplankton, zooplankton, and ichthyoplankton removal analyzed above, it is reasonable to conclude that baleen whale predation rates would dwarf any reasonable estimates of prey removals by NEG Port operations.

    NEG Port Maintenance

    As stated earlier, NEG Port will require scheduled maintenance inspections using either divers or remote operated vehicles (ROVs). The duration of these inspections are not anticipated to be more than two 8-hour working days. An EBRV will not be required to support these annual inspections. Water usage during the NEG Port maintenance would be limited to the standard requirements of NEG's normal support vessel. As with all vessels operating in Massachusetts Bay, sea water uptake and discharge is required to support engine cooling, typically using a once-through system. The rate of seawater uptake varies with the ship's horsepower and activity and therefore will differ between vessels and activity type. For example, the Gateway Endeavor is a 90-foot vessel powered with a 1,200-horsepower diesel engine with a four-pump seawater cooling system. This system requires seawater intake of about 68 gallons per minute (gpm) while idling and up to about 150 gpm at full power. Use of full power is required generally for transit. A conservatively high estimate of vessel activity for the Gateway Endeavor would be operation at idle for 75 percent of the time and full power for 25 percent of the time. During the routine activities this would equate to approximately 42,480 gallons of seawater per 8-hour work day. When compared to the engine cooling requirements of an EBRV over an 8-hour period (approximately 18 million gallons), the Gateway Endeavour uses about 0.2 percent of the EBRV requirement. To put this water use into context, potential effects from the water-use scenario of 56 mgd have been concluded to be orders of magnitude less than the natural fluctuations of Massachusetts Bay and Cape Cod Bay and not detectable. Water use by support vessels during routine port activities would not materially add to the overall impacts.

    Certain maintenance and repair activities may also require the presence of an EBRV at the NEG Port. Such instances may include maintenance and repair on the STL Buoy, vessel commissioning, and any onboard equipment malfunction or failure occurring while a vessel is present for cargo delivery. Because the requested water-use scenario allows for daily water use of up to 56 mgd to support standard EBRV requirements when not operating in the HRS mode, vessels would be able to remain at the NEG Port as necessary to support all such maintenance and repair scenarios. Therefore, NMFS considers that NEG Port maintenance and repair would have negligible impacts to marine mammal habitat in the activity area.

    Unanticipated Algonquin Pipeline Lateral Maintenance and Repair

    As stated earlier, proper care and maintenance of the Pipeline Lateral should minimize the likelihood of an unanticipated maintenance and/or repair event. However, unanticipated activities may occur from time to time if facility components become damaged or malfunction. Unanticipated repairs may range from relatively minor activities requiring minimal equipment and one or two diver/ROV support vessels to major activities requiring larger construction-type vessels similar to those used to support the construction and installation of the facility.

    Major repair activities, although unlikely, may include repairing or replacement of pipeline manifolds or sections of the Pipeline Lateral. This type of work would likely require the use of large specialty construction vessels such as those used during the construction and installation of the NEG Port and Pipeline Lateral. The duration of a major unplanned activity would depend upon the type of repair work involved and would require careful planning and coordination.

    Turbidity would likely be a potential effect of Pipeline Lateral maintenance and repair activities on listed species. In addition, the possible removal of benthic or planktonic species, resulting from relatively minor construction vessel water use requirements, as measured in comparison to EBRV water use, is unlikely to affect in a measurable way the food sources available to marine mammals. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

    Mitigation Measures

    In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.

    (a) General Marine Mammal Avoidance Measures

    All vessels shall utilize the International Maritime Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on their approach to and departure from the NEG Port and/or the repair/maintenance area at the earliest practicable point of transit in order to avoid the risk of whale strikes.

    Upon entering the TSS and areas where North Atlantic right whales are known to occur, including the Great South Channel Seasonal Management Area (GSC-SMA) and the SBNMS, EBRVs shall go into “Heightened Awareness” as described below.

    (1) Prior to entering and navigating the modified TSS, the Master of the vessel shall:

    • Consult Navigational Telex (NAVTEX), NOAA Weather Radio, the NOAA Right Whale Sighting Advisory System (SAS) or other means to obtain current right whale sighting information as well as the most recent Cornell acoustic monitoring buoy data for the potential presence of marine mammals;

    • Post a look-out to visually monitor for the presence of marine mammals;

    • Provide the USCG required 96-hour notification of an arriving EBRV to allow the NEG Port manager to notify Cornell of vessel arrival.

    (2) The look-out shall concentrate his/her observation efforts within the 2-mile radius ZOI from the maneuvering EBRV.

    (3) If marine mammal detection was reported by NAVTEX, NOAA Weather Radio, SAS and/or an acoustic monitoring buoy, the look-out shall concentrate visual monitoring efforts towards the areas of the most recent detection.

    (4) If the look-out (or any other member of the crew) visually detects a marine mammal within the 2-mile radius ZOI of a maneuvering EBRV, he/she will take the following actions:

    • The Officer-of-the-Watch shall be notified immediately; who shall then relay the sighting information to the Master of the vessel to ensure action(s) can be taken to avoid physical contact with marine mammals; and

    • The sighting shall be recorded in the sighting log by the designated look-out.

    In accordance with 50 CFR 224.103(c), all vessels associated with NEG Port and Pipeline Lateral activities shall not approach closer than 500 yards (yd, 460 m) to a North Atlantic right whale and 100 yd (91 m) to other whales to the extent physically feasible given navigational constraints. In addition, when approaching and departing the project area, vessels shall be operated so as to remain at least 1 kilometer away from any visually-detected North Atlantic right whales.

    In response to active right whale sightings and active acoustic detections, and taking into account exceptional circumstances, EBRVs as well as repair and maintenance vessels shall take appropriate actions to minimize the risk of striking whales. Specifically vessels shall:

    (1) Respond to active right whale sightings and/or Dynamic Management Areas (DMAs) reported on the Mandatory Ship Reporting (MSR) or SAS by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less if the vessel is within the boundaries of a DMA or within the circular area centered on an area 8 nautical miles (nmi) in radius from a sighting location;

    (2) Respond to active acoustic detections by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less within an area 5 nm in radius centered on the detecting auto-detection buoy (AB); and

    (3) Respond to additional sightings made by the designated look-outs within a 2-mile radius of the vessel by slowing the vessel to 10 knots or less and concentrating monitoring efforts towards the area of most recent sighting.

    All vessels operated under NEG and Algonquin must follow the established specific speed restrictions when calling at the NEG Port. The specific speed restrictions required for all vessels (i.e., EBRVs and vessels associated with maintenance and repair) consist of the following:

    (1) Vessels shall reduce their maximum transit speed while in the TSS from 12 knots or less to 10 knots or less from March 1 to April 30 in all waters bounded by straight lines connecting the following points in the order stated below unless an emergency situation dictates for an alternate speed. This area shall hereafter be referred to as the Off Race Point Seasonal Management Area (ORP-SMA) and tracks NMFS regulations at 50 CFR 224.105:

    42°30′ N. 70°30′ W. 41°40′ N. 69°57′ W. 42°30′ N. 69°45′ W. 42°12′ N. 70°15′ W. 41°40′ N. 69°45′ W. 42°12′ N. 70°30′ W. 42°04.8′ N. 70°10′ W. 42°30′ N. 70°30′ W.;

    (2) Vessels shall reduce their maximum transit speed while in the TSS to 10 knots or less unless an emergency situation dictates for an alternate speed from April 1 to July 31 in all waters bounded by straight lines connecting the following points in the order stated below. This area shall hereafter be referred to as the GSC-SMA and tracks NMFS regulations at 50 CFR 224.105:

    42°30′ N. 69°45′ W. 41°40′ N. 69°45′ W. 42°30′ N. 67°27′ W. 42°30′ N. 69°45′ W. 42°09′ N. 67°08.4′ W. 41°00′ N. 69°05′ W.;

    (3) Vessels are not expected to transit the Cape Cod Bay or the Cape Cod Canal; however, in the event that transit through the Cape Cod Bay or the Cape Cod Canal is required, vessels shall reduce maximum transit speed to 10 knots or less from January 1 to May 15 in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, with a northern boundary of 42°12′ N. latitude and the Cape Cod Canal. This area shall hereafter be referred to as the Cape Cod Bay Seasonal Management Area (CCB-SMA);

    (4) All Vessels transiting to and from the project area shall report their activities to the mandatory reporting Section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system;

    (5) All Vessels greater than or equal to 300 gross tons (GT) shall maintain a speed of 10 knots or less, unless an emergency situation requires speeds greater than 10 knots; and

    (6) All Vessels less than 300 GT traveling between the shore and the project area that are not generally restricted to 10 knots will contact the Mandatory Ship Reporting (MSR) system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 miles (mi) (8 km) of any sighting location, when traveling in any of the seasonal management areas (SMAs) or when traveling in any active DMA.

    (b) NEG Port-Specific Operations

    In addition to the general marine mammal avoidance requirements identified above, vessels calling on the NEG Port must comply with the following additional requirements:

    (1) EBRVs shall travel at 10 knots maximum speed when transiting to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For EBRVs, at 1.86 mi (3 km) from the NEG Port, speed will be reduced to 3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, unless an emergency situation dictates the need for an alternate speed;

    (2) EBRVs that are approaching or departing from the NEG Port and are within the Area to be Avoided (ATBA) surrounding the NEG Port, shall remain at least 1 km away from any visually-detected North Atlantic right whale and at least 100 yd (91 m) away from all other visually-detected whales unless an emergency situation requires that the vessel stay its course. During EBRV maneuvering, the Vessel Master shall designate at least one look-out to be exclusively and continuously monitoring for the presence of marine mammals at all times while the EBRV is approaching or departing from the NEG Port;

    (3) During NEG Port operations, in the event that a whale is visually observed within 1 km of the NEG Port or a confirmed acoustic detection is reported on either of the two ABs closest to the NEG Port (western-most in the TSS array), departing EBRVs shall delay their departure from the NEG Port, unless an emergency situation requires that departure is not delayed. This departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 1 km from the NEG Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the NEG Port, or visually within 1 km from the NEG Port.

    Vessel captains shall focus on reducing DP thruster power to the maximum extent practicable, taking into account vessel and Port safety, during the operation activities. Vessel captains will shut down thrusters whenever they are not needed.

    (c) Planned and Unplanned Maintenance and Repair Activities NEG Port

    (1) The Northeast Gateway shall conduct empirical source level measurements on all noise emitting from construction equipment and all vessels that are involved in maintenance/repair work.

    (2) If DP systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed above.

    (3) Northeast Gateway shall provide the NMFS Headquarters Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30-days notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Northeast Gateway shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.

    Pipeline Lateral

    (1) Pipeline maintenance/repair vessels less than 300 GT traveling between the shore and the maintenance/repair area that are not generally restricted to 10 knots shall contact the MSR system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 mi (8 km) of any sighting location, when travelling in any of the seasonal management areas (SMAs) as defined above.

    (2) Maintenance/repair vessels greater than 300 GT shall not exceed 10 knots, unless an emergency situation that requires speeds greater than 10 knots.

    (3) Planned maintenance and repair activities shall be restricted to the period between May 1 and November 30 when most of the majority of North Atlantic right whales are absent in the area.

    (4) Unplanned/emergency maintenance and repair activities shall be conducted utilizing anchor-moored dive vessel whenever operationally possible.

    (5) Algonquin shall also provide the NMFS Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30-day notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Algonquin shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.

    (6) If DP systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed in (5)(b)(ii).

    (7) In the event that a whale is visually observed within 0.5 mi (0.8 km) of a repair or maintenance vessel, the vessel superintendent or on-deck supervisor shall be notified immediately. The vessel's crew shall be put on a heightened state of alert and the marine mammal shall be monitored constantly to determine if it is moving toward the repair or maintenance area.

    (8) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @ 1 m or higher when a right whale is sighted within or approaching at 500 yd (457 meters) from the vessel. The source level of 139 dB corresponds to 120 dB received level at 500 yd (457 meters). Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (500 yd (457 meters)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.

    (9) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @ 1 m or higher when a marine mammal other than a right whale is sighted within or approaching at 100 yd (91 m) from the vessel. Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (100 yd (91 meters)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.

    (10) Algonquin and associated contractors shall also comply with the following:

    • Operations involving excessively noisy equipment (source level exceeding 139 dB re 1μPa @ 1 m) shall “ramp-up” sound sources, allowing whales a chance to leave the area before sounds reach maximum levels. In addition, Northeast Gateway, Algonquin, and other associated contractors shall maintain equipment to manufacturers' specifications, including any sound-muffling devices or engine covers in order to minimize noise effects. Noisy construction equipment shall only be used as needed and equipment shall be turned off when not in operation;

    • Any material that has the potential to entangle marine mammals (e.g., anchor lines, cables, rope or other construction debris) shall only be deployed as needed and measures shall be taken to minimize the chance of entanglement;

    • For any material that has the potential to entangle marine mammals, such material shall be removed from the water immediately unless such action jeopardizes the safety of the vessel and crew as determined by the Captain of the vessel; and

    • In the event that a marine mammal becomes entangled, the marine mammal coordinator and/or protected species observer (PSO) will notify NMFS (if outside the SBNMS), and SBNMS staff (if inside the SBNMS) immediately so that a rescue effort may be initiated.

    (11) All maintenance/repair activities shall be scheduled to occur between May 1 and November 30. However, in the event of unplanned/emergency repair work that cannot be scheduled during the preferred May through November work window, the following additional measures shall be followed for Pipeline Lateral maintenance and repair related activities between December and April:

    • Between December 1 and April 30, if on-board PSOs do not have at least 0.5-mile visibility, they shall call for a shutdown. At the time of shutdown, the use of thrusters must be minimized. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down;

    • Prior to leaving the dock to begin transit, the barge shall contact one of the PSOs on watch to receive an update of sightings within the visual observation area. If the PSO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel shall hold for 30 minutes and again get a clearance to leave from the PSOs on board. PSOs shall assess whale activity and visual observation ability at the time of the transit request to clear the barge for release;

    • Transit route, destination, sea conditions and any marine mammal sightings/mitigation actions during watch shall be recorded in the log book. Any whale sightings within 1,000 meters of the vessel shall result in a high alert and slow speed of 4 knots or less and a sighting within 750 m shall result in idle speed and/or ceasing all movement;

    • The material barges and tugs used in repair and maintenance shall transit from the operations dock to the work sites during daylight hours when possible provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug shall be 5 knots; and

    • All repair vessels must maintain a speed of 10 knots or less during daylight hours. All vessels shall operate at 5 knots or less at all times within 5 km of the repair area.

    Acoustic Monitoring Related Activities

    Vessels associated with maintaining the AB network operating as part of the mitigation/monitoring protocols shall adhere to the following speed restrictions and marine mammal monitoring requirements.

    (1) In accordance with 50 CFR 224.103 (c), all vessels associated with NEG Port activities shall not approach closer than 500 yd (460 meters) to a North Atlantic right whale.

    (2) All vessels shall obtain the latest DMA or right whale sighting information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other available means prior to operations.

    Mitigation Conclusions

    NMFS has carefully evaluated the mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals.

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned.

    • The practicability of the measure for applicant implementation.

    Based on our evaluation of the applicant's mitigation measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an incidental take authorization (ITA) for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. NE Gateway has provided marine mammal monitoring measures as part of the IHA application. It can be found at http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    (1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

    (2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;

    (3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    • Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    • Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information); and

    • Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    (4) An increased knowledge of the affected species; and

    (5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    Monitoring Measures (a) Vessel-Based Visual Monitoring

    Vessel-based monitoring for marine mammals shall be done by trained look-outs during NEG Port and Pipeline Lateral operations and maintenance and repair activities. The observers shall monitor the occurrence of marine mammals near the vessels during NEG Port and Pipeline Lateral related activities. Lookout duties include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the activities; and documenting “take by harassment.” The vessel look-outs assigned to visually monitor for the presence of marine mammals shall be provided with the following:

    (1) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic monitoring buoy detection data;

    (2) Binoculars to support observations;

    (3) Marine mammal detection guide sheets; and

    (4) Sighting log.

    (b) NEG Port Operations

    All individuals onboard the EBRVs responsible for the navigation duties and any other personnel that could be assigned to monitor for marine mammals shall receive training on marine mammal sighting/reporting and vessel strike avoidance measures.

    While an EBRV is navigating within the designated TSS, there shall be three people with look-out duties on or near the bridge of the ship including the Master, the Officer-of-the-Watch and the Helmsman-on-watch. In addition to the standard watch procedures, while the EBRV is transiting within the designated TSS, maneuvering within the ATBA, and/or while actively engaging in the use of thrusters, an additional look-out shall be designated to exclusively and continuously monitor for marine mammals.

    All sightings of marine mammals by the designated look-out, individuals posted to navigational look-out duties, and/or any other crew member while the EBRV is transiting within the TSS, maneuvering within the ATBA and/or when actively engaging in the use of thrusters, shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master. The Master or Officer-of-the-Watch shall ensure the required reporting procedures are followed and the designated marine mammal look-out records all pertinent information relevant to the sighting.

    Visual sightings made by look-outs from the EBRVs shall be recorded using a standard sighting log form. Estimated locations shall be reported for each individual and/or group of individuals categorized by species when known. This data shall be entered into a database and a summary of monthly sighting activity shall be provided to NMFS. Estimates of take and copies of these log sheets shall also be included in the reports to NMFS.

    (c) Planned and Unplanned Maintenance and Repair

    Two qualified and NMFS-approved PSOs shall be assigned to each vessel that will use DP systems during maintenance and repair related activities. PSOs shall operate individually in designated shifts to accommodate adequate rest schedules. Additional PSOs shall be assigned to additional vessels if AB data indicates that sound levels exceed 120 dB re 1 µPa, further then 100 m (328 ft) from these vessels.

    All PSOs shall receive NMFS-approved marine mammal observer training and be approved in advance by NMFS after review of their resume. All PSOs shall have direct field experience on marine mammal vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.

    PSOs (one primary and one secondary) shall be responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist and the secondary PSO will serve as data recorder and also assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals and sea turtles. Specifically PSO's shall:

    (1) Monitor at all hours of the day, scanning the ocean surface by eye for a minimum of 40 minutes every hour;

    (2) Monitor the area where maintenance and repair work is conducted beginning at daybreak using 25x power binoculars and/or hand-held binoculars. Night vision devices must be provided as standard equipment for monitoring during low-light hours and at night;

    (3) Conduct general 360° visual monitoring during any given watch period and target scanning by the observer shall occur when alerted of a whale presence;

    (4) Alert the vessel superintendent or construction crew supervisor of visual detections within 2 mi (3.31 km) immediately; and

    (5) Record all sightings on marine mammal field sighting logs. Specifically, all data shall be entered at the time of observation, notes of activities will be kept, and a daily report prepared and attached to the daily field sighting log form. The basic reporting requirements include the following:

    • Beaufort sea state;

    • Wind speed;

    • Wind direction;

    • Temperature;

    • Precipitation;

    • Glare;

    • Percent cloud cover;

    • Number of animals;

    • Species;

    • Position;

    • Distance;

    • Behavior;

    • Direction of movement; and

    • Apparent reaction to construction activity.

    In the event that a whale is visually observed within the 2-mi (3.31-km) ZOI of a DP vessel or other construction vessel that has shown to emit noise with source level in excess of 139 dB re 1 µPa @1 m, the PSO will notify the repair/maintenance construction crew to minimize the use of thrusters until the animal has moved away, unless there are divers in the water or an ROV is deployed.

    (d) Acoustic Monitoring

    Northeast Gateway shall deploy 10 ABs within the Separation Zone of the TSS for the operational life of the Project. The ABs shall be used to detect a calling North Atlantic right whale an average of 5 nmi from each AB. The AB system shall be the primary detection mechanism that alerts the EBRV Master to the occurrence of right whales, heightens EBRV awareness, and triggers necessary mitigation actions as described above. Northeast Gateway shall conduct short-term passive acoustic monitoring to document sound levels during:

    (1) The initial operational events in the 2015-2016 winter heating season;

    (2) Regular deliveries outside the winter heating season should such deliveries occur; and

    (3) Scheduled and unscheduled maintenance and repair activities.

    Northeast Gateway shall conduct long-term monitoring of the noise environment in Massachusetts Bay in the vicinity of the NEG Port and Pipeline Lateral using marine autonomous recording units (MARUs) when there is anticipated to be more than 5 NEG shipments in a 30-day period or over 20 shipments in a 6-month period.

    The acoustic data collected shall be analyzed to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback and right whales) within approximately 10 nmi of the NEG Port and shall measure and document the noise “budget” of Massachusetts Bay so as to eventually assist in determining whether or not an overall increase in noise in the Bay associated with the Project might be having a potentially negative impact on marine mammals.

    Northeast Gateway shall make all acoustic data, including data previously collected by the MARUs during prior construction, operations, and maintenance and repair activities, available to NOAA. Data storage will be the responsibility of NOAA.

    (e) Acoustic Whale Detection and Response Plan NEG Port Operations

    (1) Ten ABs that have been deployed since 2007 shall be used to continuously screen the low-frequency acoustic environment (less than 1,000 Hertz) for right whale contact calls occurring within an approximately 5-nm radius from each buoy (the AB's detection range).

    (2) Once a confirmed detection is made, the Master of any EBRVs operating in the area will be alerted immediately.

    NEG Port and Pipeline Lateral Planned and Unplanned/Emergency Repair and Maintenance Activities

    (1) If the repair/maintenance work is located outside of the detectible range of the 10 project area ABs, Northeast Gateway and Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the work to be conducted warrants the temporary installation of an additional AB(s) to help detect and provide early warnings for potential occurrence of right whales in the vicinity of the repair area.

    (2) The number of ABs installed around the activity site shall be commensurate with the type and spatial extent of maintenance/repair work required, but must be sufficient to detect vocalizing right whales within the 120-dB impact zone.

    (3) Should acoustic monitoring be deemed necessary during a planned or unplanned/emergency repair and/or maintenance event, active monitoring for right whale calls shall begin 24 hours prior to the start of activities.

    (4) Source level data from the acoustic recording units deployed in the NEG Port and/or Pipeline Lateral maintenance and repair area shall be provided to NMFS.

    Reporting Measures

    (a) Throughout NEG Port and Pipeline Lateral operations, Northeast Gateway and Algonquin shall provide a monthly Monitoring Report. The Monitoring Report shall include:

    • Both copies of the raw visual EBRV lookout sighting information of marine mammals that occurred within 2 miles of the EBRV while the vessel transits within the TSS, maneuvers within the ATBA, and/or when actively engaging in the use of thrusters, and a summary of the data collected by the look-outs over each reporting period;

    • Copies of the raw PSO sightings information on marine mammals gathered during pipeline repair or maintenance activities. This visual sighting data shall then be correlated to periods of thruster activity to provide estimates of marine mammal takes (per species/species class) that took place during each reporting period; and

    • Conclusion of any planned or unplanned/emergency repair and/or maintenance period, a report shall be submitted to NMFS summarizing the repair/maintenance activities, marine mammal sightings (both visual and acoustic), empirical source-level measurements taken during the repair work, and any mitigation measures taken.

    (b) During the maintenance and repair of NEG Port and Pipeline Lateral components, weekly status reports shall be provided to NOAA (both NMFS and SBNMS) using standardized reporting forms. The weekly reports shall include data collected for each distinct marine mammal species observed in the repair/maintenance area during the period that maintenance and repair activities were taking place. The weekly reports shall include the following information:

    • Location (in longitude and latitude coordinates), time, and the nature of the maintenance and repair activities;

    • Indication of whether a DP system was operated, and if so, the number of thrusters being used and the time and duration of DP operation;

    • Marine mammals observed in the area (number, species, age group, and initial behavior);

    • The distance of observed marine mammals from the maintenance and repair activities;

    • Changes, if any, in marine mammal behaviors during the observation;

    • A description of any mitigation measures (power-down, shutdown, etc.) implemented;

    • Weather condition (Beaufort sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover etc.);

    • Condition of the observation (visibility and glare); and

    • Details of passive acoustic detections and any action taken in response to those detections.

    (d) Injured/Dead Protected Species Reporting

    In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by the issued IHA, such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), NEG and/or Algonquin shall immediately cease activities and immediately report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS and the Northeast Regional Stranding Coordinators. The report must include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • The name and type of vessel involved;

    • The vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • The fate of the animal(s); and

    • Photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with NEG and/or Algonquin to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. NEG and/or Algonquin may not resume their activities until notified by NMFS via letter, email, or telephone.

    In the event that NEG and/or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), NEG and/or Algonquin will immediately (i.e., within 24 hours of the discovery) report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Northeast Stranding Coordinators. The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with NEG and/or Algonquin to determine whether modifications in the activities are appropriate.

    In the event that NEG or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized (if the IHA is issued) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), NEG and/or Algonquin shall report the incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Northeast Stranding Coordinators, within 24 hours of the discovery. NEG and/or Algonquin shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. NEG and/or Algonquin can continue its operations under such a case.

    Marine Mammal Monitoring Report From Previous IHA

    Prior marine mammal monitoring during NEG Port and Pipeline Lateral operation, maintenance and repair activities and monthly marine mammal observation memorandums (NEG 2010; 2015; 2016) indicate that only a small number of marine mammals were observed during these activities. Only one NEG Port operation occurred within the dates of the current IHA (starting December 23, 2015) and only one unidentified small whale was observed at a distance of 2 nmi from the NEG vessel on January 17, 2016. No other NEG Port and Pipeline Lateral related activity occurred during this period.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Only take by Level B harassment is anticipated as a result of NEG's operation and maintenance and repair activities. Anticipated take of marine mammals is associated with operation of dynamic positioning during the docking of the NEG vessels and positioning of maintenance and dive vessels, and by operations of certain machinery during maintenance and repair activities. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 108 dB. Certain species may have a behavioral reaction to the sound emitted during the activities. Hearing impairment is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the speed restriction measures that were described earlier in this document.

    The full suite of potential impacts to marine mammals was described in detail in the “Potential Effects of the Specified Activity on Marine Mammals” section found earlier in this document. The potential effects of sound from the NEG Port and Pipeline Lateral operations, maintenance and repair activities might include one or more of the following: masking of natural sounds and behavioral disturbance (Richardson et al., 1995). As discussed earlier in this document, the most common impact will likely be from behavioral disturbance, including avoidance of the ensonified area or changes in speed, direction, and/or diving profile of the animal. Hearing impairment (TTS and PTS) is highly unlikely to occur based on low noise source levels from the activities that would preclude marine mammals from being exposed to noise levels high enough to cause hearing impairment.

    For non-pulse sounds, such as those produced by operating DP thruster during vessel docking and supporting underwater construction and repair activities and the operations of various machineries that produces non-pulse noises, NMFS uses the 120 dB (rms) re 1 μPa isopleth to indicate the onset of Level B harassment.

    The basis for Northeast Gateway and Algonquin's “take” estimate is the number of marine mammals that would be exposed to sound levels in excess of 120 dB, which is the threshold used by NMFS for non-pulse sounds. For the NEG Port and Pipeline Lateral operations and maintenance and repair activities, the take estimates are determined by multiplying the 120-dB ensonified area by local marine mammal density estimates, and then multiplying by the estimated number of days such activities would occur during a year-long period. For the NEG Port operations, the 120-dB ensonified area is 56.8 km2 for a single visit during docking when running DP system. Although two EBRV docking with simultaneous DP system running was modeled, this situation would not occur in reality. For NEG Port and Pipeline Lateral maintenance and repair activities, modeling based on the empirical measurements showed that the distance of the 120-dB radius is expected to be 3.5 km, making a maximum 120-dB ZOI of approximately 40.7 km2.

    NEG Port and Algonquin Pipeline Lateral Activities Acoustic Footprints I. NEG Port Operations

    For the purposes of understanding the noise footprint of operations at the NEG Port, measurements taken to capture operational noise (docking, undocking, regasification, and EBRV thruster use) during the 2006 Gulf of Mexico field event were taken at the source. Measurements taken during EBRV transit were normalized to a distance of 328 ft (100 m) to serve as a basis for modeling sound propagation at the NEG Port site in Massachusetts Bay.

    Sound propagation calculations for operational activities were then completed at two positions in Massachusetts Bay to determine site-specific distances to the 120/160/180 dB isopleths:

    • Operations Position 1—Port (EBRV Operations): 70°36.261′ W and 42°23.790′ N; and

    • Operations Position 2—Boston TSS (EBRV Transit): 70°17.621′ W and 42°17.539′ N

    At each of these locations sound propagation calculations were performed to determine the noise footprint of the operation activity at each of the specified locations. Updated acoustic modeling was completed using Tetra Tech's underwater sound propagation program which utilizes a version of the publicly available Range Dependent Acoustic Model (RAM). Based on the U.S. Navy's Standard Split-Step Fourier Parabolic Equation, this modeling methodology considers range and depth along with a geo-referenced dataset to automatically retrieve the time of year information, bathymetry, and seafloor geoacoustic properties along the given propagation transects radiating from the sound source. The calculation methodology assumes that outgoing energy dominates over scattered energy, and computes the solution for the outgoing wave equation. An approximation is used to provide two-dimensional transmission loss values in range and depth, i.e., computation of the transmission loss as a function of range and depth within a given radial plane is carried out independently of neighboring radials, reflecting the assumption that sound propagation is predominantly away from the source. Transects were run along compass points at angular directions ranging from 0 to 360° in 5 degree increments. The received underwater sound levels at any location within the region of interest are computed from the 1/3-octave band source levels by subtracting the numerically modelled transmission loss at each 1/3-octave band center frequency and summing across all frequencies to obtain a broadband value. The resultant underwater sound pressure levels to the 120 dB isopleth is presented in Table 2.

    Table 2—Radii of 120 dB SPL Isopleths From NEG Port and Algonquin Pipeline Lateral Operations, Maintenance, and Repair Activities Activities Radius to 120 dB zone (m) 120-dB ensonified area (km2) One EBRV docking procedure with support vessel 4,250 56.8 Barge/tug (pulling & pushing)/construction vessel/barge @ mid-pipeline 3,500 40.7 II. NEG Port Maintenance and Repair

    Modeling analysis conducted for the construction of the NEG Port concluded that the only underwater noise of critical concern during NEG Port construction would be from vessel noises such as turning screws, engine noise, noise of operating machinery, and thruster use. To confirm these modeled results and better understand the noise footprint associated with construction activities at the NEG Port, field measurements were taken of various construction activities during the 2007 NEG Port and Pipeline Lateral Construction period. Measurements were taken and normalized as described to establish the “loudest” potential construction measurement event. One position within Massachusetts Bay was then used to determine site-specific distances to the 120/180 dB isopleths for NEG Port maintenance and repair activities:

    Construction Position 1. Port: 70°36.261′ W and 42°23.790′ N

    Sound propagation calculations were performed to determine the noise footprint of the construction activity. The results showed that the estimated distance from the loudest source involved in construction activities fell to 120 dB re 1 µPa at a distance of 3,500 m.

    III. Algonquin Pipeline Lateral Operation and Maintenance Activities

    Modeling analysis conducted during the NEG Port and Pipeline Lateral construction concluded that the only underwater noise of critical concern during such activities would be from vessel noises such as turning screws, engine noise, noise of operating machinery, and thruster use. As with construction noise at the NEG Port, to confirm modeled results and better understand the noise footprint associated with construction activities along the Pipeline Lateral, field measurements were taken of various construction activities during the 2007 NEG Port and Algonquin Pipeline Lateral construction period. Measurements were taken and normalized to establish the “loudest” potential construction measurement event. Two positions within Massachusetts Bay were then used to determine site-specific distances to the 120/160/180 dB isopleths:

    • Construction Position 2. PLEM: 70°46.755′ W and 42°28.764′ N; and

    • Construction Position 3. Mid-Pipeline: 70°40.842′ W and 42°31.328′ N

    Sound propagation calculations were performed to determine the noise footprint of the construction activity. The results of the distances to the 120-dB are shown in Table 2.

    Since the issuance of an IHA to NEG on December 22, 2015, there was only one NEG delivery at the NEG Port in January 2015. NEG expects that when the Port is under full operation, it will receive up to 65 NEG shipments per year, and would require 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Algonquin Pipeline Lateral maintenance and repair.

    Marine Mammal Densities

    The density calculation methodology applied to take estimates for this application is derived from the model results produced by Roberts et al. (2016) for the east coast region. These files are available Duke University's Habitat-based Cetacean Density Models Web site: http://http://seamap.env.duke.edu/models/Duke-EC-GOM-2015/. The estimated mean monthly abundance for each species for each month was an average of each month. Monthly values were not modeled for some species (e.g. killer whale), therefore, only the single value was reported. Estimates provided by the models are based on a grid cell size of 100 km2, therefore, model grid cell values were divided by 100 to determine animals per km2. Gray seal and harbor seal densities are not provided in the Roberts et al. (2016) models. Seal densities were derived from the Strategic Environmental Research and Development Program (SERDP) using the Navy Oparea Density Estimate (NODE) model for the Northeast Opareas. (Best et al., 2012). A summary of the each species density is provided in Table 3 below.

    Table 3—Estimated Species Densities [animals per km2] Species Mean monthly densities North Atlantic right whale 0.000838 Fin whale 0.00225 Humpback whale 0.00502 Minke whale 0.00354 Sei whale 0.000025 Long-finned Pilot whale 0.00135 Killer whale 0.0000089 Atlantic white-sided dolphin 0.0219 Bottlenose dolphin 0.0113 Common dolphin 0.0025 Risso's dolphin 0.00025 Harbor porpoise 0.0804 Gray seal 0.027 Harbor seal 0.097 Marine Mammal Take Calculation

    Based on NEG Gateway's expectations of up to 65 NEG shipments per year, and up to 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Algonquin Pipeline Lateral repair, the total estimated takes in a given year is calculated based on the following equation.

    N = ANEG*D*65 + APort*D*14 + APipeline*D*40

    Where N is the take number for a given species with average density of D. ANEG, APort, and APipeline are the 120-dB ZOI during EMRV vessel docking for regasification, NEG Port maintenance, and Algonquin Pipeline Lateral repair, respectively. In addition, numbers of some species that usually occur in groups were adjusted to reflect the average number of animals in a typical group. A summary of expected takes is provided in Table 4. Since it is very likely that individual animals could be “taken” by harassment multiple times, the percentages are the upper boundary of the animal population that could be affected. The actual number of individual animals being exposed or taken would likely be less. Since no population/stock estimates for killer whale and gray seal is available, the percentage of estimated takes for these species is unknown. Nevertheless, since Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur, NMFS has determined that the takes of 7 killer whales and 159 gray seals represent a small fraction of the population and stocks of these species (Table 4). There is no danger of injury, death, or hearing impairment from the exposure to these noise levels.

    Table 4—Estimated Annual Takes of Marine Mammals From the NEG Port and Algonquin Pipeline Lateral Operations and Maintenance and Repair Activities in Massachusetts Bay Species Population/stock Number of
  • exposure
  • based on
  • density
  • Estimated take Population
  • (%)
  • Right whale Western Atlantic 5 5 1.36. Fin whale Western North Atlantic 13 13 0.82. Humpback whale Gulf of Maine 30 30 3.59. Sei whale Nova Scotia 1 3 0.04. Minke whale Canadian East Coast 21 21 0.10. Long-finned pilot whale Western North Atlantic 8 15 0.14. Killer whale Western North Atlantic 1 7 Unknown.* Atlantic white-sided dolphin Western North Atlantic 129 129 0.26 Bottlenose dolphin Western North Atlantic Southern Migratory 67 67 0.58. Short-beaked common dolphin Western North Atlantic 15 40 0.01. Risso's dolphin Western North Atlantic 2 18 0.01. Harbor porpoise Gulf of Maine/Bay of Fundy 474 474 0.59. Harbor seal Western North Atlantic 571 571 0.75. Gray seal Western North Atlantic 159 159 Unknown.* * Killer whale and gray seal abundance information is not available.
    Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing

    On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This new guidance established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the Federal Register notice (81 FR 51694), NMFS explained the approach it would take during a transition period, wherein we balance the need to consider this new best available science with the fact that some applicants have already committed time and resources to the development of analyses based on our previous guidance and have constraints that preclude the recalculation of take estimates, as well as where the action is in the agency's decision-making pipeline. In that Notice, we included a non-exhaustive list of factors that would inform the most appropriate approach for considering the new Guidance, including: the scope of effects; how far in the process the applicant has progressed; when the authorization is needed; the cost and complexity of the analysis; and the degree to which the guidance is expected to affect our analysis.

    In this case, we performed an analysis using the new Guidance to calculate potential takes of marine mammal by Level A harassment. The results show that given the brief duration of the NEG operations, NEG Port maintenance, and Algonquin Pipeline Lateral repair activities, no marine mammals would be exposed to received noise levels that would cause auditory injury.

    Analysis and Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 4, given that the anticipated effects of NEG Port and Pipeline Lateral operations, maintenance, and repair activities on marine mammals (taking into account the prescribed mitigation) are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described separately in the analysis below.

    No injuries or mortalities are anticipated to occur as a result of NEG Port and Pipeline Lateral operations, maintenance, and repair activities, and none are authorized. Additionally, animals in the area are not expected to incur hearing impairment (i.e., TTS or PTS) or non-auditory physiological effects. The takes that are anticipated and authorized are expected to be limited to short-term Level B behavioral harassment. While NEG expects that when the Port is under full operation, it will receive up to 65 NEG shipments per year, and would require 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Pipeline Lateral maintenance and repair, schedules of NEG delivery would occur throughout the year, which include seasons certain marine mammals may not be present in the area.

    Effects on marine mammals are generally expected to be restricted to avoidance of a limited area around NEG's activities and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” Mitigation measures, such as controlled vessel speed, dedicated marine mammal observers, and passive acoustic monitoring, will ensure that takes are limited to Level B harassment and that these takes are minimized. In all cases, the effects are expected to be short-term, with no lasting biological consequence.

    Of the 14 marine mammal species likely to occur in the action area, North Atlantic right, humpback, fin, and sei whales are listed as endangered under the ESA. These species are also designated as “depleted” under the MMPA. None of the other species that may occur in the project area are listed as threatened or endangered under the ESA or designated as depleted under the MMPA.

    The project area of the NEG and Algonquin's activities is a biologically important area (BIA) for feeding for the North Atlantic right whale in February to April, humpback whale in March to December, fin whale year-round, and minke whale in March to November (LaBrecque et al., 2015). However, as stated earlier, the NEG and Algonquin's action would only involve short duration of elevated noise levels. In addition, based on prior monitoring reports, on average NEG only had one NEG delivery event per year, and this trend is likely to continue. Of note, although we have analyzed the impact of the authorized take on the stocks, the actual impacts to these species from the Northeast Gateway's operations would likely be less than what are analyzed here. There are no known important areas for other species within the action area.

    Regarding adverse effects to marine mammal habitat, the major potential impact would be the loss of prey due to water intake for cooling during the NEG regasification process. Under the requested water-use scenario, it is estimated that a dry-weight biomass of 916.5 kg of zooplankton per year (including 9.2 kg of large piscivorous fish) would be lost per year. The amount of loss is minor relative to the total biomass of the trophic level in Massachusetts Bay.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammal species and stocks and their habitat, and taking into consideration the implementation of the prescribed monitoring and mitigation measures, NMFS finds that the total marine mammal take from NEG and Algonquin's NEG Port and Pipeline Lateral operation, maintenance, and repair activities in Masschusetts Bay is not expected to adversely the annual rates of recruitment or survival, and therefore will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers

    The requested takes represent less than 3.6 percent of all populations or stocks potentially impacted (see Table 4 in this document). These authorized take represent the maximum percentage of each species or stock that could be taken by behavioral harassment or TTS (Level B harassment). The numbers of marine mammals authorized to be taken are small proportions of the total populations of the affected species or stocks.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    There are no subsistence uses of marine mammals in the project area and, thus, no subsistence uses impacted by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Our November 18, 2013, Federal Register notice of the proposed IHA described the history and status of Endangered Species Act (ESA) compliance for the NEG facility (78 FR 69049). As explained in that notice, the biological opinions for construction and operation of the facility only analyzed impacts on ESA-listed species from activities under the initial construction period and during operations, and did not take into consideration potential impacts to marine mammals that could result from the subsequent NEG Port and Pipeline Lateral maintenance and repair activities. In addition, NEG also revealed that significantly more water usage and vessel operating air emissions are needed from what was originally evaluated for the NEG Port operation. NMFS PR1 initiated consultation with NMFS Greater Atlantic Region Fisheries Office under section 7 of the ESA on the proposed issuance of an IHA to NEG under section 101(a)(5)(D) of the MMPA for the activities that include increased NEG Port and Pipeline Lateral maintenance and repair and water usage for the NEG Port operations this activity. A Biological Opinion was issued on November 21, 2014, and concluded that the action may adversely affect but is not likely to jeopardize the continued existence of ESA-listed right, humpback, fin, and sei whales.

    NMFS' Permits and Conservation Division has determined that the activities described in here are the same as those analyzed in the November 21, 2014, Biological Opinion. Therefore, a new consultation is not required for issuance of this IHA.

    National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed NEG Port and Pipeline Lateral. NMFS was a cooperating agency (as defined by the Council on Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 2007. NMFS issued a separate Record of Decision for issuance of authorizations pursuant to section 101(a)(5) of the MMPA for the construction and operation of the NEG Port Facility in Massachusetts Bay.

    We have reviewed the NEG's application for a renewed IHA for ongoing activities for 2015-16 and the 2014-15 monitoring report. Based on that review, we have determined that the action is very similar to that considered in the previous IHA. In addition, no significant new circumstances or information relevant to environmental concerns have been identified. Thus, we have determined that the preparation of a new or supplemental NEPA document is not necessary.

    Authorization

    As a result of these determinations, NMFS has issued an IHA to Northeast Gateway and Algonquin for activities associated with Northeast Gateway's NEG Port and Algonquin's Pipeline Lateral operations and maintenance and repair activities in the Massachusetts Bay, which also includes the mitigation, monitoring, and reporting requirements described in this Notice.

    Dated: December 28, 2016. Donna Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-31948 Filed 1-5-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF134 New England Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Recreational Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Wednesday, January 18, 2017, from 1:30 p.m. to 5:30 p.m.

    ADDRESSES:

    The meeting will be held at the Hilton Garden Inn, 5 Park Street, Freeport, ME 04032; telephone: (207) 865-1433.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Recreational Advisory Panel plans to discuss Fishing Year (FY) 2017 Recreational Measures for Gulf of Maine cod and haddock. They will also receive an overview of recent recreational catch and effort data. The Panel will also discuss results from the bioeconomic model to evaluate options for management measures. They will make recommendations to the Groundfish Committee on FY 2017 recreational measures for Gulf of Maine cod and haddock. The Panel also plans to receive an overview and discuss the Council's 2017 Groundfish Priorities and make recommendations to the Groundfish Committee, as appropriate. Other business will be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: January 3, 2017. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-00048 Filed 1-5-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF125 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council's (MAFMC's) Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (MC) will hold a public meeting.

    DATES:

    The meeting will be held on Thursday, January 26, 2017, from 10 a.m. to 5 p.m. For agenda details, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held at the Royal Sonesta Harbor Court, 550 Light St, Baltimore, MD 21202; telephone: (410) 234-0550.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331 or on their Web site at www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION:

    The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet to develop recommendations for commercial and recreational Annual Catch Limits (ACLs) and Annual Catch Targets (ACTs) for black sea bass for 2017-19. The Monitoring Committee will also develop recommendations for recreational management measures for black sea bass in 2017. Meeting materials will be posted to http://www.mafmc.org/ prior to the meeting.

    The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders at the Mid-Atlantic Council Office, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: January 3, 2017. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-00059 Filed 1-5-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF115 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the South Atlantic States; Amendment 43 AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of Intent (NOI) to prepare a draft environmental impact statement (DEIS); request for comments.

    SUMMARY:

    The NMFS Southeast Region, in collaboration with the South Atlantic Fishery Management Council (Council), intends to prepare a DEIS to describe and analyze a range of alternatives for management actions to be included in Amendment 43 to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region (Amendment 43). The purpose of Amendment 43 is to respond to the most recent stock assessment for red snapper in the South Atlantic, reduce discards of red snapper, and improve the quantity and quality of data collected from private recreational fishermen. This NOI is to solicit public comments on the scope of issues to be addressed in the DEIS.

    DATES:

    Written comments on the scope of issues to be addressed in the DEIS will be accepted until February 6, 2017.

    ADDRESSES:

    You may submit comments, identified by NOAA-NMFS-2016-0157, by either of the following methods:

    Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0157, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Frank Helies, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Frank Helies, NMFS Southeast Regional Office, telephone: 727-824-5305; or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    South Atlantic red snapper were determined to be overfished and undergoing overfishing in the 2009 Southeast Data, Assessment, and Review (SEDAR) stock assessment (SEDAR 15). In response to SEDAR 15, the Council recommended and NMFS subsequently implemented a prohibition on all harvest or possession of South Atlantic red snapper through Amendment 17A to the FMP (75 FR 76874, December 9, 2010). Through management measures implemented in Amendment 28 to the FMP, limited seasons for the harvest of red snapper occurred in the 2012, 2013, and 2014 fishing years (78 FR 44461, July 24, 2013). However, red snapper removals (total landings and dead discards) in the 2014 and 2015 fishing years exceeded the acceptable biological catch (ABC) and subsequent seasons' annual catch limits (ACLs) were set to zero and harvest and possession of red snapper was not allowed in the 2015 or 2016 fishing years.

    According to the most recent stock assessment, the red snapper stock in the South Atlantic is undergoing overfishing and is overfished (SEDAR 41 2016). The Council's Scientific and Statistical Committee (SSC) reviewed SEDAR 41 in May 2016 and considered the assessment to be best scientific information available. In response to SEDAR 41 and the SSC's recommendation, the Council is considering changes to the ACLs, the recreational annual catch target, and management reference points.

    Discard mortality, particularly from the recreational sector, continues to be a significant source of overall mortality for red snapper. Therefore, the Council is considering methods to reduce discard mortality in Amendment 43 including spatial and temporal closures (where harvest of all snapper-grouper species would be prohibited), changes to allowable fishing gear types (e.g., circle hooks), and requiring the use of descending devices and/or venting tools for released fish.

    Finally, the Council is evaluating ways to improve the quantity and quality of data collected from private recreational fishermen. The goal is to improve the data that are used to assess and manage the red snapper stock in the South Atlantic. The Council is considering a Federal permit requirement for private recreational fishermen to fish for or possess snapper-grouper species and a requirement for private recreational fishermen to complete electronic logbooks.

    NMFS, in collaboration with the Council, will develop a DEIS for Amendment 43 to describe and analyze alternatives to address the management needs described above, including the “no action” alternative. In accordance with the regulations issued by the Council on Environmental Quality (CEQ) for implementing the National Environmental Policy Act (NEPA; 40 CFR parts 1500-1508), NMFS, in collaboration with the Council, has identified preliminary environmental issues as a means to initiate discussion for scoping purposes only. These preliminary issues may not represent the full range of issues that eventually will be evaluated in the DEIS. A copy of the Amendment 43 draft options paper is available at: http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/index.html.

    Comments on the scope of the DEIS may be submitted in writing to NMFS (see ADDRESSES) during the 30-day scoping period. After the scoping period and throughout the development of Amendment 43, the Council will accept written comments on the action, and oral comments may be made during upcoming public scoping meetings. The upcoming scoping meetings will be held at locations and times listed in Table 1.

    Table 1—Scoping Meetings January 18, 2017—6 p.m., listening station January 19, 2017—6 p.m., listening station. Harvey Government Center, 1200 Truman Avenue, 2nd Floor, Key West, FL 33040 Hyatt Place Marathon, 1996 Overseas Highway, Marathon, FL 33050. January 23, 2017—6 p.m., in-person meeting January 24, 2017—6 p.m., in-person meeting. Lexington Hotel & Conference Center, 1515 Prudential Drive, Jacksonville, FL 32207 Hilton Cocoa Beach Oceanfront, 1550 North Atlantic Avenue, Cocoa Beach, FL 32931. January 25, 2017—6 p.m., in-person meeting January 26, 2017—6 p.m., in-person meeting. Flagler Place, 201 SW Flagler Avenue, Stuart, FL 34994 Hilton Key Largo, 97000 Overseas Highway, Key Largo, FL 33037. January 30, 2017—6 p.m., in-person meeting January 31, 2017—6 p.m., in-person meeting. Murrells Inlet Community Center, 4462 Murrells Inlet Road, Murrells Inlet, SC 29576 Crowne Plaza, 4831 Tanger Outlet Boulevard, North Charleston, SC 29418. February 1, 2017—6 p.m., in-person meeting February 6, 2017—6 p.m., in-person meeting. Richmond Hill City Center, 520 Cedar Street, Richmond Hill, GA 31324 Hilton Wilmington Riverside, 201 N. Water Street, Wilmington, NC 28401. February 7, 2017—6 p.m., in-person meeting February 8, 2017—6 p.m., in-person meeting. Hatteras Community Center, 57689 NC Highway 12, Hatteras, NC 27943 Doubletree by Hilton, 2717 W. Fort Macon Road, Atlantic Beach, NC 28512.

    After the DEIS associated with Amendment 43 is completed, it will be filed with the Environmental Protection Agency (EPA). After filing, the EPA will publish a notice of availability of the DEIS for public comment in the Federal Register. Consistent with the CEQ regulations, the DEIS will have a 45-day public comment period.

    The Council and NMFS will consider public comments received on the DEIS in developing the final environmental impact statement (FEIS) and before adopting final management measures for the amendment. NMFS will submit the consolidated final amendment and supporting FEIS to the Secretary of Commerce (Secretary) for review as required by the Magnuson-Stevens Fishery Conservation and Management Act.

    NMFS will announce, through a notification in the Federal Register, the availability of the final amendment for public review during the Department of Commerce Secretarial review period and will consider all public comments. During Secretarial review, NMFS will also file the FEIS with the EPA, and the EPA will publish a notice of availability for the FEIS in the Federal Register. This public comment period is expected to be concurrent with the Secretarial review period and will end prior to final agency action to approve, disapprove, or partially approve the Amendment 43.

    NMFS will announce, through a document published in the Federal Register, all public comment periods on the final amendment, its proposed implementing regulations, and the availability of its associated FEIS. NMFS will consider all public comments received during the Secretarial review period, whether they are on the final amendment, the proposed regulations, or the FEIS, prior to final agency action.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 30, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-32049 Filed 1-5-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF107 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Fishery-Independent Monitoring Activities AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; receipt of application for Letters of Authorization; request for comments and information.

    SUMMARY:

    NMFS has received a request from the Texas Parks and Wildlife Department (TPWD) for authorization to take marine mammals incidental to conducting fishery-independent monitoring activities in estuarine waters of Texas, over the course of five years. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of TPWD's request for the development and implementation of regulations governing the incidental taking of marine mammals. NMFS invites the public to provide information, suggestions, and comments on TPWD's application and request.

    DATES:

    Comments and information must be received no later than February 6, 2017.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing online at www.nmfs.noaa.gov/pr/permits/incidental/research.htm without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Availability

    Electronic copies of TPWD's application may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these documents, please call the contact listed above.

    Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) if certain findings are made and regulations are issued.

    Incidental taking shall be allowed if NMFS finds that the taking will have a negligible impact on the species or stock(s) affected and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).”

    Summary of Request

    On July 29, 2015, NMFS received an adequate and complete application from TPWD requesting authorization for take of marine mammals incidental to fishery-independent monitoring activities in Texas. The requested regulations would be valid for five years from the date of issuance. The proposed action requires the use of gillnets in Texas bays. Use of gillnets in Texas bays presents a reasonable likelihood of interaction with bottlenose dolphins (Tursiops truncatus). Therefore, TPWD requests authorization to incidentally take bottlenose dolphins.

    Specified Activities

    TPWD conducts a long-term standardized fishery-independent monitoring program to assess the relative abundance and size of finfish and shellfish in Texas bays. This program uses gillnets deployed according to a stratified random sample design, with each Texas bay system as an independent stratum. Gillnets are set overnight during ten-week spring and fall sampling seasons, with gillnets set perpendicularly to shore.

    Information Solicited

    Interested persons may submit information, suggestions, and comments concerning TPWD's request (see ADDRESSES). NMFS will consider all information, suggestions, and comments related to the request during the development of proposed regulations governing the incidental taking of marine mammals by TPWD, if appropriate.

    Dated: December 27, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2016-31946 Filed 1-5-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF135 Pacific Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Pacific Fishery Management Council (Pacific Council) is sponsoring a meeting to review new methods proposed to be used in groundfish stock assessments. The meeting is open to the public.

    DATES:

    The Groundfish Assessment Methodology Review Meeting will commence at 8:30 a.m. PST, Wednesday, January 25, 2017, and continue until 5 p.m. or as necessary to complete business for the day. The meeting will reconvene on Thursday, January 26, 2017, starting at 8:30 a.m. PST and continue as necessary to complete business for the day.

    ADDRESSES:

    On January 25, 2017, the Groundfish Assessment Methodology Review Meeting will be held in the auditorium at the NMFS Northwest Fisheries Science Center, 2725 Montlake Boulevard E, Seattle, WA 98112; telephone: (206) 860-3200. On January 26, 2017, the meeting will be held in the Heritage Room at the Seattle Yacht Club, 1807 East Hamlin Street, Seattle, WA 98112; telephone: (206) 325-1000. The Seattle Yacht Club is next door to the NMFS Northwest Fisheries Science Center.

    Council address: Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384; telephone: (503) 820-2280.

    FOR FURTHER INFORMATION CONTACT:

    Mr. John