Federal Register Vol. 82, No.40,

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-2017-0125; Directorate Identifier 2016-NM-193-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.

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

Required actions include an inspection for the presence of wiring shrouds and modification of any existing wiring shrouds. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0125.

We reviewed Bombardier Service Bulletin 84-25-169, Revision A, dated April 25, 2016. This service information describes procedures for an inspection to verify if wiring shrouds are installed, and modification of any existing wiring shrouds. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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.

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

We estimate the following costs to comply with this proposed AD:

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

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

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

We determined that this 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.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0126; Directorate Identifier 2016-NM-211-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.

We have received reports of frame web cracking at the station (STA) 344 system penetration holes between stringer S-22L and stringer S-24L. There were 11 reports of cracking on airplanes having accumulated between 25,713 and 68,093 total flight cycles and between 55,058 and 76,358 total flight hours. Crack lengths ranged from 0.78 inch to 1.57 inches. Frame cracking is the result of fatigue caused by cyclic pressurization of the fuselage. Undetected cracks can grow until the frames sever. Ultimately, multiple adjacent frames could be severed, or a severed frame could exist near cracks in the chem-milled fuselage skin. This condition, if not corrected, could result in uncontrolled decompression of the airplane.

We reviewed Boeing Alert Service Bulletin 737-53A1354, dated December 2, 2016. The service information describes procedures for repetitive high frequency eddy current (HFEC), detailed, and general visual inspections in certain locations of the frame web. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

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-2017-0126.

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.

Boeing Alert Service Bulletin 737-53A1354, dated December 2, 2016, 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.

We estimate that this proposed AD affects 82 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

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

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

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

We determined that this 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.

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

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-2017-0156; Directorate Identifier 2017-CE-003-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://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.

On May 22, 2003, we issued AD 2003-11-12, Amendment 39-13171 (68 FR 32629, June 2, 2003) (“AD 2003-11-12”). That AD required actions intended to address an unsafe condition on ZLIN AIRCRAFT a.s. Model Z-242L airplanes and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.

Since we issued AD 2003-11-12, a revision to the airworthiness limitations chapter of the aircraft maintenance manual has been issued, and the State of Design airworthiness authority took AD action, as identified below.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No.: 2017-0005, dated January 10, 2017 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

ZLIN AIRCRAFT a.s. has issued Z 242 L DOC. No. 003.22.1 Maintenance Manual—Vol. I. Chapter 9, Airworthiness Limitations, Revision No. 22, dated March 15, 2016. The revision to the Limitations sections introduces new and/or more restrictive safe life limits for the Model Z 242 airplane. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this proposed AD would affect 30 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the proposed requirement to incorporate the new revision into the Limitations section of the FAA-approved maintenance program (e.g., maintenance manual). The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this portion of this proposed AD on U.S. operators to be $2,550, or $85 per product.

The above costs only account for the time to incorporate the document into the Limitations section of the FAA-approved maintenance program. These proposed limitations would impose more restrictive life limits on some parts and provide new life limits for others. While the cost of these proposed replacements could be expensive, they would only be required to operate the airplane past the established times. Ultimately, the proposed estimated cost of replacing all life-limited parts could come close to the cost of the airplane. These proposed life limits are necessary to continue to operate the airplane in an airworthy manner.

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

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

We determined that this 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.

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

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

On May 8, 2015, we issued AD 2015-08-51, Amendment 39-18160 (80 FR 28172, May 18, 2015), which was sent previously as an emergency AD to all known U.S. owners and operators of Enstrom Model F-28A, 280, F-28C, F-28C-2, F-28C-2R, 280C, F-28F, F-28F-R, 280F, 280FX, and 480 helicopters. AD 2015-08-51 applies to helicopters with a spindle part number (P/N) 28-14282-11 or 28-14282-13 installed and requires conducting a one-time magnetic particle inspection (MPI) of the spindle for cracks and reporting the inspection results to the FAA. AD 2015-08-51 was prompted by a fatal accident and reports of spindles with cracks. The actions of AD 2015-08-51 are intended to detect a crack in a spindle and prevent loss of a main rotor blade and subsequent loss of control of the helicopter.

Since we issued AD 2015-08-51, we received additional reports of cracked spindles. Additionally, Enstrom revised its service information to reduce the time for the initial MPI from 3,500 hours TIS to 1,500 hours TIS and extend the compliance time for a recurring MPI of the spindles from 300 hours TIS to 500 hours TIS. Based on a review of the in-service data and a fatigue analysis, the FAA determined a life limit and repetitive MPIs were necessary to reduce the risk of a crack developing in a spindle. We also determined the reporting requirement in AD 2015-08-51 is no longer necessary.

We issued AD 2015-08-51 as interim action; this proposed AD would provide long-term requirements to prevent a spindle failure. Accordingly, this proposed AD would require an MPI of the spindle every 500 hours TIS until the spindle reaches its new life limit of 1,500 hours TIS. These proposed actions are intended to detect a crack in a spindle and prevent loss of a main rotor blade and subsequent loss of control of the helicopter.

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.

We reviewed Enstrom Service Directive Bulletin No. 0119, Revision 3, dated June 24, 2016, for Model F-28A, F-28C, F-28F, 280, 280C, 280F, and 280FX helicopters with a spindle P/N 28-14282-11 or 28-14282-13. We also reviewed Enstrom Service Directive Bulletin No. T-050, Revision 3, dated June 24, 2016, for Model 480 helicopters, serial numbers 5001 through 5004 and 5006, and with a spindle P/N 28-14282-13, except those aircraft modified with tension-torsion straps. Both service directive bulletins specify sending the spindle to Enstrom for an MPI before the spindle reaches 1,500 hours time-in-service (TIS), or within 5 hours TIS for those spindles with 1,500 or more hours TIS. Thereafter, the service directive bulletins specify returning the spindle to Enstrom for an MPI every 500 hours.

This proposed AD would require establishing a life limit of 1,500 hours TIS for spindle P/Ns 28-14282-11 and 28-14282-13. This proposed AD would also require an initial and recurring MPI of the spindles.

This proposed AD would require establishing a spindle life limit of 1,500 hours TIS. The service information does not specify a life limit.

This proposed AD would require that the MPI be conducted by a Level II or Level III inspector or equivalent. The service information specifies sending the spindle to Enstrom for an MPI.

This proposed AD would require an initial MPI before further flight for a spindle with 500 or more hours TIS, unless an MPI has been done within the last 500 hours TIS. The service information specifies an initial MPI compliance time of within 5 hours TIS for a spindle with 1,500 or more hours TIS.

We estimate that this proposed AD would affect 323 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour. Inspecting the spindles would take about 15 work-hours for an estimated cost of $1,275 per helicopter and $411,825 for the U.S. fleet per inspection cycle. Replacing a cracked spindle would cost $8,164 for parts and no additional work-hours. Replacing a set of three spindles that have reached their life limit would take about 14 work-hours and parts would cost $17,500 for a total cost of $18,690 per helicopter.

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

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

We determined that this 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, 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 to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

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-2017-9157; Directorate Identifier 2016-CE-039-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.

We issued AD 69-13-03, Amendment 39-1749 (38 FR 33765, December 7, 1973) (“AD 69-13-03”), for certain Piper Aircraft, Inc. Models PA-23, PA-23-160, PA-23-235, PA-23-250, PA-E23-250, and PA-30 airplanes. AD 69-13-03 requires inspection of the heater exhaust extension to determine if it is mild steel or stainless steel, repetitive inspections of the mild steel extensions for deterioration, replacing the extension as necessary, and overhaul of the combustion heater assembly. AD 69-13-03 resulted from the potential of carbon monoxide entering the airplane cabin. We issued AD 69-13-03 to prevent carbon monoxide from entering the airplane cabin.

Since we issued AD 69-13-03, we proposed an AD that applies to the Meggitt (Troy), Inc. combustion heaters installed on the airplanes AD 69-13-03 applies to. The proposed combustion heater AD would incorporate corrective actions for the heater that contradict the overhaul requirement of AD 69-13-03. The NPRM for the Meggitt (Troy), Inc. combustion heaters was published in the Federal Register on November 3, 2016 (81 FR 76532). You may view the docket for the Meggitt NPRM by going to http://www.regulations.gov and searching for Docket No. FAA-2014-0603.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain certain requirements of AD 69-13-03. This proposed AD would remove the requirement for overhaul of the heater assembly.

We estimate that this proposed AD affects 1,950 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD. The new requirements of this proposed AD add no additional economic burden:

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

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

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

We have 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 that the 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.

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

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-2017-0158; Directorate Identifier 2016-CE-040-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://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.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2016-0254, dated December 15, 2016, correction dated January 4, 2017 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Solo Kleinmotoren GmbH has issued Technische Mitteilung (English translation: Service Bulletin), Nr. 4600-6, Ausgabe 1 (English translation: Issue 1), dated November 16, 2016. This service information contains a software update that provides new settings to the engine control unit (ECU) to lower the load on the bearings of the crankshaft and 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 of this NPRM.

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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this proposed AD will affect 3 products of U.S. registry. We also estimate that it would take about 2 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 the proposed AD on U.S. operators to be $510, or $170 per product.

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

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

We determined that this 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.

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

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-2016-9055; Directorate Identifier 2016-NM-071-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.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A300 B4-600R series airplanes, Model A300 C4-605R Variant F airplanes, and Model A300 F4-600R series airplanes. The NPRM published in the Federal Register on September 8, 2016 (81 FR 62026). The NPRM was prompted by the results of a full stress analysis of the lower area of frame (FR) 40 that revealed a crack could occur in the forward fitting lower radius of FR 40 after a certain number of flight cycles. The NPRM proposed to require an inspection of the lower area of the FR 40 radius for cracking, and corrective action if necessary.

Since we issued the NPRM, we have determined that the area to be inspected for cracking in the lower area of the FR 40 radius should be extended. We have also determined that an additional inspection is necessary for airplanes previously inspected. In addition, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, issued EASA AD 2016-0179, dated September 12, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), which supersedes EASA AD 2016-0085, dated April 28, 2016. EASA AD 2016-0085 was the MCAI referred to in the NPRM.

The MCAI was issued to correct an unsafe condition for certain Airbus Model A300 B4-600R series airplanes, Model A300 C4-605R Variant F airplanes, and Model A300 F4-600R series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9055.

Airbus has issued Alert Operators Transmission (AOT) A57W009-16, Rev 01, including Appendices 1 and 2, dated July 13, 2016 (“AOT A57W009-16, Rev 01”). The service information describes procedures for inspecting the forward fitting lower radius of FR 40 for cracking, and corrective action. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

One commenter, Joseph Luna, supported the intent of the NPRM.

Airbus requested that the NPRM be revised to specify new MCAI and revised service information. Airbus noted that, after the NPRM was published, the service information and the MCAI referred to in the NPRM were revised. Airbus explained that Airbus AOT A57W009-16, Rev 00, dated February 25, 2016 (“AOT A57W009-16, Rev 00”), was revised to extend the area of inspection, and AOT A57W009-16, Rev 01, was published to include that information. Airbus also pointed out that, after the NPRM was published, EASA superseded EASA AD 2016-0085, dated April 28, 2016, and issued EASA AD 2016-0179, dated September 12, 2016, which extends the area of inspection and requires an additional action for airplanes previously inspected.

We agree with the commenter's request. We have revised this proposed AD to refer to AOT A57W009-16, Rev 01, as the appropriate source of service information for completing the proposed actions. We have also included a one-time additional inspection for airplanes on which the proposed inspection in paragraph (g) of this proposed AD was accomplished using the procedures in AOT A57W009-16, Rev 00. In addition, we added credit for the proposed inspection specified in paragraph (g) of this proposed AD, if that action was done before the effective date of the AD using the procedures in AOT A57W009-16, Rev 00, provided the proposed inspection specified in paragraph (h) of this proposed AD is accomplished. In addition, we revised the preamble and paragraph (m)(1) of this proposed AD to refer to the current EASA AD: AD 2016-0179, dated September 12, 2016.

United Parcel Service (UPS) requested that we delay issuance of the final rule until Airbus issues an inspection service bulletin that will specify the same actions described in AOT A57W009-16, Rev 00, and might include repetitive inspections that are not in AOT A57W009-16, Rev 00. UPS stated that Airbus has committed to issue the inspection service bulletin within the 4th quarter of 2016, and the service bulletin will supersede AOT A57W009-16, Rev 00. UPS suggested that, to reduce the issuance of subsequent alternative method of compliance (AMOC) requests and additional proposed rules, the final rule should be delayed until the Airbus inspection service bulletin is released. UPS noted that the areas to be inspected are currently included in another Airbus service bulletin and other regulations, based on an airplane's modification status. UPS stated that its fleet of airplanes affected by the NPRM is below the initial threshold, so there would not be an impact to the safety of its current fleet. UPS anticipated that the first inspection for its affected airplanes would not take place until 2025.

We do not agree with the commenter's request to delay issuance of a final rule until the Airbus inspection service bulletin is issued. As previously mentioned, after the issuance of the NPRM, Airbus revised AOT A57W009-16, Rev 00, to include an extended area of inspection, and we have revised this proposed AD to refer to the revised AOT (AOT A57W009-16, Rev 01). AOT A57W009-16, Rev 01, contains all of the necessary information to address the identified unsafe condition. When repetitive inspections are developed and related service information is available we will consider if additional rulemaking is necessary to mandate those actions.

In addition, although UPS may have time before the airplanes in its fleet are required to be inspected, other operators might have airplanes that have accumulated total flight cycles that are close to the threshold for the proposed initial inspection.

UPS requested that paragraph (g) of the proposed AD (in the NPRM) be revised to specify that the required actions are to be accomplished in accordance with “paragraph 4.2.2” of AOT A57W009-16, Rev 00, instead of “the procedures” in AOT A57W009-16, Rev 00. UPS stated that, as written, paragraph (g) of the proposed AD would require operators to accomplish all of the actions in AOT A57W009-16, Rev 00, but it is specifically the actions in paragraph 4.2.2 of AOT A57W009-16, Rev 00, that address the unsafe condition. UPS noted that Airbus Service Bulletin A300-57-6115 specifies the identical location, access, and inspection procedures as AOT A57W009-16, Rev 00, but that service bulletin identifies which actions are “Required for Compliance” (“RC”). To be in compliance with an AD, operators must accomplish all of the actions identified as “RC” in the service information that is required by an AD. The actions that are not identified as “RC” in the required service information are classified as recommended for compliance.

We agree with the commenter's request and have revised paragraphs (g) and (h) of this proposed AD to refer to the actions in paragraph 4.2.2 of the Airbus AOT, which are the actions required for compliance. As previously mentioned, we have revised this SNPRM to refer to AOT A57W009-16, Rev 01, which was issued after the NPRM was published. We note that this AOT does not include standard “RC” language.

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.

Certain changes described above expand the scope of the NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

We estimate that this proposed AD affects 94 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this proposed AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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

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

We determined that this 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.

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

OSHA published a final rule entitled Occupational Exposure to Beryllium on January 9, 2017 (82 FR 2470). On February 1, 2017, OSHA published a document in the Federal Register delaying the effective date of this rule from March 10, 2017 until March 21, 2017 (82 FR 8901 (February 1, 2017)). OSHA based this extension on the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review” (82 FR 8346 (January 24, 2017)) (“Memorandum”). The Memorandum directed the heads of Executive Departments and Agencies to temporarily postpone for sixty days from the date of the memorandum the effective dates of all regulations that had been published in the Federal Register but had not yet taken effect. The Memorandum also noted certain exceptions that do not apply here. OSHA therefore delayed the effective date for the rule entitled “Occupational Exposure to Beryllium” to March 21, 2017.

The Memorandum also directed agencies to consider further delaying the effective date for regulations beyond that 60-day period. After further review, OSHA has preliminarily determined that it is appropriate to further delay the effective date of this rule, for the purpose of further reviewing questions of fact, law, and policy raised therein. Therefore, in accordance with the Memorandum, OSHA proposes to further delay the effective date for the rule entitled “Occupational Exposure to Beryllium” to May 20, 2017. The proposed extension of the effective date will not affect the compliance dates of the beryllium rule.

OSHA seeks comment by March 13, 2017 on its proposal to extend the effective date by 60 days to May 20, 2017.

A. Background

On April 8, 2016, the Department of Labor (Department) published a final regulation defining who is a “fiduciary” of an employee benefit plan under section 3(21)(A)(ii) of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) as a result of giving investment advice to a plan or its participants or beneficiaries. The final rule also applies to the definition of a “fiduciary” of a plan (including an individual retirement account (IRA)) under section 4975(e)(3)(B) of the Internal Revenue Code of 1986 (Code). The final rule treats persons who provide investment advice or recommendations for a fee or other compensation with respect to assets of a plan or IRA as fiduciaries in a wider array of advice relationships than was true of the prior regulatory definition (the 1975 Regulation).1

On this same date, the Department published two new administrative class exemptions from the prohibited transaction provisions of ERISA (29 U.S.C. 1106), and the Code (26 U.S.C. 4975(c)(1)), as well as amendments to previously granted exemptions. The exemptions and amendments (collectively Prohibited Transaction Exemptions or PTEs) would allow, subject to appropriate safeguards, certain broker-dealers, insurance agents and others that act as investment advice fiduciaries, as defined under the final rule, to continue to receive a variety of forms of compensation that would otherwise violate prohibited transaction rules, triggering excise taxes and civil liability.

By Memorandum dated February 3, 2017, the President directed the Department to conduct an examination of the final rule to determine whether the rule may adversely affect the ability of Americans to gain access to retirement information and financial advice. As part of this examination, the Department was directed to prepare an updated economic and legal analysis concerning the likely impact of the final rule, which shall consider, among other things:

• Whether the anticipated applicability of the final rule has harmed or is likely to harm investors due to a reduction of Americans' access to certain retirement savings offerings, retirement product structures, retirement savings information, or related financial advice;

• Whether the anticipated applicability of the final rule has resulted in dislocations or disruptions within the retirement services industry that may adversely affect investors or retirees; and

• Whether the final rule is likely to cause an increase in litigation, and an increase in the prices that investors and retirees must pay to gain access to retirement services.

The President directed that if the Department makes an affirmative determination as to any of the above three considerations or the Department concludes for any other reason after appropriate review that the final rule is inconsistent with the priority of the Administration “to empower Americans to make their own financial decisions, to facilitate their ability to save for retirement and build the individual wealth necessary to afford typical lifetime expenses, such as buying a home and paying for college, and to withstand unexpected financial emergencies,” then the Department shall publish for notice and comment a proposed rule rescinding or revising the final rule, as appropriate and as consistent with law. The President's Memorandum was published in the Federal Register on February 7, 2017 at 82 FR 9675.

The Department is proposing to delay the applicability date of the final rule and PTEs for 60 days. The Department invites comments on the proposal to extend the applicability date of the final rule and PTEs for 60 days.2 For this purpose, the comment period will end on March 17, 2017.

There are approximately 45 days until the applicability date of the final rule and the PTEs. The Department believes it may take more time than that to complete the examination mandated by the President's Memorandum. Additionally, absent an extension of the applicability date, if the examination prompts the Department to propose rescinding or revising the rule, affected advisers, retirement investors and other stakeholders might face two major changes in the regulatory environment rather than one. This could unnecessarily disrupt the marketplace, producing frictional costs that are not offset by commensurate benefits. This proposed 60-day extension of the applicability date aims to guard against this risk. The extension would make it possible for the Department to take additional steps (such as completing its examination, implementing any necessary additional extension(s), and proposing and implementing a revocation or revision of the rule) without the rule becoming applicable beforehand. In this way, advisers, investors and other stakeholders would be spared the risk and expenses of facing two major changes in the regulatory environment. The negative consequence of avoiding this risk is the potential for retirement investor losses from delaying the application of fiduciary standards to their advisers.

This proposed extension of the applicability date of the final rule and related exemptions is an economically significant regulatory action within the meaning of section 3(f)(1) of Executive Order 12866, because it would likely have an effect on the economy of $100 million in at least one year. Accordingly, the Department has considered the costs and benefits of the proposed extension, and the Office of Management and Budget (OMB) has reviewed the proposed extension.

The Department's regulatory impact analysis (RIA) of the final rule and related exemptions predicted that resultant gains for retirement investors would justify compliance costs. The analysis estimated a portion of the potential gains for IRA investors at between $33 billion and $36 billion over the first 10 years. It predicted, but did not quantify, additional gains for both IRA and ERISA plan investors. The analysis predicted $16 billion in compliance costs over the first 10 years, $5 billion of which are first-year costs.

By deferring the rules' and related exemptions' applicability for 60 days, this proposal could delay its predicted effects, and give the Department time to make at least a preliminary determination whether it is likely to make significant changes to the rules and exemptions. The nature and magnitude of any such delay of the effects is highly uncertain, as some variation can be expected in the pace at which firms move to comply and mitigate advisory conflicts and at which advisers respond to such mitigation and adjust their recommendations to satisfy impartial conduct standards. Notwithstanding this uncertainty, some delay of the predicted effects seems likely, and seems likely to generate economically significant results. Moreover, the economic effects may be partially dependent on what action the Department ultimately takes, and in the shorter term, what the public anticipates the Department may do. Such delay could lead to losses for retirement investors who follow affected recommendations, and these losses could continue to accrue until affected investors withdraw affected funds or reinvest them pursuant to new recommendations.3 As an illustration, a 60-day delay in the commencement of the potential investor gains estimated in the RIA published on April 8, 2016, and referenced above, could lead to a reduction in those estimated gains of $147 million in the first year and $890 million over 10 years using a three percent discount rate. The equivalent annualized estimates are $104 million using a three percent discount rate and $87 million using a seven percent discount rate.

The estimates of potential investor losses presented in this illustration are derived in the same way as the estimates of potential investor gains that were presented in the RIA of the final rule and exemptions. Both make use of empirical evidence that front-end-load mutual funds that share more of the load with distributing brokers attract more flows but perform worse.4

Relative to the actual impact of the proposed delay on retirement investors, which is unknown, this illustration is uncertain and incomplete. The illustration is uncertain because it assumes that the final rule and exemptions would entirely eliminate the negative effect of load-sharing on mutual fund selection, and that the proposed delay would leave that negative effect undiminished for an additional 60 days. If some of that negative effect would remain under the final rule, and/or if market changes in anticipation of the final rule have already diminished that negative effect, then the impact of the proposed delay would be smaller than illustrated here. The illustration is incomplete because it represents only one negative effect (poor mutual fund selection) of one source of conflict (load sharing), in one market segment (IRA investments in front-load mutual funds). Not included are additional potential negative effects of the proposed delay that would be associated with other sources of potential conflicts, such as revenue sharing, or mark-ups in principal transactions, other effects of conflicts such as excessive or poorly timed trading, and other market segments susceptible to conflicts such as annuity sales to IRA investors and advice rendered to ERISA-covered plan participants or sponsors. The Department invites comments on these points and on the degree to which they may cause the illustration to overstate or understate the potential negative effect of the proposed delay on retirement investors. And if some entities are subject to the current regulation, but might not be subject to the same sort of regulation under a revised proposal, the industry might avoid additional costs now that would otherwise become sunk costs. A 60-day delay could defer or reduce start-up compliance costs, particularly in circumstances where more gradual steps toward preparing for compliance are less expensive. However, due to lack of systematic evidence on the portion of compliance activities that have already been undertaken, thus rendering the associated costs sunk, the Department is unable to quantify the potential change in start-up costs that would result from a delay in the applicability date. The Department requests comment, including data that would contribute to estimation of such impacts. Beyond start-up costs, the delay would likely relieve industry of relevant day-to-day compliance burdens; using the inputs and methods that appear in the April 2016 RIA, the Department estimates associated savings of $42 million during those 60 days. The equivalent annualized values are $8 million using a three percent discount rate and $9 million using a seven percent discount rate.

These savings are substantially derived from foregone on-going compliance requirements related to the transition notice requirements for the Best Interest Contract Exemption, data collection to demonstrate satisfaction of fiduciary requirements, and retention of data to demonstrate the satisfaction of conditions of the exemption during the Transition Period. Estimates are derived from the “Data Collection,” “Record Keeping (Data Retention),” and “Supervisory, Compliance, and Legal Oversight” categories discussed in section 5.3.1 of the final RIA and reductions in the number of the transition notices that will be delivered.

The Department also considered the possible impact of a longer extension of the applicability date. Under the RIA published on April 8, 2016, a 180-day delay in the application of the fiduciary standards and conditions set forth in the rule and exemptions would reduce the same portion of potential investor gains from the rule by $441 million in the first year and $2.7 billion over 10 years, while relieving industry of 180 days of day-to-day compliance burdens, worth an estimated $126 million.

The costs and benefits of this proposal are highly uncertain, and may vary widely depending on several variables, including the eventual results of the Department's examination of the final rule and exemptions pursuant to the Presidential Memorandum, and the amount of time that will be required to complete that review and, if appropriate, rescind or revise the rule. The Department invites comments as to whether the benefits of the proposed 60-day delay, including the potential reduction in transition costs should the Department ultimately revise or rescind the final rule, justify its costs, including the potential losses to affected retirement investors. The Department also invites comments on whether it should delay applicability of all, or only part, of the final rule's provisions and exemption conditions. For example, under an alternative approach, the Department could delay certain aspects (e.g., notice and disclosure provisions) while permitting others (e.g., the impartial conduct standards set forth in the exemptions) to become applicable on April 10, 2017. The Department also invites comments regarding whether a different delay period would best serve the interests of investors and the industry.

The PRA (Pub. L. 104-13) prohibits federal agencies from conducting or sponsoring a collection of information from the public without first obtaining approval from the Office of Management and Budget (OMB). See 44 U.S.C. 3507. Additionally, members of the public are not required to respond to a collection of information, nor be subject to a penalty for failing to respond, unless such collection displays a valid OMB control number. See 44 U.S.C. 3512.

OMB has approved information collections contained in the final fiduciary rule and new and amended PTEs. The Department is not modifying the substance of the information collection requests (ICRs) at this time; therefore, no action under the PRA is required. The information collections will become applicable at the same time the rule and exemptions become applicable. The information collection requirements contained in the final rule and exemptions are discussed below.

Final Rule: The information collections in the final rule are approved under OMB Control Number 1210-0155. Paragraph (b)(2)(i) requires that certain “platform providers” provide disclosure to a plan fiduciary. Paragraph (b)(2)(iv)(C) and (D) require asset allocation models to contain specific information if they furnish and provide certain specified investment educational information. Paragraph (c)(1) requires a disclosure to be provided by a person to an independent plan fiduciary in certain circumstances for them to be deemed not to be an investment advice fiduciary. Finally, paragraph (c)(2) requires certain counterparties, clearing members and clearing organizations to make a representation to certain parties so they will not be deemed to be investment advice fiduciaries regarding certain swap transactions required to be cleared under provisions of the Dodd-Frank Act.

For a more detailed discussion of the information collections and associated burden, see the Department's PRA analysis at 81 FR 20946, 20994.

PTE 2016-01, the Best Interest Contract Exemption: The information collections in PTE 2016-01, the Best Interest Contract Exemption, are approved under OMB Control Number 1210-0156. The exemption requires disclosure of material conflicts of interest and basic information relating to those conflicts and the advisory relationship (Sections II and III), contract disclosures, contracts and written policies and procedures (Section II), pre-transaction (or point of sale) disclosures (Section III(a)), web-based disclosures (Section III(b)), documentation regarding recommendations restricted to proprietary products or products that generate third party payments (Section (IV)), notice to the Department of a Financial Institution's intent to rely on the exemption, and maintenance of records necessary to prove that the conditions of the exemption have been met (Section V). Finally, Section IX provides a transition period under which relief from these prohibitions is available for Financial Institutions and advisers during the period between the applicability date and January 1, 2018 (the “Transition Period”). As a condition of relief during the Transition Period, Financial Institutions must provide a disclosure with a written statement of fiduciary status and certain other information to all retirement investors (in ERISA plans, IRAs, and non-ERISA plans) prior to or at the same time as the execution of recommended transactions. For a more detailed discussion of the information collections and associated burden, see the Department's PRA analysis at 81 FR 21002, 21071.

PTE 2016-02, the Prohibited Transaction Exemption for Principal Transactions in Certain Assets Between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs (Principal Transactions Exemption): The information collections in PTE 2016-02, the Principal Transactions Exemption, are approved under OMB Control Number 1210-0157. The exemption requires Financial Institutions to provide contract disclosures and contracts to Retirement Investors (Section II), adopt written policies and procedures (Section IV), make disclosures to Retirement Investors and on a publicly available Web site (Section IV), maintain records necessary to prove they have met the exemption conditions (Section V), and provide a transition disclosure to Retirement Investors (Section VII).

For a more detailed discussion of the information collections and associated burden, see the Department's PRA analysis at 81 FR 21089, 21129.

Amended PTE 75-1: The information collections in Amended PTE 75-1 are approved under OMB Control Number 1210-0092. Part V, as amended, requires that prior to an extension of credit, the plan must receive from the fiduciary written disclosure of (i) the rate of interest (or other fees) that will apply and (ii) the method of determining the balance upon which interest will be charged in the event that the fiduciary extends credit to avoid a failed purchase or sale of securities, as well as prior written disclosure of any changes to these terms. It also requires broker-dealers engaging in the transactions to maintain records demonstrating compliance with the conditions of the PTE.

For a more detailed discussion of the information collections and associated burden, see the Department's PRA analysis at 81 FR 21139, 21145. The Department concluded that the ICRs contained in the amendments to Part V impose no additional burden on respondents.

Amended PTE 86-128: The information collections in Amended PTE 86-128 are approved under OMB Control Number 1210-0059. As amended, Section III of the exemption requires Financial Institutions to make certain disclosures to plan fiduciaries and owners of managed IRAs in order to receive relief from ERISA's and the Code's prohibited transaction rules for the receipt of commissions and to engage in transactions involving mutual fund shares. Financial Institutions relying on either PTE 86-128 or PTE 75-1, as amended, are required to maintain records necessary to demonstrate that the conditions of these exemptions have been met.

For a more detailed discussion of the information collections and associated burden, see the Department's PRA analysis at 81 FR 21181, 21199.

Amended PTE 84-24: The information collections in Amended PTE 84-24 are approved under OMB Control Number 1210-0158. As amended, Section IV(b) of PTE 84-24 requires Financial Institutions to obtain advance written authorization from an independent plan fiduciary or IRA holder and furnish the independent fiduciary or IRA holder with a written disclosure in order to receive commissions in conjunction with the purchase of Fixed Rate Annuity Contracts and Insurance Contracts. Section IV(c) of PTE 84-24 requires investment company Principal Underwriters to obtain approval from an independent fiduciary and furnish the independent fiduciary with a written disclosure in order to receive commissions in conjunction with the purchase by a plan of securities issued by an investment company Principal Underwriter. Section V of PTE 84-24, as amended, requires Financial Institutions to maintain records necessary to demonstrate that the conditions of the exemption have been met.

For a more detailed discussion of the information collections and associated burden, see the Department's PRA analysis at 81 FR 21147, 21171.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq.) or any other laws. Unless the head of an agency certifies that a proposed rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the RFA requires that the agency present an initial regulatory flexibility analysis (IRFA) describing the rule's impact on small entities and explaining how the agency made its decisions with respect to the application of the rule to small entities. Small entities include small businesses, organizations and governmental jurisdictions.

The Department has determined that this rulemaking will have a significant economic impact on a substantial number of small entities, and hereby provides this IRFA. As noted above, the Department is proposing regulatory action to delay the applicability of the final fiduciary rule and exemptions. The proposed regulation is intended to reduce any unnecessary disruption that could occur in the marketplace if the applicability date of the final rule and exemptions occurs while the Department examines the final rule and exemptions as directed in the Presidential Memorandum.

The Small Business Administration (SBA) defines a small business in the Financial Investments and Related Activities Sector as a business with up to $38.5 million in annual receipts. The Department examined the dataset obtained from SBA which contains data on the number of firms by NAICS codes, including the number of firms in given revenue categories. This dataset allowed the Department to estimate the number of firms with a given NAICS code that falls below the $38.5 million threshold to be considered a small entity by the SBA. However, this dataset alone does not provide a sufficient basis for the Department to estimate the number of small entities affected by the rule. Not all firms within a given NAICS code would be affected by this rule, because being an ERISA fiduciary relies on a functional test and is not based on industry status as defined by a NAICS code. Further, not all firms within a given NAICS code work with ERISA-covered plans and IRAs.

Over 90 percent of broker-dealers (BDs), registered investment advisers (RIAs), insurance companies, agents, and consultants are small businesses according to the SBA size standards (13 CFR 121.201). Applying the ratio of entities that meet the SBA size standards to the number of affected entities, based on the methodology described at greater length in the RIA of the final fiduciary duty rule, the Department estimates that the number of small entities affected by this proposed rule is 2,438 BDs, 16,521 RIAs, 496 insurers, and 3,358 other ERISA service providers. For purposes of the RFA, the Department continues to consider an employee benefit plan with fewer than 100 participants to be a small entity. The 2013 Form 5500 filings show nearly 595,000 ERISA covered retirement plans with less than 100 participants.

Based on the foregoing, the Department estimates that small entities would save approximately $38 million in compliance costs due to the proposed 60-day delay of the applicability date for the final fiduciary rule and exemptions.5 These cost savings are substantially derived from foregone on-going compliance requirements related to the transition notice requirements for the Best Interest Contract Exemption, data collection to demonstrate satisfaction of fiduciary requirements, and retention of data to demonstrate the satisfaction of conditions of the exemption during the Transition Period. The Department invites comments regarding this assessment.

The proposed rule is subject to the Congressional Review Act (CRA) provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.) and, if finalized, would be transmitted to Congress and the Comptroller General for review.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. For purposes of the Unfunded Mandates Reform Act, as well as Executive Order 12875, this proposal does not include any federal mandate that we expect would result in such expenditures by state, local, or tribal governments, or the private sector. The Department also does not expect that the proposed rule will have any material economic impacts on State, local or tribal governments, or on health, safety, or the natural environment.

Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the agency publicly proposes for notice and comment, or otherwise promulgates, a new regulation. In furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. OMB's interim guidance, issued on February 2, 2017, explains that for Fiscal Year 2017 the above requirements only apply to each new “significant regulatory action that imposes costs.” OMB has determined that this proposed rule does not impose costs that would trigger the above requirements of Executive Order 13771.

As noted above, pursuant to the President's Memorandum, the Department is now examining the fiduciary duty rule to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice. As part of this examination, the Department will prepare an updated economic and legal analysis concerning the likely impacts of the rule.

The Department's April 2016 regulatory impact analysis of the final rule and related exemptions found that conflicted advice was widespread, causing harm to plan and IRA investors, and that disclosing conflicts alone would not adequately mitigate the conflicts or remedy the harm. The analysis concluded that by extending fiduciary protections the new rule would mitigate advisory conflicts and deliver gains for retirement investors.

The analysis cited economic evidence that advisory conflicts erode retirement savings. This evidence included:

• Statistical comparisons finding poorer risk-adjusted investment performance in more conflicted settings;

• experimental and audit studies revealing problematic adviser conduct;

• studies detailing gaps in consumers' financial literacy, errors in their financial decision-making, and the inadequacy of disclosure as a consumer protection;

• federal agency reports documenting abuse and investors' vulnerability;

• a 2015 study by the President's Council of Economic Advisers that attributed annual IRA investor losses of $17 billion to advisory conflicts;

• economic theory that predicts harmful market failures due to the information asymmetries that are present when ordinary investors rely on advisers who are far more expert than them, but highly conflicted; and

• overseas experience with harmful advisory conflicts and responsive reforms.

The analysis estimated that advisers' conflicts arising from load sharing on average cost their IRA customers who invest in front-end-load mutual funds between 0.5 percent and 1.0 percent annually in estimated foregone risk-adjusted returns, which the analysis concluded to be due to poor fund selection. The Department estimated that such underperformance could cost IRA investors between $95 billion and $189 billion over the next 10 years. The analysis further estimated that the final rule and exemptions would potentially reduce these losses by between $33 billion and $36 billion over 10 years. Investors' gains were estimated to grow over time, due both to net inflows and compounding of returns. According to the analysis, these estimates reflect only part of the potential harm from advisers' conflicts and the likely benefits of the new rule and exemptions. The analysis estimated that complying with the new rule would cost $16 billion over ten years, mainly reflecting the cost of consumer protections attached to the exemptions. The Department invites comment on whether the projected investor gains could be offset by a reduction in consumer investment, if consumers have reduced access to retirement savings advice as a result of the final rule, and whether there is any evidence of such reduction in consumer investment to date.

With respect to topics now under examination pursuant to the President's Memorandum, the analysis anticipated that the rule would have large and far-reaching effects on the markets for investment advice and investment products. It examined a variety of potential and anticipated market impacts. Such market impacts would extend beyond direct compliance activities and related costs, and beyond mitigation of existing advisory conflicts and associated changes in affected investment recommendations. It concluded that the final rule and exemptions would move markets toward a more optimal mix of advisory services and financial products. The Department invites comments on whether the final rule and exemptions so far have moved markets or appear likely to move markets in this predicted direction.

The analysis examined the likely impacts of the final rule and exemptions on small investors. It concluded that quality, affordable advisory services would be available to small plans and IRA investors under the final rule and exemptions. Subsection 8.4.5 reviewed ongoing and emerging innovation trends in markets for investment advice and investment products. The analysis indicated that these trends have the potential to deliver affordable, quality advisory services and investment products to all retirement investors, including small investors, and that the final rule and exemptions would foster competition to innovate in consumers' best interest. The Department invites comments on the emerging and expected effects of the final rule and exemptions on retirement investors' access to quality, affordable investment advice services and investment products, including small investors' access.

The Department invites comments that might help inform updates to its legal and economic analysis, including any issues the public believes were inadequately addressed in the RIA and particularly with respect to the issues identified in the President's Memorandum.

For more detailed information, commenters are directed to the final rule and final new and amended PTEs published in the Federal Register on April 8, 2016, at 81 FR pages 20946 through 21221, and to the Department's Full Report Regulatory Impact Analysis for Final Rule and Exemptions (RIA), and the additional RIA documents posted on the Department's Web site at www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/completed-rulemaking/1210-AB32-2.

The Department invites comments on market responses to the final rule and the PTEs to date, and on the costs and benefits attached to such responses. Some relevant questions include,

• Do firms anticipate changes in consumer demand for investment advice and investment products? If so, what types of changes are anticipated, and how will firms respond?

• Are firms making changes to their target markets? In particular, are some firms moving to abandon or deemphasize the small IRA investor or small plan market segments? Are some aiming to expand in that segment? What effects will these developments have on different customer segments, especially small IRA investors and small plans?

• Are firms making changes to their line-ups of investment products, and/or to product pricing? What are those changes, what is the motivation behind them, and will the changes advance or undermine firms' abilities to serve their customers' needs?

• Are firms making changes to their advisory services, and/or to the pricing of those services? Are firms changing the means by which customers pay for advisory services, and by which advisers are compensated? For example, are firms moving to increase or reduce their use of commission arrangements, asset-based fee arrangements, or other arrangements? With respect to any such changes, what is the motivation behind them, and will these changes advance or undermine firms' abilities to serve their customers' needs?

• Has implementation or anticipation of the rule led investors to shift investments between asset classes or types, and/or are such changes expected in the future? If so, what mechanisms have led or are expected to lead to these changes? How will the changes affect investors?

• Has implementation or anticipation of the rule led to increases or reductions in commissions, loads, or other fees? Have firms changed their minimum balance requirements for either commission-based or asset-based fee compensation arrangements?

• Has implementation or anticipation of the rule led to changes in the compensation arrangements for advisory services surrounding the sale of insurance products such as fixed-rate, fixed-indexed, and variable annuities?

• For those firms that intend to make use of the Best Interest Contract Exemption, what specific policies and procedures have been considered to mitigate conflicts of interest and ensure impartiality? How costly will those policies and procedures be to maintain?

• What innovations or changes in the delivery of financial advice have occurred that can be at least partially attributable to the rule? Will those innovations or changes make retirement investors better or worse off?

• What changes have been made to investor education both in terms of access and content in response to the rule and PTEs, and to what extent have any changes helped or harmed investors?

• Have market developments and preparation efforts since the final rule and PTEs were published in April 2016 illuminated whether or to what degree the final rule and PTEs are likely to cause an increase in litigation, and how any such increase in litigation might affect the prices that investors and retirees must pay to gain access to retirement services? Have firms taken steps to acquire or increase insurance coverage of liability associated with litigation? Have firms factored into their earnings projections or otherwise taken specific account of such potential liability?

• The Department's examination of the final rule and exemptions pursuant to the Presidential Memorandum, together with possible resultant actions to rescind or amend the rule, could require more time than this proposed 60-day extension would provide. What costs and benefit considerations should the Department consider if the applicability date is further delayed, for 6 months, a year, or more?

• Class action lawsuits may be brought to redress a variety of claims, including claims involving ERISA-covered plans. What can be learned from these class action lawsuits? Have they been particularly prone to abuse? To what extent have class action lawsuits involving ERISA claims led to better or worse outcomes for plan participants? What other impacts have these class action lawsuits had?

• Have market developments and preparation efforts since the final rule and PTEs were published in April 2016 illuminated particular provisions that could be amended to reduce compliance burdens and minimize undue disruptions while still accomplishing the regulatory objective of establishing an enforceable best interest conduct standard for retirement investment advice and empowering Americans to make their own financial decisions, save for retirement and build individual wealth?

• How has the pattern of market developments and preparation efforts occurring since the final rule and exemptions were published in April, 2016, compared with the implementation pattern prior to compliance deadlines in other jurisdictions, such as the United Kingdom, that have instituted new requirements for investment advice? What does a comparison of such patterns indicate about the Department's prospective estimates of the rule's and exemptions' combined impacts?

• Have there been new insights from or into academic literature on contracts or other sources that would aid in the quantification of the rule's and exemptions' effectiveness at ensuring advisers' adherence to a best interest standard? If so, what are the implications for revising the Best Interest Contract Exemption or other regulatory or exemptive provisions to more effectively ensure adherence to a best interest standard?

• To what extent have the rule's and exemptions' costs already been incurred and thus cannot, at this point in time, be lessened by regulatory revisions or delays? Can the portion of costs that are still avoidable be quantified or otherwise characterized? Are the rule's intended effects entirely contingent upon the costs that have not yet been incurred, or will some portion be achieved as a result of compliance actions already taken? How will they be achieved and will they be sustained?

• Have there been changes in the macroeconomy since early 2016 that would have implications for the rule's and exemptions' impacts (for example, a reduction in the unemployment rate, likely indicating lower search costs for workers who seek new employment within or outside of the financial industry)?

• What do market developments and preparation efforts that have occurred since the final rule and exemptions were published in April, 2016—or new insights into other available evidence—indicate regarding the portion of rule-induced gains to investors that consist of benefits to society (most likely, resource savings associated with reduced excessive trading and reduced unsuccessful efforts to outperform the market) and the portion that consists of transfers between entities in society?

• In response to the approaching applicability date of the rule, or other factors, has the affected industry already responded in such a way that if the rule were rescinded, the regulated community, or a subset of it, would continue to abide by the rule's standards? If this is the case, would the rule's predicted benefits to consumers, or a portion thereof, be retained, regardless of whether the rule were rescinded? What could ensure compliance with the standards if they were no longer enforceable legal obligations?

Upon completion of its examination, the Department may decide to allow the final rule and PTEs to become applicable, issue a further extension of the applicability date, propose to withdraw the rule, or propose amendments to the rule and/or the PTEs. In addition to any other comments, the Department specifically requests comments on each of these possible outcomes. The comment period for the broader purpose of examining the final rule and exemptions in response to the President's Memorandum will end on April 17, 2017.

For the reasons set forth above, the Department is proposing to amend the Best Interest Contract Exemption (Prohibited Transaction Exemption 2016-01); Class Exemption for Principal Transactions in Certain Assets Between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs (Prohibited Transaction Exemption 2016-02); and Prohibited Transaction Exemptions 75-1, 77-4, 80-83, 83-1, 84-24 and 86-128, as follows:

• The Best Interest Contract Exemption (PTE 2016-01) (81 FR 21002 (April 8, 2016), as corrected at 81 FR 44773 (July 11, 2016)) is amended by removing the date “April 10, 2017” and adding in its place “June 9, 2017” as the Applicability date in the introductory DATES section and in Section IX of the exemption.

• The Class Exemption for Principal Transactions in Certain Assets Between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs (PTE 2016-02) (81 FR 21089 (April 8, 2016), as corrected at 81 FR 44784 (July 11, 2016)), is amended by removing the date “April 10, 2017” and adding in its place “June 9, 2017” as the Applicability date in the introductory DATES section and in Section VII of the exemption.

• Prohibited Transaction Exemption 84-24 for Certain Transactions Involving Insurance Agents and Brokers, Pension Consultants, Insurance Companies, and Investment Company Principal Underwriters (49 FR 13208 (April 3, 1984), as corrected 49 FR 24819 (June 15, 1984), as amended 71 FR 5887 (February 3, 2006), and as amended 81 FR 21147 (April 8, 2016)) is amended by removing the date “April 10, 2017” and adding in its place “June 9, 2017” as the Applicability date in the introductory DATES section.

• Prohibited Transaction Exemption 86-128 for Securities Transactions Involving Employee Benefit Plans and Broker-Dealers (51 FR 41686 (November 18, 1986) as amended at 67 FR 64137 (October 17, 2002) and as amended at 81 FR 21181 (April 8, 2016)) and Prohibited Transaction Exemption 75-1, Exemptions from Prohibitions Respecting Certain Classes of Transactions Involving Employee Benefit Plans and Certain Broker-Dealers, Reporting Dealers and Banks, Parts I and II (40 FR 50845 (October 31, 1975), as amended at 71 FR 5883 (February 3, 2006), and as amended at 81 FR 21181 (April 8, 2016)) are amended by removing the date “April 10 2017” and adding in its place “June 9, 2017” as the Applicability date in the introductory DATES section.

• Prohibited Transaction Exemption 75-1, Exemptions from Prohibitions Respecting Certain Classes of Transactions Involving Employee Benefit Plans and Certain Broker-Dealers, Reporting Dealers and Banks, Parts III and IV, (40 FR 50845 (October 31, 1975), as amended at 71 FR 5883 (February 3, 2006), and as amended at 81 FR 21208 (April 8, 2016); Prohibited Transaction Exemption 77-4, Class Exemption for Certain Transactions Between Investment Companies and Employee Benefit Plans, 42 FR 18732 (April 8, 1977), as amended at 81 FR 21208 (April 8, 2016); Prohibited Transaction Exemption 80-83, Class Exemption for Certain Transactions Involving Purchase of Securities Where Issuer May Use Proceeds To Reduce or Retire Indebtedness to Parties in Interest, 45 FR 73189 (November 4, 1980), as amended at 67 FR 9483 (March 1, 2002) and as amended at 81 FR 21208 (April 8, 2016); and Prohibited Transaction Exemption 83-1 Class Exemption for Certain Transactions Involving Mortgage Pool Investment Trusts, 48 FR 895 (January 7, 1983), as amended at 67 FR 9483 (March 1, 2002) and as amended at 81 FR 21208 (April 8, 2016) are each amended by removing the date “April 10, 2017” and adding in its place “June 9, 2017” as the Applicability date in the introductory DATES section.

• Prohibited Transaction Exemption (PTE) 75-1, Exemptions from Prohibitions Respecting Certain Classes of Transactions Involving Employee Benefit Plans and Certain Broker-Dealers, Reporting Dealers and Banks, Part V, 40 FR 50845 (October 31, 1975), as amended at 71 FR 5883 (February 3, 2006) and as amended at 81 FR 21139 (April 8, 2016), is amended by removing the date “April 10, 2017” and adding in its place “June 9, 2017” as the Applicability Date in the introductory DATES section.

This document serves as a notice of pendency before the Department of proposed amendments to these PTEs.

For the reasons set forth above, the Department proposes to amend part 2510 of subchapter B of Chapter XXV of Title 29 of the Code of Federal Regulations as follows:

Section 709 of the Copyright Act (title 17, United States Code) addresses the situation where the “general disruption or suspension of postal or other transportation or communications services” prevents the timely receipt by the Office of “a deposit, application, fee, or any other material.” In such situations, and “on the basis of such evidence as the Register may by regulation require,” the Register of Copyrights may deem the receipt of such material to be timely, so long as it is actually received “within one month after the date on which the Register determines that the disruption or suspension of such services has terminated.” 17 U.S.C. 709. In addition, section 702 of the Copyright Act authorizes the Register to “establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title.” 17 U.S.C. 702.

The Copyright Office's regulations implementing section 709 can be found in 37 CFR 201.8. When the U.S. Copyright Office first promulgated these regulations, many of the Office's current electronic systems did not exist, and the regulations were not amended to specifically address outages of such systems. In 2015, the Office's online system used to register initial copyright claims was disrupted for over a week due to an equipment failure, highlighting the need for the Office to update its regulations to address the effect of a disruption or suspension of any Copyright Office electronic system on the Office's receipt of applications, fees, deposits, or any other materials.

Assigning a date of receipt based on the date materials would have been received but for the disruption of a Copyright Office electronic system is important in a number of contexts. For example, thousands of copyright claims are filed each year using the Office's electronic filing system, and the effective date of registration of a copyright is the date the application, fees, and deposit are received by the Copyright Office. 17 U.S.C. 410(d). That date can affect the copyright owner's rights and remedies, such as eligibility for statutory damages and attorney's fees. See 17 U.S.C. 412 (statutory damages and attorney's fees available only for works with effective date of registration prior to commencement of infringement or, for published works, within three months of first publication of the work). In addition, certain filings may be submitted to the Office only in electronic form. See 37 CFR 201.38 (online service providers must designate an agent to receive notifications of claimed copyright infringement through the Copyright Office's Web site).

The proposed rule accordingly makes several updates to 37 CFR 201.8 to account for electronic outages. Among other things, the proposed rule allows the Register to assign, as the date of receipt, the date on which she determines the material would have been received but for the disruption or suspension of the electronic system. Ordinarily, when a person submits materials through a Copyright Office electronic system, those materials are received in the Copyright Office on the date the submission was made. In cases where a person attempts to submit materials, but is unable to do so because of a disruption or suspension of a Copyright Office electronic system, the proposed rule will allow the Register to use the date that the attempt was made as the date of receipt. In cases where it is unclear when the attempt was made, the proposed rule provides the Register with discretion to determine the effective date of receipt on a case-by-case basis.

In addition, the proposed rule makes several changes to update the rule to account for more recent practices, and improve the usability and readability of the regulation. For instance, the proposed rule comprehensively updates paragraph (c) of section 201.8, which specifies the deadline for requesting an adjustment of the date of receipt in cases where a person attempted to submit material to the Office but was unable to do so due to the suspension or disruption of a Copyright Office electronic system. In the past, most materials were submitted to the Office on paper. Permitting the submission of requests prior to the issuance of the certificate of registration or recordation would have imposed unacceptable burdens on the Office due to difficulties in locating the pending applications or submissions to which the requests pertained. Now that the Office has implemented electronic systems, it is easier to make date adjustments, such as correcting the effective date of registration or date of recordation, while the application or submission is still pending. Accordingly, the Office proposes that persons seeking to adjust the date of receipt of any material that could not be submitted electronically due to a disruption or suspension of an Office electronic system, should be permitted to submit a request up to one year after the date on which the disruption or suspension has terminated under section 201.8(a).

Finally, the proposed rule adds sections 201.8(b)(2) and (c)(2), which address a related issue. On occasion, a person may deliver or attempt to deliver material to the Office, but the Office may have no record of having received such material or may have lost or misplaced that material after it was received. Although such situations are rare, they do occur occasionally as mail delivered to the Copyright Office must go through extensive security screening. If the person provides satisfactory evidence that he or she sent that material to the Office, the proposed rule would allow the Register to assign, as the date of receipt, the date on which the material would have been received. Such a request must be made no later than one year after the person delivered or attempted to deliver the application, fee, deposit, or other material to the Copyright Office. As a technical matter, these provisions do not implement section 709, which pertains to a general disruption of postal or other services; rather, the Office is implementing these provisions as an exercise of its general regulatory authority under section 702 of the Copyright Act.

For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR part 201 as follows:

The revisions and additions read as follows:

I. Background

By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

Through this action, EPA is proposing to conditionally approve the prong 4 portions of Tennessee's infrastructure SIP submissions for the 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5 NAAQS. All other applicable infrastructure SIP requirements for these SIP submissions have been or will be addressed in separate rulemakings. A brief background regarding the NAAQS relevant to today's proposal is provided below. For comprehensive information on these NAAQS, please refer to the Federal Register notices cited in the following subsections.

On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). States were required to submit infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013. For the 2010 1-hour NO2 NAAQS, this proposed action only addresses the prong 4 element of Tennessee's infrastructure SIP submission received on March 13, 2014. EPA has taken action on the remainder of Tennessee's March 13, 2014, SIP submission through separate rulemakings.

On June 2, 2010, EPA revised the primary SO2 NAAQS to an hourly standard of 75 parts per billion based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. See 75 FR 35520 (June 22, 2010). States were required to submit infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013. For the 2010 1-hour SO2 NAAQS, this proposed action only addresses the prong 4 element of Tennessee's infrastructure SIP submission received on March 13, 2014. EPA has taken action on the remainder of Tennessee's March 13, 2014, SIP submission through separate rulemakings.

On December 14, 2012, EPA revised the primary annual PM2.5 NAAQS to 12 micrograms per cubic meter (μg/m3) based on a 3-year average of the annual average PM2.5 concentrations. See 78 FR 3086 (January 15, 2013). States were required to submit infrastructure SIP submissions for the 2012 PM2.5 NAAQS to EPA no later than December 14, 2015. For the 2012 annual PM2.5 NAAQS, this proposed action only addresses the prong 4 element of Tennessee's infrastructure SIP submission received on December 16, 2015. Several of the other infrastructure elements of Tennessee's December 16, 2015, SIP submission have been addressed through a separate rulemaking and the remaining elements will be addressed in a future rulemaking.

The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “each such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of Title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, Title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.1 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment SIP requirements.2 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.3 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.4 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.5

Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.6

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires attainment plan SIP submissions required by part D to meet the “applicable requirements” of section 110(a)(2); thus, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of Title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.7 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).8 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.9 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of Section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including Greenhouse Gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; 10 (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.11 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in section 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.12 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 13 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.14

Section 110(a)(2)(D)(i)(II) requires a state's implementation plan to contain provisions prohibiting sources in that state from emitting pollutants in amounts that interfere with any other state's efforts to protect visibility under part C of the CAA (which includes sections 169A and 169B). The 2013 Guidance states that these prong 4 requirements can be satisfied by approved SIP provisions that EPA has found to adequately address any contribution of that state's sources to impacts on visibility program requirements in other states. The 2013 Guidance also states that EPA interprets this prong to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.

The 2013 Guidance lays out two ways in which a state's infrastructure SIP may satisfy prong 4. The first way is through an air agency's confirmation in its infrastructure SIP submission that it has an EPA-approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze SIP will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.

Alternatively, in the absence of a fully approved regional haze SIP, a state may meet the requirements of prong 4 through a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Such an infrastructure SIP submission would need to include measures to limit visibility-impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states.

Tennessee's March 13, 2014, 2010 1-hour NO2 and 2010 1-hour SO2 submission cites to the State's regional haze SIP and Clean Air Interstate Rule (CAIR) SIP as satisfying prong 4 requirements.15 In its December 16, 2015, 2012 annual PM2.5 submission, the State notes that it is developing a regional haze SIP revision with the intent to obtain a fully approved regional haze SIP and that Tennessee's SIP will be adequate with regard to prong 4 if EPA approves that revision. As explained below, EPA has not yet fully approved Tennessee's existing regional haze SIP because the SIP relies on CAIR to satisfy the nitrogen oxides (NOX) and SO2 Best Available Retrofit Technology (BART) requirements for the CAIR-subject electric generating units (EGUs) in the State and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals.16

EPA demonstrated that CAIR achieved greater reasonable progress toward the national visibility goal than BART for NOX and SO2 at BART-eligible EGUs in CAIR affected states, and revised the regional haze rule to provide that states participating in CAIR's cap-and-trade programs need not require affected BART-eligible EGUs to install, operate, and maintain BART for emissions of SO2 and NOX. See 70 FR 39104 (July 6, 2005). As a result, a number of states in the CAIR region designed their regional haze SIPs to rely on CAIR as an alternative to NOX and SO2 BART for CAIR-subject EGUs. These states also relied on CAIR as an element of a long-term strategy for achieving their reasonable progress goals.

The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008,17 but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR.18 On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR and thus to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS.

Due to CAIR's status as a temporary measure following the D.C. Circuit's 2008 ruling, EPA could not fully approve regional haze SIP revisions to the extent that they relied on CAIR to satisfy the BART requirement and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals. On these grounds, EPA finalized a limited approval and limited disapproval of Tennessee's regional haze SIP on April 24, 2012 (77 FR 24392), triggering the requirement for EPA to promulgate a Federal Implementation Plan (FIP) unless Tennessee submitted and EPA approved a SIP revision that corrected the deficiencies.

Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015). EPA began implementation of CSAPR, which replaced CAIR, on January 1, 2015. Therefore, Tennessee cannot rely on CAIR to satisfy the BART requirement and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals.

As mentioned above, a state may meet the requirements of prong 4 without a fully approved regional haze SIP by showing that its SIP contains adequate provisions to prevent emissions from within the state from interfering with other states' measures to protect visibility. Tennessee did not, however, provide a demonstration in any of the infrastructure SIP submissions subject to this proposed action that emissions within its jurisdiction do not interfere with other states' plans to protect visibility.

As discussed above, Tennessee does not have a fully approved regional haze SIP that meets the requirements of 40 CFR 51.308 and has not otherwise shown that its SIP contains adequate provisions to prevent emissions from within the state from interfering with other states' measures to protect visibility. Therefore, on December 7, 2016, Tennessee submitted a commitment letter to EPA requesting conditional approval of the prong 4 portions of the aforementioned infrastructure SIP revisions. In this letter, Tennessee commits to submit an infrastructure SIP revision, within one year of final conditional approval, that will satisfy the prong 4 requirements for the 2010 1-hour NO2 NAAQS, 2010 1-hour SO2 NAAQS, and 2012 annual PM2.5 NAAQS through reliance on a fully approved regional haze SIP or through an analysis showing that emissions from sources in Tennessee will not interfere with the attainment of the reasonable progress goals of other states. If the revised infrastructure SIP revision relies on a fully approved regional haze SIP revision to satisfy prong 4 requirements, Tennessee also commits to providing the necessary regional haze SIP revision to EPA within one year of EPA's final conditional approval.

If Tennessee meets its commitment within one year of final conditional approval, the prong 4 portions of the conditionally approved infrastructure SIP submissions will remain a part of the SIP until EPA takes final action approving or disapproving the new SIP revision(s). However, if the State fails to submit these revisions within the one-year timeframe, the conditional approval will automatically become a disapproval one year from EPA's final conditional approval and EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. If the conditional approval is converted to a disapproval, the final disapproval triggers the FIP requirement under CAA section 110(c).

As described above, EPA is proposing to conditionally approve the prong 4 portions of Tennessee's March 13, 2014, 2010 1-hour NO2 and 2010 1-hour SO2 infrastructure SIP submission and December 16, 2015, 2012 PM2.5 infrastructure SIP submission. All other outstanding applicable infrastructure requirements for these SIP submissions have been or will be addressed in separate rulemakings.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 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 proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

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

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

On January 11, 2017, EPA published in the Federal Register proposed requirements under section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for demonstrating financial responsibility.1 The proposed rule would create a new part in the CERCLA regulations to require financial responsibility under CERCLA section 108(b), define requirements for demonstration of financial responsibility, define requirements for maintenance of financial responsibility instruments, and establish criteria for owners and operators to be released from financial responsibility requirements. In addition, the proposed rule would establish specific financial responsibility requirements applicable to certain classes of mines and associated mineral processing facilities within the hardrock mining industry.

The comment period for the proposed rule was scheduled to end on March 13, 2017. Since publication, EPA has received more than 60 requests to extend that comment period to allow the public additional time to develop comments on the proposed rule. The requests were for extensions ranging from 60 days to 120 days, and came from members of Congress, mining companies, states, state groups, and trade associations. The requestors cited a number of reasons for needing an extended comment period including the size and complexity of the rule, and the amount of background information in the rulemaking docket.

In addition to requests to extend the comment period, EPA also received a request to not extend it. This request came from several environmental groups concerned that the rule move forward without delay.

EPA acknowledges that the proposed rule and supporting materials include a substantial amount of information, and that EPA's proposed section 108(b) requirements are novel. Those commenters who have requested an extension have provided information to EPA demonstrating that they need more time than the 60 days EPA originally allotted to evaluate EPA's proposal and supporting information and develop their comments. Thus, after considering these comments, EPA has decided to extend the comment period for 120 days. This document is the Agency's response to those persons who requested an extension of the comment period.

As a result of this action, comments on the proposed rule must be submitted by July 11, 2017.