Federal Register Vol. 82, No.6,

On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016. The Act specifically requires all agencies to review and update their FOIA regulations in accordance with its provisions, and the FLRA is making changes to its regulations accordingly. Among other things, the Act addresses a range of procedural issues that affect agency FOIA regulations, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute-resolution services at various times throughout the FOIA process. In addition to some minor non-substantive changes to correct typographical errors, make small stylistic adjustments for clarification, and streamline the language of some procedural provisions, the FLRA is making the following changes:

• Section 2411.4 is amended to emphasize the ability to view records electronically on the FLRA's Web site. Because all of the FLRA's disclosable records under 5 U.S.C. 552(a)(2) are available on the FLRA's Web site, section 2411.4 is also amended to eliminate the procedure for requesting use of a computer terminal at the FLRA's headquarters or one of its regional offices. Finally, section 2411.4 is amended to reflect the requirement under the FOIA Improvement Act of 2016 that agencies make available for public inspection, in electronic format, records that have been requested three or more times.

• Section 2411.6 is amended to notify requesters that they may contact the FLRA's Chief FOIA Officer or FOIA Public Liaison to discuss and to receive assistance in processing records requests. This section also updates the information that is listed in the agency's public FOIA logs to include, among other things, whether any exemptions were applied in processing a request. The section additionally describes the agency's consultation, referral, and coordination efforts with other agencies in processing FOIA requests.

• Section 2411.7 is amended to describe that the agency will inform a requester of the availability of the FLRA's FOIA Public Liaison to assist in processing his or her request.

• Section 2411.8 describes the time limits for processing FOIA requests and provides instances in which fees will not be assessed if an agency component fails to comply with deadlines listed in 5 U.S.C. 552(a)(4)(A). The section is amended to further describe exceptions under this rule, including, for instance, when unusual circumstances are present and when large numbers of documents are necessary to respond to the request. This section is also amended to explain that in the case of a denial, the agency will notify the requester of additional assistance that is available, specifically from the FLRA's FOIA Public Liaison and the Office of Government Information Services (OGIS).

• Section 2411.10, describing how a requester can appeal a denied request, is amended to provide the requester with 90 calendar days to appeal. This section also now notifies a requester of the dispute-resolution services offered by OGIS.

• Section 2411.11 is amended to again notify requesters of the availability of OGIS and its dispute-resolution services.

• Section 2411.12 is amended to state that no search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review. This section is also amended to elaborate on how a requester may submit a fee waiver, as well as to describe the obligations on the requester when a fee waiver is denied. Additionally, the section is amended to explain the consequences of failing to pay fees, such as the agency closing the matter without further processing the request.

• Section 2411.15 is amended to incorporate the additional reporting requirements related to the agency's FOIA annual report, including that the report will provide raw statistical data to the public.

This rule is internal and procedural rather than substantive. It does not create a right to obtain FLRA records, nor does it create any additional right or privilege not already available to the public as a result of the FOIA Improvement Act of 2016. It merely adopts the improvements mandated in the Act and builds upon the previous agency procedures for processing FOIA-related requests.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FLRA has determined that this regulation, as amended, will not have a significant impact on a substantial number of small entities.

This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The amended regulations contain no additional information-collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

This rule is published as a final rule. It is exempt from public comment, pursuant to 5 U.S.C. 553(b)(A), as a rule of “agency organization, procedure, or practice.” If you wish to contact the agency, please do so at the above listed address. However, before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For the reasons stated in the preamble, the Authority amends 5 CFR part 2411 as follows:

This final rule incorporates by reference the following standard into 10 CFR part 435: ICC International Energy Conservation Code (IECC), 2015 Edition (“IECC 2015”), May 30, 2014.

Copies of this standard are available from the International Code Council, 4051 West Flossmoor Road, Country Club Hills, IL 60478, 1-800-422-7233, http://www.iccsafe.org/.

Also, a copy of this standard is available for inspection at U.S. Department of Energy (DOE), Office of Energy Efficiency and Renewable Energy, Federal Energy Management Program, 8th Floor, 956 L'Enfant Plaza SW., Suite 8000, Washington, DC 20024. For information on the availability of this standard at DOE, contact Mr. Cyrus Nasseri at (202) 586-9138, or email [email protected].

This standard is discussed in greater detail in section VI.N of this document.

Section 305 of the Energy Conservation and Production Act (ECPA), as amended, requires DOE to determine whether the energy efficiency standards for new Federal buildings should be updated to reflect revisions to the IECC based on the cost-effectiveness of the revisions. (42 U.S.C. 6834(a)(3)(B)) Accordingly, DOE conducted a cost-effectiveness analysis that found the 2015 IECC to be cost-effective. DOE's assumptions and methodology for the cost-effectiveness of this rule are based on DOE's cost-effectiveness analysis of 2015 IECC, as well as DOE's Environmental Assessment (EA) for this rulemaking.1 Therefore, in this final rule, DOE updates the energy efficiency standards for new Federal buildings to the 2015 IECC for buildings for which design for construction began on or after one year after the rule is published in the Federal Register. (42 U.S.C. 6834(a)(3)(A)). Federal buildings are defined as follows: “any building to be constructed by, or for the use of, any Federal agency. Such term shall include buildings built for the purpose of being leased by a Federal agency, and privatized military housing.” (42 U.S.C. 6832(6)). This term does not include renovations or modifications to existing buildings.

ECPA, as amended, requires DOE to establish building energy efficiency standards for all new Federal buildings. (42 U.S.C. 6834(a)(1)) The standards established under section 305(a)(1) of ECPA must contain energy efficiency measures that are technologically feasible, economically justified, and meet the energy efficiency levels in the applicable voluntary consensus energy codes specified in section 305. (42 U.S.C. 6834(a)(1)-(3))

Under section 305 of ECPA, the referenced voluntary consensus code for low-rise residential buildings is the International Code Council (ICC) International Energy Conservation Code (IECC). (42 U.S.C. 6834(a)(2)(A)). DOE codified this referenced code as the baseline Federal building standard in its existing energy efficiency standards found in 10 CFR part 435. Also pursuant to section 305 of ECPA, DOE must establish, by rule, revised Federal building energy efficiency performance standards for new Federal buildings that require such buildings to be designed to achieve energy consumption levels that are at least 30 percent below the levels established in the referenced code (baseline Federal building standard), if life-cycle cost-effective. (42 U.S.C. 6834(a)(3)(A)(i)(I))

Under section 305 of ECPA, not later than one year after the date of approval of each subsequent revision of the ASHRAE Standard or the IECC, DOE must determine whether to amend the baseline Federal building standards with the revised voluntary standard based on the cost-effectiveness of the revised voluntary standard. (42 U.S.C. 6834(a)(3)(B)) It is this requirement that this rulemaking addresses. ICC has updated the IECC from the version currently referenced in DOE's regulations at 10 CFR part 435. In this rule, DOE revises the latest baseline Federal building standard for 10 CFR part 435 from the 2009 IECC to the 2015 IECC. DOE notes that although ICC published an update to the IECC in 2012, this rule updates 10 CFR part 435 to the 2015 IECC directly, without requiring agencies to comply with the 2012 IECC. DOE notes however that because development of the IECC is incremental from version to version, the 2015 IECC does include all content in the 2012 IECC that was not specifically removed or modified during the development of the 2015 IECC. DOE evaluated the 2012 IECC as well and found it to be technologically feasible and economically justified.2

Section 306(a) of ECPA provides that each Federal agency and the Architect of the Capitol must adopt procedures to ensure that new Federal buildings will meet or exceed the Federal building energy efficiency standards established under section 305. (42 U.S.C. 6835(a)) ECPA Section 306(b) bars the head of a Federal agency from expending Federal funds for the construction of a new Federal building unless the building meets or exceeds the applicable baseline Federal building energy standards established under section 305. (42 U.S.C. 6835(b)) Specifically, all new Federal buildings 3 must be designed to achieve the baseline standards in the International Energy Conservation Code for low-rise residential buildings (and ASHRAE Standard 90.1 for commercial and multi-family high-rise residential buildings) and achieve energy consumption levels at least 30 percent below these minimum baseline standards, where life-cycle cost-effective. (42 U.S.C. 6834(a)(3)(A)). This requirement does not extend to renovations or modifications to existing buildings.

DOE is issuing this action as a final rule. As indicated in this preamble, DOE must determine whether the energy efficiency standards for new Federal buildings should be updated to reflect revisions to the 2015 IECC based on the cost-effectiveness of the revisions. (42 U.S.C. 6834(a)(3)(B)) In this final rule, DOE determines that the energy efficiency standards for new Federal buildings should be updated to reflect the 2015 revisions to the IECC based on the cost-effectiveness of the revisions.

DOE reviewed the IECC for DOE's state building codes program and determined that the 2015 version of the IECC would achieve greater energy efficiency than the prior version (the 2012 version). (See 80 FR 33250 (June 11, 2015)) DOE also reviewed the 2012 version of the IECC and determined that the 2012 version would achieve greater energy efficiency than the prior version (the 2009 version currently referenced in 10 CFR part 435). (See 77 FR 29322 (May 17, 2012)) Both these determinations were subject to notice and comment. See 79 FR 57915 (September 26, 2014) and 76 FR 42688 (July 19, 2011) respectively for the 2015 IECC and 2012 preliminary determinations. DOE found that the 2015 version of the IECC would save 0.87% more source energy than the 2012 version of the IECC 4 and that the 2012 version of the IECC would save 24% more source energy than the 2009 version of the IECC.5

In DOE's determination for the state building codes program, and again in this rule, DOE states that the cost-effectiveness of revisions to the voluntary codes is considered through DOE's statutorily directed involvement in the codes process. See 80 FR 33250. Section 307 of ECPA requires DOE to participate in the ICC code development process and to assist in determining the cost-effectiveness of the voluntary standards. (42 U.S.C. 6836) DOE is required to periodically review the economic basis of the voluntary building energy codes and participate in the industry process for review and modification, including seeking adoption of all technologically feasible and economically justified energy efficiency measures. (42 U.S.C. 6836(b))

In addition to DOE's consideration of the cost-effectiveness of the 2015 IECC through its participation in the codes development process, DOE conducted an independent analysis of the cost-effectiveness of the 2015 IECC compared to the 2012 IECC and 2009 IECC. The results of the analysis are discussed in section A. Review Under Executive Order 12866, “Regulatory Planning and Review”.6 DOE's assumptions and methodology for the cost-effectiveness of this rule are based on DOE's cost-effectiveness analysis of the 2015 IECC, as well as DOE's Environmental Assessment (EA) for this rulemaking.7

In this rule, DOE updates the energy efficiency standards applicable to new Federal buildings based on the determinations made by DOE as to the energy efficiency improvements of the 2015 IECC 8 and 2012 IECC,9 as compared to the predecessor version (the 2009 IECC), and based on the considerations of cost-effectiveness incorporated into the codes processes, DOE's involvement in those processes, and DOE's own cost-effectiveness analysis. This final rule amends 10 CFR part 435 to update the referenced baseline Federal energy efficiency performance standards. This final rule does not make any changes to the overall requirement that agencies must design buildings to meet the baseline standard and, if life-cycle cost-effective, achieve savings of at least 30% below the baseline standard. The statutory requirement to achieve savings of at least 30% below the levels established for the 2012 and 2015 IECC updates, applies to Federal agencies in the determinations they make for individual buildings, but not to DOE's overall determination for the purpose of this rule.

Three changes made to 10 CFR part 435 in this rule warrant further discussion. These changes are: (1) Updated the definition of “Federal buildings” to meet the requirements of 42 U.S.C. 6832(6); (2) explicit reference to the new mechanical ventilation requirements found in the 2015 IECC to § 435.4; and (3) expanded list of energy end-uses that must be considered in the 30 percent savings calculation. Each of these changes is discussed in this preamble. DOE is also providing a synopsis of the major changes made to the IECC between the 2009 IECC and the 2015 IECC to provide more detail regarding what the change in baseline standard means.

The definition of “New Federal building” in 10 CFR part 435 has not previously been updated to match what is found in 42 U.S.C. 6832(6). The Energy Independence and Security Act of 2007 (EISA 2007) updated the definition of “Federal building” to include privatized military family housing and leased buildings. This rule makes that update by revising the definition of “New Federal building” to mean “any new building (including a complete replacement of an existing building from the foundation up) to be constructed by, or for the use of, any federal agency.10 Such term shall include buildings built for the purpose of being leased by a federal agency, and privatized military housing.” DOE believes that the main impact of this definition change for this rule will be that privatized military housing will now be required to follow the requirements of 10 CFR part 435 for energy efficiency instead of using prevailing energy efficiency standards. For example, privatized military family housing constructed in the state of Georgia must meet the requirements of 10 CFR part 435, which may or may not be the same as the Georgia energy code. This change is made solely to bring 10 CFR part 435 into agreement with 42 U.S.C. 6832(6).

The 2015 IECC includes explicit mechanical ventilation requirements for new homes. Previous editions of the IECC (prior to the 2012 IECC, but including the 2009 IECC) referred to in 10 CFR part 435 did not explicitly require mechanical ventilation. DOE believes that ensuring adequate ventilation is critical to ensuring good indoor air quality and has therefore explicitly added a mention of this requirement in 10 CFR part 435. DOE believes the main impact of this change will be to require agencies to use the newest residential ventilation standards. The 2015 IECC explicitly mentions the 2015 International Mechanical Code (IMC) 11 and the 2015 International Residential Code (IRC) 12 as optional sources of ventilation requirements. The 2015 IECC also allows “other approved means” of mechanical ventilation.

Specifically, Section R403.5 of the 2015 IECC requires that “the building shall be provided with ventilation that meets the requirements of the International Residential Code or International Mechanical Code, as applicable, or with other approved means of ventilation. Outdoor air intakes and exhausts shall have automatic or gravity dampers that close when the ventilation system is not operating”. Section R403.5.1 of the 2015 IECC also requires that “Mechanical ventilation system fans shall meet the requirements of Table R403.5.1.” Table R403.5.1 sets minimum efficacy for range hoods, in-line fans, and bathroom and utility room fans. DOE's 2012 IECC determination (previously footnoted) states that the 2009 IECC does not require any mechanical ventilation. Section R403.5 of the 2012 IECC refers to the 2012 International Residential Code and International Mechanical Code which, in tandem with the 2012 IECC, require that a mechanical ventilation system meet these requirements or other approved means of ventilation in new homes.

DOE believes that the primary technical authority on residential ventilation is the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 62.2 committee. Their latest standard—ASHRAE Standard 62.2-2013,13 is the source of many of the requirements in the 2015 IMC and 2015 IRC and could therefore be used as an “other approved means” by agencies. If agencies wish to develop their own mechanical ventilation standards, they may choose to request an interpretation from the ASHRAE Standard 62.2 committee as to whether or not the agency's own standard is an acceptable substitute. Agencies may submit a request for interpretation to the committee using the procedures outlined at https://www.ashrae.org/standards-research--technology/standards-forms--procedures/how-to-request-an-interpretation. Neither the 2015 IMC, nor 2015 IRC, nor ASHRAE Standard 62.2-2013 are incorporated by reference in this rule as they are options that an agency may choose to use.

Under the current 10 CFR 435.4, Federal agencies that are designing new Federal buildings that are low-rise residential buildings must only consider space heating, space cooling and domestic water heating when making the 30% savings calculation required in 10 CFR part 435 because the 2004 IECC and 2009 IECC only included those requirements. In addition to those three elements, the 2015 IECC includes explicit mechanical ventilation requirements that, the energy used for mechanical ventilation should be included in the 30 percent savings calculation required in 10 CFR part 435 as well. Also, both the 2015 IECC and the 2009 IECC (the current baseline standard for 10 CFR part 435) contain requirements for high-efficacy lighting and, therefore, lighting should be included in the 30 percent savings calculation as well. DOE believes that the impact of this change on agencies should be minimal as ventilation and lighting end-uses should be part of the output of any residential whole building simulation tool that an agency might be using for its calculations.

This rule also updates the methodology used in the 30 Percent Savings Calculation by directing agencies to use the Simulated Performance Alternative in the 2015 IECC as opposed to the Simulated Performance Alternative in the 2009 IECC. Updates to the Simulation Performance Alternative in the 2015 IECC from the Simulated Performance Alternative in the 2009 IECC include three clarifications to the documentation, calculation procedure, and calculation software tools sections that point out that all subsections in these sections must be addressed, as well as a number of editorial changes to call out specific sections in the 2015 IECC. There were also a few more technical changes to the Simulated Performance Alternative, including a change to the calculation method for the internal shade fraction, a change to the treatment of air exchange rates, a change to the default heating system assumption in cases where electric heating without a heat pump is used, and a change in how thermal distribution system efficiency is treated. There are also new requirements for compliance documentation associated with the Simulated Performance Alternative in the 2015 IECC. These requirements, while part of the 2015 IECC, do not apply to Federal buildings as they are associated with applications for building permits and certificates of occupancy required from local code officials.

DOE also notes that there are a number of statutory provisions, regulations, Executive Orders, and memoranda of understanding that govern energy consumption in new Federal buildings. These include, but are not limited to, the Executive Order 13693 (80 FR 15871 (March 25, 2015)); sections 323, 431, 433, 434, and 523 of the Energy Independence and Security Act of 2007 (EISA 2007); section 109 of the Energy Policy Act of 2005 (Pub. L. 109-58); and 10 CFR parts 433 and 435. This rule supports and does not supplant these other applicable requirements and goals for new Federal buildings. For example, by designing buildings to meet the 2015 IECC baseline, Federal agencies also help achieve the energy intensity reductions mandated under section 431 of EISA 2007.

Of particular significance is the Administration's Climate Action Plan, (CAP), issued June 2013, in which the President affirmed that the Federal government must position itself as a leader in clean energy and energy efficiency, and pledged that Federal agencies must surpass previous greenhouse gas reduction achievements, through a combination of consuming 20 percent of Federal electricity from renewable sources by 2020, and by pursuing greater energy efficiency in Federal buildings.14 Additionally, the President directed that efficiency standards for appliances and Federal buildings set in the first and second terms combined would reduce carbon pollution by at least 3 billion metric tons cumulatively by 2030—equivalent to nearly one-half of the carbon pollution from the entire U.S. energy sector for one year. This rule, which DOE estimates will avoid cumulative emissions of 690,200 metric tons of carbon dioxide through 2030, directly supports the Administration's undertaking to make energy efficiency in Federal buildings an essential stratagem in the government's enduring achievement of the greenhouse gas reduction goals set out in the CAP.

The IECC is updated every three years by the International Code Council (ICC). Between the 2009 IECC and the 2015 IECC, the ICC also issued the 2012 IECC. DOE, as part of its determination process, evaluates each new version of the IECC for low-rise residential buildings. The following summaries are taken directly from DOE's determinations and supporting analyses for the 2012 IECC 15 and 2015 IECC.16

In creating the 2012 IECC, ICC processed 27 sets of approved code change proposals. Overall, DOE found that the majority of changes in the 2012 IECC appear to be positive (i.e., have a positive impact on energy savings) within the context of the determination analysis. Of the 27 sets of changes:

In the 2012 IECC, DOE noted the following 14 sets of improvements:

1. Increases in prescriptive insulation levels of walls, roofs and floors,

2. Decrease (improvement) in U-factor allowances for fenestration,

3. Decrease (improvement) in allowable Solar Heat Gain Coefficient (SHGC) for fenestration in warm climates,

4. Infiltration control: Mandated whole house pressure test with strict allowances for air leakage rates,

5. Wall insulation when structural sheathing is used,

6. Ventilation fan efficiency,

7. Lighting—Increased fraction of lamps required to be high-efficacy,

8. Air distribution systems—leakage control requirements,

9. Hot water pipe insulation and length requirements,

10. Skylight definition change,

11. Penalizing electric resistance heating in the performance compliance path,

12. Fireplace air leakage control,

13. Insulating covers for in-ground spas, and

14. Baffles for attic insulation.

DOE also noted the following two changes that decrease the efficiency of the 2012 IECC:

1. Steel-framed wall insulation, and

2. Air barrier location.

DOE also noted another two changes the effect of which was unclear:

1. Fenestration SHGC requirement in climate zone 4, and

2. Interior shading assumptions in the performance compliance path.

DOE also noted nine additional changes that had no apparent impact on the energy performance of the 2012 IECC:

1. Clarification of the scope of the residential building section of the IECC,

2. Definition of a whole house ventilation system,

3. A requirement for the results of the air leakage test to be put on the certificate,

4. Inclusion of Visual Transmittance (VT) in the code,

5. Clarification of recessed lighting leakage rates,

6. Introduction of ASHRAE Test Procedure 193 for HVAC equipment leakage test rates,

7. Introduction of a new test standard for home ventilation systems,

8. Clarification for the requirement for thermal distribution system design in the Simulated Performance Alternative, and

9. Moving of a requirement for sizing of equipment from an IRC reference into the IECC.

All of these changes are discussed in more detail in DOE's 2012 Determination.

In creating the 2015 IECC, ICC processed 76 approved code change proposals. Overall, DOE found that the vast majority of changes in the 2015 IECC appear to be neutral (i.e., have no direct impact on energy savings) within the context of the determination analysis. DOE also found that beneficial changes (i.e., increased energy savings) outweigh any changes with a detrimental effect on energy efficiency in residential buildings. Of the 76 total changes:

The 6 changes considered beneficial are:

The two changes were considered detrimental were:

This final rule applies to new Federal low-rise residential buildings for which design for construction begins on or after one year from the publication date of this rulemaking in the Federal Register. (42 U.S.C. 6834(a)(1)) Such buildings must be designed to exceed the energy efficiency level of the appropriate updated voluntary standard by 30 percent if life-cycle cost-effective. However, at a minimum, such buildings must achieve the energy efficiency equal to that of the appropriate updated voluntary standard. One year lead time before the design for construction begins is consistent with DOE's previous updates to the energy efficiency baselines and the original statutory mandate for Federal building standards. One year lead time before design for construction begins helps minimize compliance costs to agencies, which may have planned buildings in various stages of design, and allows for design changes to more fully consider life-cycle cost-effective measures (as opposed to having to revise designs in development, which may make incorporation of energy efficiency measure more difficult or expensive).

The Department originally prepared this list of resources to help Federal agencies achieve building energy efficiency levels of at least 30 percent below the 2009 IECC. The Department has reviewed these resources and believes that they continue to be useful for helping agencies maximize their energy efficiency levels. The Department has updated this resource list as appropriate. These resources come in many forms and in a variety of media. Resources are provided for all buildings, and also specifically for low-rise residential buildings.

Federal agencies are required to specify Federal Energy Management Program (FEMP) designated or ENERGY STAR equipment, including building mechanical and lighting equipment and builder-supplied appliances, for purchase and installation in all new construction. 42 U.S.C. 8259b(b) Although this rule does not specifically address the use of this equipment, ENERGY STAR and FEMP-Designated products are generally more energy efficient than the corresponding requirements of the 2015 IECC, and may be used to achieve part of the savings required of Federal building designs. Therefore, DOE lists this Web site as a potential resource.

The life-cycle cost analysis rules promulgated in 10 CFR part 436 Subpart A Life-Cycle Cost Methodology and Procedures conform to requirements in the Federal Energy Management Improvement Act of 1988 (Pub. L. 100-615) and subsequent energy conservation legislation, as well as Executive Order 13693, Planning for Federal Sustainability in the Next Decade. The life-cycle cost guidance and required discount rates and energy price projections are determined annually by FEMP and the Energy Information Administration, and are published in the Annual Supplement to The National Institute of Standards and Technology Handbook 135: “Energy Price Indices and Discount Factors for Life-Cycle Cost Analysis”.

ENERGY STAR is a government-backed program helping businesses and individuals protect the environment through superior energy efficiency. The EPA program requirements for ENERGY STAR-labeled homes, effective as of the date of this rule, provide a useful guide for meeting the Federal energy efficiency standard for low-rise residential buildings.

This Web site provides information on designing and building very low energy homes.

This Web site provides information on energy efficient home design strategies, and technologies to support energy efficiency in residences.

This standard provides requirements for building high-efficiency and green homes and multi-family buildings.

This certification system provides requirements for building high-efficiency and green homes and multi-family buildings.

This certification provides requirements for building high-efficiency and green multi-family buildings.

The baseline energy efficiency standard for low-rise residential buildings is the 2015 IECC.

A portal providing one-stop access to up-to-date information on a wide range of building-related guidance, criteria and technology from a “whole buildings” perspective.

This final rule is a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review by the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB). OMB has completed its review. As discussed previously in this rule, DOE is required to determine, based on the cost-effectiveness, whether the standards for Federal buildings should be updated to reflect an amendment to the IECC standard. As stated in this preamble, DOE complied with the statutory language by analyzing the cost-effectiveness of the 2015 IECC, and through DOE's involvement in the ICC code development process, including consideration of the cost-effectiveness of the 2015 IECC.

DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. 76 FR 3281 (January 21, 2011). E.O. 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866.

Review under Executive Order 12866 requires an analysis of the economic effect of the rule. For this purpose, DOE estimated incremental first cost (in this case, the difference between the cost of a building designed to meet the 2015 IECC and a building designed to meet the 2009 IECC) for the Federal low-rise residential buildings sector, as well as life-cycle cost net savings. DOE determined that the total incremental first cost estimate is an increase of $4.1 million per year, with an average first cost increase of $2,051 per household. DOE estimated $14.8 million in annual life-cycle cost (LCC) net savings for the entire Federal low-rise residential buildings sector with an average life-cycle cost net savings of $7,421 per household.

DOE's assumptions and methodology for the cost-effectiveness of this rule are based on DOE's cost-effectiveness analysis of the 2015 IECC,17 as well as DOE's Environmental Assessment (EA) for this rulemaking.18 The EA identified a rate of new Federal residential construction of 4,936 homes per year. As described in the EA, this estimate is derived from consideration of data from a number of sources. DOE's cost-effectiveness analysis of the 2015 IECC provides tables for the first cost increase, the energy savings, and the life cycle costs associated with the 2015 IECC versus the 2012 IECC and 2009 IECC by climate zone. DOE's cost-effectiveness report does not provide national average values, but does provide sufficient weighting data so that these national averages can be calculated. The weighting data provided in the cost-effectiveness report is used to generate the rows labeled “National Average” in Tables 1, 2, and 3 in this preamble.

Table 1 lists the increased first costs associated with the 2015 IECC for a standard 2,400 ft2 prototypical home and a standard 1,200 ft2 prototypical apartment/condo building. DOE believes that the majority of Federal low-rise residential construction will be single family homes built by the Department of Defense (or their privatization contractors), but there is a possibility that some Federal low-rise multi-family buildings could be built,19 so the results of DOE's first cost analysis are shown in full. The 2015 IECC does increase the first cost of construction of new homes and apartments/condos compared to the 2009 IECC in all climate zones in the United States.

The first cost data shown in Table 1 can be further aggregated by foundation type using the foundation type weightings found in the 2015 IECC Cost-Effectiveness report (and also shown in Table 1 in the row labeled “Foundation Weights”). The results of that weighting indicate that the typical first cost of a home would be $2,051 and that of an apartment/condo would be $1,027. These first cost increases should be compared to the estimated first cost of new Federal low-rise residential construction, but that information is not typically publicly available. Instead, DOE has chosen to compare these costs to typical costs in the private sector.

The National Association of Realtors (NAR) in a press release dated September 21, 2015 states that the median U.S. single family home price was $230,200 in August 2015.20 The $2,051 cost increase represents approximately 0.9% of the average cost of a new home. As previously stated, DOE does not believe that a large fraction of Federal low-rise construction falls under this rule, but for comparison, the same NAR press release lists the price for condominiums at $217,400. The $1,027 cost increase for condominiums represents a 0.5% increase. Any increase in first cost would be accompanied by a reduction in energy costs and an increase in life cycle cost savings.

The estimated energy cost savings associated with the 2015 IECC is shown in Table 2. This table is based on a combination of single-family homes and apartments/condos as described in DOE's cost-effectiveness report. While the weighting of homes and apartments/condos may not be identical in the private and Federal sectors, the trends are similar for both single-family homes and apartments/condos. The 2015 IECC saves a considerable amount of energy costs over the 2009 IECC in all climate zones in the United States.

The life-cycle cost impact of the 2015 IECC is shown in Table 3. Again, these values represent the combination of single-family homes and apartments/condos, but the trends are clear. The 2015 IECC has large life cycle cost-savings in all climate zones in the U.S.

Multiplying the estimated 4936 new Federal homes per year by the national average values in Tables 1, 2, and 3 provides a summary of annual cost increases, energy savings, and first cost-increases for the entire Federal low-rise sector shown in Table 4.

DOE notes that the determination regarding the 2015 IECC in the context of State building codes was subject to notice and comment in evaluating the voluntary consensus codes. See 79 FR 57915 (September 26, 2014) for the preliminary determination and 80 FR 33250 (June 11, 2015) for the final determination. DOE also notes that the determination regarding the 2012 IECC in the context of State building codes was subject to notice and comment in evaluating the voluntary consensus codes. See 76 FR 42688 (July 19, 2011) for the preliminary determination and 77 FR 29322 (May 17, 2012) for the final determination. The determinations made in the context of the State codes are equally applicable in the context of Federal buildings. DOE finds that providing notice and comment on the determinations again in the context of Federal buildings would be unnecessary. The fact that the voluntary consensus codes apply to Federal buildings as opposed to the general building stock does not require a different evaluation of energy efficiency and cost-effectiveness. Additionally, DOE notes that this rule, which updates energy efficiency performance standards for the design and construction of new Federal buildings, is a rule relating to public property, and therefore is not subject to the rulemaking requirements of the Administrative Procedure Act, including the requirement to publish a notice of proposed rulemaking. (See 5 U.S.C. 553(a)(2))

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process, 68 FR 7990. The Department has made its procedures and policies available on the Office of General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

DOE has determined that a notice of proposed rulemaking is not required by 5 U.S.C. 553 or any other law for issuance of this rule. As such, the analytical requirements of the Regulatory Flexibility Act do not apply.

This rulemaking will impose no new information or record keeping requirements. Accordingly, Office of Management and Budget (OMB) clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq).

The Department prepared an Environmental Assessment (EA) (DOE/EA-2020) entitled, “Environmental Assessment for Final Rule, 10 CFR part 435, `Energy Efficiency Standards for New Federal Low-Rise Residential Buildings,' Baseline Standards Update,” 21 pursuant to the Council on Environmental Quality's (CEQ) Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR parts 1500-1508), the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), and DOE's NEPA Implementing Procedures (10 CFR part 1021).

The EA addresses the possible incremental environmental effects attributable to the application of the final rule. The only anticipated impact would be a decrease in outdoor air pollutants resulting from decreased fossil fuel burning for energy use in Federal buildings. Therefore, DOE has issued a Finding of No Significant Impact (FONSI), pursuant to NEPA, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance with NEPA (10 CFR part 1021).

To identify the potential environmental impacts that may result from implementing the final rule on new Federal low-rise residential buildings, DOE compared the requirements of the final rule updating energy efficiency performance standard for Federal new low-rise residential buildings to 2015 IECC with the “no-action alternative” of using the current Federal standards (the 2009 IECC). This comparison is identical to that undertaken by DOE in its determinations of energy savings of those standards and codes.

Accordingly, DOE concludes in the EA that new Federal buildings designed and constructed to the 2015 IECC will use less energy than new Federal buildings designed and constructed to the 2009 IECC because the 2015 IECC is more efficient than 2009 IECC. This decrease in energy usage translates to reduced emissions of carbon dioxide (CO2), nitrogen oxides (NOX), and mercury (Hg) over the thirty-year period examined in the EA. Cumulative emission reductions for 30 years of construction (2018 through 2047) and 30 years of energy reduction for each building built during that period can be estimated at up to 4,114,800 metric tons of CO2, up to 3,147 metric tons of NOX, and up to 0.0338 metric tons of Hg. DOE conducted a separate calculation to determine emissions reductions relative to the targets identified in the CAP. This calculation showed that the cumulative reduction in CO2 emissions through 2030 amounts to 690,220 metric tons of CO2.22

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E surface area at Ankeny Regional Airport, Ankeny, IA; and Class E airspace extending upward from 700 feet above the surface at Algona Municipal Airport, Algona, IA; Ankeny Regional Airport; Atlantic Municipal Airport, Atlantic, IA; Belle Plaine Municipal Airport, Belle Plaine, IA; Creston Municipal Airport, Creston, IA; Estherville Municipal Airport, Estherville, IA; Grinnell Regional Airport, Grinnell, IA; Guthrie County Regional Airport, Guthrie Center, IA; and Oelwein Municipal Airport, Oelwein, IA.

On September 23, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM), (81 FR 65583) Docket No. FAA-2016-8833, to amend Class E surface area at Ankeny Regional Airport, Ankeny, IA; and Class E airspace extending upward from 700 feet above the surface at Algona Municipal Airport, Algona, IA; Ankeny Regional Airport; Atlantic Municipal Airport, Atlantic, IA; Belle Plaine Municipal Airport, Belle Plaine, IA; Creston Municipal Airport, Creston, IA; Estherville Municipal Airport, Estherville, IA; Grinnell Regional Airport, Grinnell, IA; Guthrie County Regional Airport, Guthrie Center, IA; and Oelwein Municipal Airport, Oelwein, IA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

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

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies:

Class E surface area airspace within a 4.2-mile radius (increased from the 4-mile radius) of Ankeny Regional Airport, Ankeny, IA;

Class E airspace extending upward from 700 feet above the surface:

By removing the 10-mile extension northwest of Algona Municipal Airport, Algona, IA, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;

Within a 6.7-mile radius (reduced from the previous 7.1-mile radius) of Ankeny Regional Airport, Ankeny, IA, and removing the extensions 9.3 miles northeast and 11.1 miles north of the airport;

Within a 7.2-mile radius (increased from the 6.8-mile radius) of Atlantic Municipal Airport, Atlantic, IA, with an extension to the northeast from the 7.2-mile radius to 9.2 miles, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;

Within a 6.5-mile radius (reduced from the previous 7.5-mile radius) of Belle Plaine Municipal Airport, Belle Plaine, IA, and correcting city designation from Belle Plane to Belle Plaine;

By removing the 11-mile extension south of Creston Municipal Airport, Creston, IA;

By removing the 7.4-mile extensions south and northwest of Estherville Municipal Airport, Estherville, IA;

Within a 6.5-mile radius (reduced from the previous 7.6-mile radius) of Grinnell Regional Airport, Grinnell, IA, and updating the geographical coordinates of the airport to coincide with the FAA's aeronautical database;

By adding an extension to the north from the 6.4-mile radius to 9.8 miles of Guthrie County Regional Airport, Guthrie Center, IA;

And within a 6.4-mile radius (reduced from the previous 7.3-mile radius) of Oelwein Municipal Airport, Oelwein, IA.

Airspace reconfiguration is necessary due to the decommissioning of the Mapleton NDB, cancellation of NDB approaches, and implementation of RNAV procedures at the airport and for the safety and management of the standard instrument approach procedures for IFR operations at these airports.

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the air traffic service route structure in Alaska to maintain the efficient flow of air traffic.

On March 7, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (81 FR 11694), Docket No. FAA-2016-3193, to amend VOR Federal airway V-506 by lowering the floor of Class E controlled airspace due to the establishment of a lower GNSS MEA on a segment of the route. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. One comment was received.

The comment received generally asked whether there would be any safety issues by lowering the floor of Class E airspace?

The FAA finds the proposed modification is in accordance with the criteria and guidelines in FAA Order 7400.2, and it does not introduce new or increased safety risk into the National Airspace System, including Visual Flight Rules (VFR) operations and Instrument Flight Rules (IFR) operations.

For VFR operations, the modified Class G (uncontrolled) airspace stratum would extend upward from the surface to 7,499 feet mean sea level (MSL). The maximum terrain and obstruction elevation in this area is 5,300 feet MSL. The depth of the Glass G airspace stratum will therefore remain at least 2,199 feet, which exceeds the minimum airspace necessary for VFR cruise flight over non-congested areas in accordance with 14 CFR 91.119. It should also be noted, VFR flight is permitted within Class E airspace, with the only additional or different requirement (from Class G airspace) being increased cloud clearance and visibility minima.

Additionally, no safety issues or increased risk would be introduced for IFR operations. The airspace modification would lower the floor of Class E (controlled) airspace along the specific portion of V-506 from 9,500 feet MSL to 7,500 feet MSL. This action would lower the minimum altitude for air traffic control services and accommodate the minimum GNSS (MEA) for the airway of 8,000 feet MSL, while maintaining a 500 foot airspace buffer between IFR aircraft and uncontrolled airspace. The airway would provide a buffer of greater than 2,000 feet between IFR aircraft and the maximum terrain and obstacle elevation. Lastly it would provide IFR aircraft experiencing icing conditions the ability to fly 2,000 feet lower than previously allowed, and remain within controlled airspace.

Alaskan VOR Federal Airways are published in paragraph 6010(b) of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Alaskan VOR Federal airways listed in this document will be published subsequently in the Order.

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

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to modify VOR Federal airwayV-506 in the vicinity of Kotzebue, AK, due to the establishment of a lower GNSS Minimum Enroute Altitude. The route modifications are outlined below.

V-506: V-506 extends from the intersection of Kodiak, AK, VOR/DME 107° radial and the Anchorage Oceanic CTA/FIR boundary to the Barrow, AK, VOR/DME. A portion of the route segment between the Hotham, AK, NDB and the Barrow, AK, VOR/DME is amended to a lower MEA from 95 MSL to 75 MSL.

All radials in the regulatory text route descriptions below are stated in True degrees.

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

The FAA has determined that this action of amending Alaskan VHF Omnidirectional Range (VOR) Federal airway V-506 by lowering the floor of class E controlled airspace due to the establishment of a lower global navigation satellite system (GNSS) Minimum Enroute Altitude (MEA) qualifies for categorical exclusion under the National Environmental Policy Act, its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F. Environmental Impacts: Policies and Procedures, Paragraph 5-6.5a which categorically excludes from further environmental review Rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). This action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

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

On March 28, 2016, the FAA published in the Federal Register (81 FR 17116) Docket No. FAA-2015-7488, a notice of proposed rulemaking (NPRM) to modify Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and remove Class E airspace designated as an extension at Roswell International Air Center, Roswell, NM. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Subsequent to publication, the FAA found that the geographic coordinates for the Chisum VORTAC needed to be adjusted to coincide with the FAA's aeronautical database. That adjustment has been incorporated in this action.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

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

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at Roswell International Air Center, Roswell, NM. Cancellation of the standard instrument approach procedures (SIAPs), advances in GPS capabilities, and implementation of RNAV procedures at Roswell International Air Center (formerly Roswell Industrial Air Center), is necessary for the safety and management of IFR operations at the airport.

The class E airspace area extending upward from 700 feet above the surface at the airport is reduced from a 12.7-mile radius to a 7.4-mile radius, with the extension to the northwest being reduced from 4 miles to 1.7 miles each side of the Chisum VORTAC 278° radial extending from the 7.4-mile radius to 11 miles vice 23 miles; and the extension to the northeast being removed. Additionally, the Class E airspace designated as an extension at the airport is removed as it is no longer needed. All modifications to the Class E airspace are in accordance with airspace requirements specified in FAA Joint Order 7400.2K. The airport name and geographic coordinates are amended in the existing Class D and Class E airspace areas to be in concert with the FAA's aeronautical database. The geographic coordinates for the Chisum VORTAC noted in Class E airspace extending upward from 700 feet above the surface are also adjusted.

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Kings Land O' Lakes Airport, Land O' Lakes, WI; Manitowish Waters Airport, Manitowish Waters, WI; Merrill Municipal Airport, Merrill, WI; Oconto-J. Douglas Bake Municipal Airport, Oconto, WI; Price County Airport, Phillips, WI; Platteville Municipal Airport, Platteville, WI; Solon Springs Municipal Airport, Solon Springs, WI; Richard I. Bong Airport, Superior, WI; and West Bend Municipal Airport, West Bend, WI.

On September 8, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM), (81 FR 62044) Docket No. FAA-2016-8830, to modify Class E airspace extending upward from 700 feet above the surface at Kings Land O' Lakes Airport, Land O' Lakes, WI; Manitowish Waters Airport, Manitowish Waters, WI; Merrill Municipal Airport, Merrill, WI; Oconto-J. Douglas Bake Municipal Airport, Oconto, WI; Price County Airport, Phillips, WI; Platteville Municipal Airport, Platteville, WI; Solon Springs Municipal Airport, Solon Springs, WI; Richard I. Bong Airport, Superior, WI; and West Bend Municipal Airport, West Bend, WI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

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

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at the following airports:

Within a 6.4-mile radius (reduced from the 7-mile radius) of Kings Land O' Lakes Airport, Land O' Lakes, WI, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;

Within a 6.3-mile radius (reduced from the 7-mile radius) of Manitowish Waters Airport, Manitowish, WI, and removing the 9-mile segment southeast of the airport, and updating the geographic coordinates of the airport to coincide with the FAA's database;

Within a 6.6-mile radius (reduced from the 7-mile radius) of Merrill Municipal Airport, Merrill, WI;

By removing the 7-mile segment extending from the 6.3-mile radius southeast of Oconto-J. Douglas Bake Municipal Airport, Oconto, WI, and updating the name and geographic coordinates of the airport to coincide with the FAA's aeronautical database;

By removing the 7-mile segments extending from the 6.6-mile radius southwest and northeast of Price County Airport, Phillips, WI;

Within a 6.4-mile radius (reduced from the 7.4-mile radius) of Platteville Municipal Airport, Platteville, WI, with an extension southeast of the airport from the 6.4-mile radius to 10.2 miles;

Within a 6.3-mile radius (reduced from the 6.6-mile radius) of Solon Springs Municipal Airport, Solon Springs, WI, and removing the 7.4-mile segment north of the airport, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;

Within an 8.5-mile radius (increased from a 6.7-mile radius) of Richard I. Bong Airport, Superior, WI, and removing the 12.2-mile segment southeast of the airport;

And within a 6.8-mile radius (reduced from the 7.4-mile radius) of the West Bend Municipal Airport, West Bend, WI, reducing existing segment extending from the 6.8-mile radius to 11.4 miles southwest, and adding segments extending from the 6.8-mile radius to 7 miles northeast and 10 miles northwest of the airport.

Airspace reconfiguration is necessary due to the decommissioning of NDBs, cancellation of NDB approaches, or implementation of RNAV standard instrument procedures at these airports. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at these airports.

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

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

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

Background

This final rule addresses issues raised in, and public comments on, the interim final rule, Revisions to the Export Administration Regulations (EAR): Control of Spacecraft Systems and Related Items the President Determines No Longer Warrant Control Under the United States Munitions List (USML), that was published on May 13, 2014 (79 FR 27417) (May 13 rule), and makes corrections and clarifications. The May 13 rule added controls to the Export Administration Regulations (EAR) for spacecraft and related items that the President has determined no longer warrant control under United States Munitions List (USML) Category XV—spacecraft and related items. The vast majority of the changes included in the May 13 rule have been implemented as published in the interim final rule and are not republished in this final rule. A full description of those changes can be found in the Background section and the regulatory text of the May 13 rule. BIS also published corrections and clarifications to the May 13 rule in a final rule published on November 12, 2014 (79 FR 67055) and in a final rule published on July 13, 2015 (80 FR 39950).

This final rule is being published in conjunction with the publication of a Department of State, Directorate of Defense Trade Controls (DDTC) final rule, which makes changes, including corrections and clarifications, to the provisions adopted in the May 13 State rule (79 FR 27180). The State May 13 rule revised USML Category XV (22 CFR 121.1) to control those articles the President has determined warrant control on the USML. Both May 13 rules and the subsequent related rules are part of the President's Export Control Reform Initiative.

The changes included in this Commerce final rule complete the regulatory action begun by the May 13 rule and are also informed by comments received in response to that rule. The changes made in this Commerce final rule are grouped into four types of changes: (1) Changes to address the movement of additional spacecraft and related items from the USML to the CCL, as a result of changes in aperture size for spacecraft that warrant ITAR control, in response to public comments and further U.S. Government review; (2) changes to address the movement of the James Webb Space Telescope (JWST) from the USML to the CCL; (3) other corrections and clarifications to the spacecraft interim final rule; and (4) addition of .y items to Export Control Classification Number (ECCN) 9A515. Note that certain ECCNs may be referenced in more than one of the (1) through (4) sections, but for ease of reference the description of those changes to those ECCNs, such as ECCN 9E515, are grouped with the related changes under sections (1) through (4), as applicable.

This final rule makes several changes to the EAR to address the movement of additional spacecraft and related items from the USML to the CCL, as a result of the Department of State's responding to comments on its interim final rule, which specifically asked for additional public comments on this issue. The Department of State in its May 13 interim final rule noted:

For a discussion of the changes made to the ITAR in response to the related public comments, see the corresponding Department of State rule published today.

The changes described below are the EAR changes needed to address the movement of these additional spacecraft (under ECCNs 9A515.a.1 to .a.4 and 9A004.u) and related items (under 9A515.g) from the USML to the CCL. Adopting a more permissive aperture size (meaning more spacecraft items would no longer warrant ITAR control) was strongly advocated by commenters in response to the Commerce interim final rule. The public believed additional changes were needed to appropriately control spacecraft and related items that warranted ITAR control, with respect to aperture size, while moving those that did not warrant ITAR control to the CCL, consistent with the stated objectives in the May 13 final rules. State and the other agencies reviewing the comments agreed that some additional spacecraft and related items did not warrant ITAR control. This Commerce rule makes conforming changes to the EAR to ensure that appropriate controls are in place for such additional spacecraft and related items that did not warrant ITAR control, based on the review of the public comments and additional U.S. Government review. BIS anticipates an increase of approximately 10 to 20 license applications per year as a result of these changes to the EAR.

Because of the more sensitive nature of these additional spacecraft and related items that are being moved to the CCL, additional changes are needed to the EAR to effectively control these items. In certain cases, this means imposing more restrictive requirements compared to other 9x515 items. These additional requirements are described below, including a description of the parameters for the items moved to the CCL.

In § 740.20, paragraph (g) (License Exception STA eligibility requests for 9x515 and “600 series” end items), this final rule revises paragraph (g)(1) as a conforming change to the changes made to ECCN 9A515.a, described below. To maintain the same scope of paragraph (g)(1), this final rule removes the text that referred to ECCN 9A515.a and adds in its place text referencing “spacecraft” in 9A515.a.1, .a.2, .a.3, or .a.4, or items in 9A515.g. The spacecraft in ECCN 9A515.a.5 are eligible for License Exception STA without a § 740.20(g) request. As a conforming change, this final rule adds ECCN 9E515.b, .d, .e, or .f as eligible for § 740.20(g) License Exception STA eligibility requests. Because the scope of revised paragraph (g) includes items other than end items, this final rule also revises the heading of paragraph (g) to remove the term “end items” and add in its place the term “items.” However, the items eligible to be submitted under the § 740.20(g) process are still limited to those specific ECCNs and “items” paragraphs identified in paragraph (g).

The spacecraft transferred to the CCL in this final rule are subject to special regional stability license requirements. Therefore, in § 742.6 (Regional stability), this final rule makes revisions to five paragraphs. The final rule revises paragraph (a)(1), adds a new paragraph (a)(8), revises paragraph (b)(1)(i), and adds paragraphs (b)(5) and (b)(6). These changes are described below.

In § 742.6, paragraph (a)(1) (RS Column 1 license requirements in general), this final rule adds a reference to new paragraph (a)(8). New paragraph (a)(8) (Special RS Column 1 license requirement applicable to certain spacecraft and related items) is an RS Column 1 license requirement, which is specific to certain spacecraft and related items. This paragraph specifies that a license is required for all destinations, including Canada, for spacecraft and related items classified under ECCN 9A515.a.1, .a.2., .a.3., .a.4., .g, and ECCN 9E515.f. Although the license requirement for these specified ECCN 9x515 items is more restrictive than for those 9x515 items on the CCL prior to publication of this rule, the license review policy is the same as those for other 9x515 items. As a conforming change, this final rule revises the fourth sentence of paragraph (b)(1)(i) to add a reference to paragraph (a)(8), because that sentence references the ECCN 9x515 license requirements, which now include those special RS license requirements in paragraph (a)(8).

This final rule adds two new paragraphs, paragraph (b)(5) (Spacecraft for launch) and paragraph (b)(6) (Remote sensing spacecraft) to specify the requirements that apply for license applications involving spacecraft and remote sensing spacecraft. Consistent with the requirements in paragraph (y) in Supplement No. 2 to part 748 Unique Application and Submission Requirements, this final rule adds paragraphs (b)(5)(i) and (b)(5)(ii) to specify when applications to export or reexport a “spacecraft” controlled under ECCN 9A515.a for launch in or by a country will or may require a technology transfer control plan (TCP) approved by the Department of Defense (DoD), an encryption technology control plan approved by the National Security Agency (NSA), and DoD monitoring of all launch activities. Paragraph (b)(5)(i) specifies that this is a requirement for all such applications for countries that are not a member of the North Atlantic Treaty Organization (NATO) or a major non-NATO ally of the United States. This final rule adds a similar requirement under paragraph (b)(5)(ii), but with the key distinction that it may be required for countries that are a member of NATO or a major non-NATO ally of the United States.

Also in § 742.6, this final rule adds a new paragraph (b)(6) (Remote sensing spacecraft) to make applicants aware that any application for “spacecraft” described in ECCN 9A515.a.1,.a.2, a.3, or .a.4, for sensitive remote sensing components described in 9A515.g, or for “technology” described in ECCN 9E515.f, may require a government-to-government agreement at the discretion of the U.S. Government. A government-to-government agreement may be required for any destination at the sole discretion of the U.S. Government.

In § 750.4 (Procedures for processing license applications), as conforming changes to the changes described above to § 742.6, this final rule makes the following two changes: adds a new paragraph (b)(8), and adds a new paragraph (d)(2)(iv). These changes are described in the next two paragraphs.

In § 750.4, consistent with the requirements in paragraph (y) in Supplement No. 2 to part 748 Unique Application and Submission Requirements, this final rule adds a new paragraph (b)(8) (Satellites for launch) to include a requirement for license applications involving a satellite for launch. Applicants must obtain approval by the DoD of a technology transfer control plan and the approval of the NSA of an encryption technology control plan. In addition, the applicant will also be required to make arrangements with the DoD for monitoring of all launch activities. These existing DoD and NSA requirements in regards to satellites for launch are in addition to the EAR licensing requirements, but any license authorized under the EAR for satellites for launch must also be done in accordance with those DoD and NSA requirements to be authorized under an EAR license. Therefore, this final rule adds this requirement to § 750.4(b)(8), which will eliminate the need to add this requirement as a license condition for any license for satellites for launch. These DoD and NSA TCP approval requirements existed under the ITAR and are added to the EAR to preserve the status quo. Therefore, although this paragraph adds three new requirements to the EAR for license applications for spacecraft for launch, the requirements are the same as when these spacecraft were formerly under the ITAR, so there will be no increased burden on exporters, reexporters or transferors.

In § 750.4, this final rule adds a new paragraph (d)(2)(iv) (Remote Sensing Interagency Working Group (RSIWG)) to make applicants aware that the RSIWG, chaired by the State Department, will review license applications involving remote sensing spacecraft. These will be any items described in ECCN 9A515.a.1, .a.2, .a.3, or .a.4, sensitive remote sensing components described in 9A515.g, or “technology” described in 9E515.f.

ECCN 9A515. This final rule adds a new License Requirement Note, revises the Special Conditions for STA section, revises “items” paragraph (a), and adds paragraph (g) in the List of “items” controlled section of ECCN 9E515. These changes are described in the next five paragraphs.

Addition of License Requirement Note to 9A515. As a conforming change to the addition of § 742.6(a)(8), described above, this final rule adds a License Requirement Note to the end of the License Requirements section of ECCN 9A515 to specify that the Commerce Country Chart is not used for determining license requirements for commodities classified as 9A515.a.1, .a.2., .a.3., .a.4, and .g. The new License Requirement also includes a cross reference to § 742.6(a)(8) and alerts exporters and reexporters that these commodities are subject to a worldwide license requirement.

In ECCN 9A515, Special Conditions for STA section, this final rule revises paragraph (1). This final rule adds references to the new “items” paragraphs of ECCN 9A515.a (9A515.a.1, .a.2, .a.3 and .a.4) and 9A515.g, which would not be eligible for License Exception STA, unless determined by BIS to be eligible for License Exception STA in accordance with § 740.20(g) (License Exception STA eligibility requests for certain 9x515 and “600 series” end items). Because these items are commodities that are more sensitive, additional U.S. Government review of the specific commodity is warranted prior to allowing exporters, reexporters or transferors to use License Exception STA. The imposition of this requirement is consistent with the use of the paragraph (g) process for other sensitive items in the 9x515 ECCNs and the “600 series” that have been moved to the CCL. Also in the Special Conditions for STA section, this final rule redesignates paragraph (2) as paragraph (3) and adds a new paragraph (2). This final rule adds new paragraph (2) in the Special Conditions for STA section to exclude the use of License Exception if the “spacecraft” controlled in ECCN 9A515.a.1, .a.2, .a.3, or .a.4 contains a separable or removable propulsion system enumerated in USML Category IV(d)(2) or USML Category XV(e)(12) and designated MT. This exclusion is being added because the MTCR Category I components identified in this paragraph are separable or removable and therefore for consistency with the intent to exclude MT items from License Exception STA eligibility, this final rule adds this as an additional restriction on the use of License Exception STA.

In ECCN 9A515.a, this final rule revises “items” paragraph (a) to add control parameters for the additional spacecraft being moved from the USML to the CCL. Spacecraft moved from the USML to the CCL and classified under ECCN 9A515.a prior to publication of this rule are being moved to new “items” paragraph (a)(5). This final rule adds “items” paragraphs (a)(1), (a)(2), (a)(3) and (a)(4) to ECCN 9A515 to control the additional spacecraft items being moved to the CCL. The identification of these more sensitive spacecraft items in their own “items” level paragraph in ECCN 9A515 (9A515.a.1, .a.2, .a.3., .a.4) will allow for the imposition of more restrictive controls that are needed, while not impacting other spacecraft and related items that do not warrant the more restrictive controls (e.g., 9A515.a.5). These more restrictively controlled items consist of the following: “spacecraft,” including satellites, and space vehicles, whether designated developmental, experimental, research or scientific, not enumerated in USML Category XV or described in ECCN 9A004 that have electro-optical remote sensing capabilities and having a clear aperture greater than 0.35 meters, but less than or equal to 0.50 meters (under ECCN 9A515.a.1). It includes those having remote sensing capabilities beyond NIR (under ECCN 9A515.a.2), those having radar remote sensing capabilities (e.g., AESA, SAR, or ISAR) having a center frequency equal to or greater than 1.0 GHz, but less than 10.0 GHz and having a bandwidth equal to or greater than 100 MHz, but less than 300 MHz (under 9A515.a.3). These more sensitive items being moved from the USML to the CCL also include those providing space-based logistics, assembly, or servicing of another “spacecraft” (under ECCN 9A515.a.4).

In ECCN 9A515.g, this final rule also adds “items” paragraph (g) to 9A515, as related to the changes described above to 9A515.a. Paragraph (g) is added to control remote sensing components that are “specially designed” for “spacecraft” described in ECCN 9A515.a.1 though 9A515.a.4, which were described above. Similar to the reason for identifying the items in ECCN 9A515.a.1 through .a.4., specifying that these remote sensing components are the “items” paragraphs (g)(1) through (g)(3) will allow the imposition of more restrictive controls on these components, without needing to impose the same level of restrictions on 9A515.x items, which is the paragraph under which these components would have been controlled if this new 9A515.g paragraph were not being added. Paragraph (g) controls remote sensing components for space-qualified optics with the largest lateral clear aperture dimension equal to or less than 0.35 meters; or with the largest clear aperture dimension greater than 0.35 meters but less than or equal to 0.50 meters (under ECCN 9A515.g.1). In addition, paragraph (g) controls optical bench assemblies “specially designed” for the spacecraft added to ECCN 9A515.a.1 through .a.4 (under ECCN 9A515.g.2), and primary, secondary, or hosted payloads that perform a function of spacecraft added to 9A515.a.1. through .a.4. (under 9A515.g.3).

ECCN 9E515. This final rule adds a new License Requirement Note, revises the Special Conditions for STA section and “items” paragraph (a), and adds “items” paragraph (f) in the List of “items” controlled section of ECCN 9E515. These changes are described in the next five paragraphs:

Addition of License Requirement Note to 9E515. As a conforming change to the addition of § 742.6(a)(8), described above, this final rule adds a License Requirement Note to the end of the License Requirements section of ECCN 9E515 to specify that the Commerce Country Chart is not used for determining license requirements for “technology” classified 9E515.f. The new License Requirement also includes a cross reference to § 742.6(a)(8) and alerts exporters and reexporters that this “technology” is subject to a worldwide license requirement.

In ECCN 9E515, Special Conditions for STA section, this final rule revises paragraph (1) to add a reference to 9E515.f. This final rule specifies that such technology is not eligible for STA, unless the specific technology has been approved under the § 740.20(g) process by the U.S. Government. This change is made to conform to the addition described below of “technology” under ECCN 9E515.f for the additional spacecraft and related components added to 9A515.a and .g described above. In addition, this final rule also specifies that the “technology” controlled under ECCN 9E515.b, .d and .e are not eligible for License Exception STA, unless the specific “technology” has been approved under the § 740.20(g) process by the U.S. Government. Prior to publication of this final rule, ECCN 9E515.b, .d and .e “technology” was excluded from License Exception STA in all cases, which based on public comments and interagency discussions was a more restrictive policy than was needed to protect U.S. national security and foreign policy interests for this “technology” classified under ECCN 9E515. Therefore, this final rule makes the other “technology” (9E515.b, .d and .e) also eligible for the requests under § 740.20(g), as described above in the changes this final rule makes to paragraph (g) of License Exception STA.

In ECCN 9E515.a, this final rule revises “items” paragraph (a) to exclude the “technology” for the new commodities added to 9A515.a (.a.1 through .a.4) and .g. “Required” “technology” for these new commodities added to ECCN 9A515.a and .g will be controlled under ECCN 9E515, but in order to impose more restrictive controls on those “technologies” without impacting other 9E515 “technology,” this final rule adds this “technology” being moved to the CCL to a new “items” paragraph (f) to 9E515, as described below.

In ECCN 9E515.f, this final rule adds a new “items” paragraph (f) in the List of Items Controlled section to control “technology” “required” for the “development,” “production,” installation, repair, overhaul, or refurbishing of commodities that this final rule adds to ECCN 9A515 under “items” paragraphs .a.1 through .a.4, or .g. As described above, this final rule is identifying these “technologies” in their own “items” paragraph in order to allow more restrictive controls to be placed on these items without impacting other ECCN 9E515 “technology.”

ECCN 9A004. This final rule revises ECCN 9A004 to add a specific telescope, which was “subject to the ITAR” prior to the effective date of this final rule. A determination was made based on the public comments received by the Department of State and the space interagency working group (a group of U.S. Government agencies involved in the export control system and that deal with space related issues) that this specific telescope was within the scope of spacecraft and related items that did not warrant being subject to the ITAR. Therefore, consistent with the stated purpose of the May 13 rule, as well as section 38(f) of the Arms Export Control Act (AECA), the Department of State has moved this telescope, the James Webb Space Telescope (JWST), which is being developed, launched, and operated under the supervision of the U.S. National Aeronautics and Space Administration (NASA), to the CCL. The “parts,” “components,” “accessories,” and “attachments” that are “specially designed” for use in or with the JWST are also being moved from the ITAR and will be subject to the EAR, as of the effective date of the State and Commerce final rules.

To control the JWST and the “specially designed” “parts,” “components,” “accessories,” and “attachments” for the JWST, this final rule adds two new “items” paragraph to ECCN 9A004. First, this final rule adds a new “items” paragraph (u) to 9A004 to control the JWST (the specific telescope) that is being moved to the CCL from the USML. Second, this final rule adds a new “items” paragraph (v) to control the “specially designed” “parts,” “components,” “accessories,” or “attachments” for use in or with the JWST. The commodities this final rule adds to ECCN 9A004.v include the primary and secondary payloads of the JWST.

This final rule also specifies in the control parameters in the new paragraph (v)(1) to (v)(4) that the “parts,” “components,” “accessories,” and “attachments” specified in paragraph (v) do not include items that are “subject to the ITAR,” microelectronic circuits, items in ECCNs 7A004 and 7A104, or in any ECCN containing “space qualified” as a control criterion (See ECCN 9A515.x.4). As a conforming change, this final rule revises the phrase “ECCN 9A004.x” in paragraph (y) to add a reference to the “parts,” “components,” “accessories,” and “attachments” in paragraph (v) that this final rule adds. This final rule revises the phrase, so it now specifies “ECCN 9A004.v or .x,” which is being done to account for the fact that paragraphs (v) and (x) will contain certain “specially designed” “parts,” “components,” “accessories,” and “attachments” for items enumerated in ECCN 9A004 and that the new items being added to paragraph (v) and (x) could be reclassified under 9A004.y, if subsequently the specific item is identified in an interagency-cleared commodity classification (CCATS) pursuant to § 748.3(e) as warranting control in 9A004.y. BIS anticipates an increase of approximately 20 license applications per year as a result of these changes to the EAR.

In addition to the change to ECCN 9A004, this final rule makes changes to three 9x515 ECCNs to reflect that the JWST and the “specially designed” “parts,” “components,” “accessories,” and “attachments” for the JWST are being added to 9A004. This final rule makes these conforming changes to ECCNs 9A515, 9B515 and 9E515. These are not substantive changes. These changes are described in the next three paragraphs.

ECCN 9A515. This final rule revises the third sentence of the Related Controls paragraph in the List of Items Controlled section of ECCN 9A515 to add a reference to the JWST. This final rule also revises the Note to ECCN 9A515.a to specify items in ECCN 9A004 are not within the scope of 9A515.a. A reference to ECCN 9A004 needs to be added because the description of this Note to ECCN 9A515.a would otherwise include the JWST. This final rule revises “items” paragraph (b) in ECCN 9A515, to add a reference to ECCN 9A004.u for the JWST. This conforming change is needed to specify that ground control systems and training simulators “specially designed” for telemetry, tracking and control of the JWST are also within the scope of ECCN 9A515.b. For similar reasons, this final rule revises “items” paragraph (e) to add a reference to ECCN 9A004.u. This conforming change is made to specify that the microelectronic circuits and discrete electronic components described in ECCN 9A515.e include those “specially designed” for the JWST. This final rule also makes some changes to the .y paragraph in ECCN 9A515, which are discussed further below.

ECCN 9B515. This final rule revises “items” paragraph (a) in the List of Items Controlled section to add a reference to ECCN 9A004.u. This conforming change is needed to specify that the test, inspection, and production “equipment” “specially designed” for the “production” or “development” of the JWST are also classified under ECCN 9B515.a. For similar reasons, this final rule revises the Note to ECCN 9B515.a to add a reference to ECCN 9A004.u. This conforming change is intended to specify that ECCN 9B515.a includes equipment, cells, and stands “specially designed” for the analysis or isolation of faults in the JWST, in addition to the other commodities enumerated in the Note to ECCN 9A515.a.

ECCN 9E515. This final rule also revises the third sentence in the “Related Controls” paragraph in the List of Items Controlled section in ECCN 9E515 to add a reference to the JWST. This sentence will alert persons classifying technology for the JWST to see ECCNs 9E001 and 9E002.

ECCN 9A515. This final rule adds two sentences at the end of the introductory text in the “items” paragraph in the List of Items Controlled section of ECCN 9A515, consistent with the notes to USML Category XV. The introductory paragraph clarifies when “spacecraft” and other items described in ECCN 9A515 remain subject to the EAR even if exported, reexported, or transferred (in-country) with defense articles “subject to the ITAR” integrated into and included therein as integral parts of the item. This introductory paragraph includes some application examples and some qualifiers for when the ITAR jurisdiction would reapply to such defense articles. This final rule adds two new sentences to clarify two additional instances where the jurisdiction of the ITAR would be applicable in such scenarios. The first new sentence is being added to clarify that the removal of a defense article subject to the ITAR from the spacecraft is a retransfer under the ITAR—meaning the removal of a defense article would require an ITAR authorization. The ITAR authorization requirement would apply regardless of which CCL authorization the spacecraft is exported under the EAR. The second sentence clarifies that transfer of technical data regarding the defense article subject to the ITAR integrated into the spacecraft would require an ITAR authorization.

ECCN 9B515. This final rule revises the License Requirements section of ECCN 9B515 to add a missile technology (MT) control. The MT control is being added to impose a license requirement on equipment in ECCN 9B515.a that is for the “development” or “production” of commodities in USML Category XV(e)(12) and XV(e)(19) that are MT controlled. This change is made to conform to the Missile Technology Control Regime (MTCR) Annex and the corresponding MT controls in USML Category XV (MTCR Annex, Category I: Item 2.B.2.). BIS anticipates an increase of approximately 10 license applications per year as a result of this change to the EAR, along with the conforming MT change made to ECCN 9E515 described in the next paragraph.

ECCN 9E515. This final rule, as a conforming change to the change to ECCN 9B515, revises the MT Control paragraph in the License Requirements section on ECCN 9E515. This final rule revises the MT Control paragraph in ECCN 9E515 to add technology for items in 9B515.a that are controlled for MT reasons. This change is made to conform to the MTCR Annex and the corresponding MT controls in USML Category XV (MTCR Annex, Category I: Item 2.E.1.).

This final rule adds five .y paragraphs (ECCN 9A515.y.2, .y.3., .y.4, .y.5, and .y.6) as additional commodities specified under paragraph (y) in this ECCN. As noted in the introductory text of paragraph (y), the U.S. Government through the § 748.3(e) process will identify the items that warrant being classified under 9x515.y, such as the commodities being specified under ECCN 9A515.y.2 to .y.6 in this final rule. Specifically, the following space grade or for spacecraft applications commodities: thermistors (ECCN 9A515.y.2); RF microwave bandpass ceramic filters (dielectric resonator bandpass filters) (9A515.y.3); space grade or for spacecraft applications hall effect sensors (9A515.y.4); subminiature (SMA and SMP) plugs and connectors, TNC plugs and cable and connector assemblies with SMA plugs and connectors (9A515.y.5); and flight cable assemblies (9A515.y.6) have been identified in interagency-cleared commodity classifications (CCATS) pursuant to § 748.3(e) as warranting control in 9A515.y.2 to .y.6. The additions described above for ECCN 9A515.y.2 to y.6 are the second set of approved populations of .y controls being added to 9A515. As stated in the May 13 rule, as well as the July 13 rule (which added ECCN 9A515.y.1), BIS (along with State and Defense) will continue to populate the 9A515.y with additional entries as additional classification determinations are made in response to requests from the public under § 748.3(e).

As required by Executive Order (EO) 13563, BIS intends to review this rule's impact on the licensing burden on exporters. Commerce's full plan is available at: http://open.commerce.gov/news/2011/08/23/plan-retrospective-analysis-existing-rules. Data are routinely collected on an ongoing basis, including through the comments to be submitted and as a result of new information and results from AES data. These results and data have been, and will continue to form, the basis for ongoing reviews of the rule and assessments of various aspects of the rule. As part of its plan for retrospective analysis under EO 13563, BIS intends to conduct periodic reviews of this rule and to modify, or repeal, aspects of this rule, as appropriate, and after public notice and comment. Some of the changes described above are limited to corrections or clarifications of what was included in the May 13 rule. BIS estimates that the substantive changes described above will result in an increase of 30-40 license applications per year, which is within the previous estimate made for the number of license applications that BIS anticipated receiving as a result of the movement of these spacecraft and related items to the CCL under the May 13 rule.

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

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are expected to increase slightly as a result of this rule. The expected increase in total burden hours is expected to be minimal and to not exceed the existing estimates for burden hours associated with the PRA and OMB control number 0694-0088. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

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

4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act (APA) requiring prior notice and the opportunity for public comment because they are either unnecessary or contrary to the public interest. The following revisions are non-substantive or are limited to ensure consistency with the intent of the May 13, 2014 interim final rule, and thus prior notice and the opportunity for public comment is unnecessary. ECCNs 9A004, 9A515, 9B515, and 9E515 are revised to make clarifications to the EAR to ensure consistency with the intent of the May 13, 2014 interim final rule for purposes of what spacecraft and related items warranted ITAR control and what spacecraft items were intended to be moved to the EAR, as well as for consistency with the MTCR Annex for certain changes made to ECCNs 9B515 and 9E515. This includes the changes made to §§ 740.20(g), 742.6(a)(1), (a)(8), (b)(1)(i), (b)(5) and (b)(6), and 750.4(b)(4), (b)(8) and (d)(2)(iv) to ensure appropriate controls are in place under the EAR for the additional spacecraft and related items that are moved to the CCL in this final rule in response to public comments and additional U.S. Government review of those comments. Finally, as contemplated in the May 13 rule, BIS has added five entries to the .y paragraph of ECCN 9A515, which were added as a result of the § 748.3(e) process. For purposes of the APA, there is good cause, and it is in the public interest to incorporate this change so the public can benefit from understanding the classification of the items. These revisions are important to implement as soon as possible so the public will be aware of the correct text and meaning of current EAR provisions.

BIS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3). As mentioned previously, the revisions made by this rule are non-substantive or are limited to ensure consistency with the intent of the May 13, 2014 interim final rule and are important to implement as soon as possible so the public will be aware of the correct text and meaning of current EAR provisions.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for these amendments by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable.

Accordingly, the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

The Entity List (Supplement No. 4 to Part 744) identifies entities and other persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The EAR imposes additional license requirements on, and limits the availability of most license exceptions for, exports, reexports, and transfers (in-country) to those listed. The “license review policy” for each listed entity or other person is identified in the License Review Policy column on the Entity List and the impact on the availability of license exceptions is described in the Federal Register notice adding entities or other persons to the Entity List. BIS places entities and other persons on the Entity List pursuant to sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add five persons to the Entity List. These five persons are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The five entries added to the Entity List are located in Turkey.

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these five persons to the Entity List. Under that paragraph, persons for whom there is reasonable cause to believe, based on specific and articulable facts, that they have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List. Paragraphs (b)(1) through (b)(5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

Specifically, two entities, AR Kompozit Kimya and Murat Taskiran, are being added to the Entity List as these entities exported high grade U.S.-origin carbon fiber to Iran in violation of U.S. law (i.e., 50 U.S.C. 1701 thru 1706 and 30 CFR 560.203 & 560.204). The additional three entities located in Turkey, Fulya Kalfatoglu Oguzturk, Ramor Group and Resit Tavan, are being added to the Entity List on the basis of their involvement in the procurement and/or retransfer of U.S.-origin items to Iran for use by the Iranian military.

Pursuant to § 744.11(b) of the EAR, the ERC determined that the conduct of these five entities raises sufficient concern that prior review of exports, reexports or transfers (in-country) of all items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR.

For the five persons added to the Entity List, BIS imposes a license requirement for all items subject to the EAR and a license review policy of presumption of denial. The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. The acronym “a.k.a.” (also known as) is used in entries on the Entity List to help exporters, reexporters and transferors to better identify listed persons on the Entity List.

This final rule adds the following five persons to the Entity List:

(1) AR Kompozit Kimya, a.k.a., the following two aliases:

Kuyumcukent 2, Plaza Kat 5, No 9, Yenibosna, Istanbul, Turkey;

(2) Fulya Kalafatoglu Oguzturk, a.k.a., the following one alias:

Barajyolu Cd Yenisehir Mh Sinpas Koruk Konutlari No 40 Sogut Blok D1 Istanbul, Turkey;

(3) Murat Taskiran,

Kuyumcukent 2, Plaza Kat 5, No 9, Yenibosna, Istanbul, Turkey;

(4) Ramor Group, a.k.a., the following four aliases:

Unit 42, Gardenya Plaza 7/1, 12th Floor, No: 77, Atasehir, Istanbul, Turkey 34758; and 1st.End.ve.Tic.Serbest Bol.Sub. Kopuzlar Cad.No.8 Solingen Zemin Kat Tuzla/Istanbul, Turkey; and

(5) Resit Tavan,

Turgotozl CD Agaoglu MySkyTowers, A Blok D 12, Istanbul, Turkey 34758.

This rule implements a decision of the ERC to remove the following entry from the Entity List on the basis of on a removal request received by the BIS: Veteran Avia LLC, located in India. The ERC decided to remove Veteran Avia LLC (India) based on information received by BIS regarding activities at the listed location in India and further review conducted by the ERC.

This final rule implements the decision to remove the following entity located in India from the Entity List:

(1) Veteran Avia LLC, a.k.a., the following one alias:

A-107, Lajpat Nagar—I, New Delhi 110024, India and Room No. 34 Import Cargo, IGI Airport Terminal—II, New Delhi 110037, India; and 25B, Camac Street 3E, Camac Court Kolkatta, 700016, India; and Ali's Chamber #202, 2nd Floor Sahar Cargo Complex Andheri East Mumbai, 400099, India. (See also addresses under Armenia, Greece, Pakistan, and U.K).

The removal of the person referenced above, which was approved by the ERC, eliminates the existing license requirements in Supplement No. 4 to part 744 for exports, reexports and transfers (in-country) to this entity. However, the removal of this person from the Entity List does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of an entity from the Entity List nor the removal of Entity List-based license requirements relieves persons of their obligations under General Prohibition 5 in § 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Additionally, this removal does not relieve persons of their obligation to apply for export, reexport or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

On December 20, 2016, the Department of the Treasury's Office of Foreign Assets Control (OFAC) issued General License No. 11, Authorizing Certain Transactions With FAU Glavgosekspertiza Rossii, an entity in the Russian Federation. This general license authorizes transactions otherwise prohibited by Executive Order 13685 (E.O.) of December 19, 2014 that are ordinarily incident and necessary to requesting, contracting for, paying for, receiving, or utilizing a project design review or permit from FAU Glavgosekspertiza Rossii's office(s) in the Russian Federation, provided that the underlying project is located wholly within the Russian Federation, and none of the transactions otherwise violate Executive Order (E.O.) 13685 of December 19, 2014. Any questions regarding to the scope of this general license should be directed to OFAC.

In light of OFAC's General License No. 11, BIS makes a conforming change by modifying the listing for FAU `Glavgosekspertiza Rossii' on the Entity List under the destination of Russia (the term used in the EAR for the Russian Federation). This final rule modifies the license requirement column for this entity to specify that the Entity List's license requirements do not apply to items subject to the EAR that are related to transactions authorized by OFAC pursuant to new General License No. 11 (transactions that are ordinarily incident and necessary to requesting, contracting for, paying for, receiving or utilizing a project design review or permit from this listed entity's office(s) in Russia, so long as the underlying project occurs wholly within Russia and no transactions otherwise violate E.O. 13685). The listing for Ukraine on the Commerce Country Chart, Supp. No. 1 to part 738 of the EAR, includes a footnote that defines the “Crimea region of Ukraine” consistent with section 8(d) of E.O. 13685. FAU `Glavgosekspertiza Rossii' continues to be listed under both Russia and the Crimea region of Ukraine on the Entity List. This final rule amends only the entry under Russia; it does not make any change to the entry listed under the Crimea region of Ukraine. The license requirement for FAU `Glavgosekspertiza Rossii' listed under the destination of the Crimea region of Ukraine continues to apply to all items subject to the EAR.

This final rule revises four entries in the Entity List for the entity Veteran Avia LLC, a.k.a., Veteran Airline, under the destinations of Armenia, Greece, Pakistan and the United Kingdom. As described above, the ERC approved the removal of Veteran Avia LLC (India). Therefore, this final rule makes conforming changes to the remaining four entries for the entity to remove the cross references to India. This final rule does not make any other changes to these four entries, except for revising the Federal Register citation column to reflect this conforming change being made to these four entities. The license requirement for the four entries remains all items subject to the EAR, and the license application review policy remains a presumption of denial.

This final rule makes the following revisions to five entries on the Entity List:

(1) Veteran Avia LLC, a.k.a., the following one alias:

64, Baghramyam Avenue, Apt 16, Yerevan 0033, Armenia; and 1 Eervand Kochari Street Room 1, 375070 Yerevan, Armenia (See also addresses under Greece, Pakistan, and U.K.).

(1) Veteran Avia LLC, a.k.a., the following one alias:

24, A. Koumbi Street, Markopoulo 190 03, Attika, Greece (See also addresses under Armenia, Pakistan, and U.K.).

(1) Veteran Avia LLC, a.k.a., the following one alias:

Room No. 1, ALC Building, PIA Cargo Complex Jiap, Karachi, Pakistan (See also addresses under Armenia, Greece, and U.K.).

(1) FAU `Glavgosekspertiza Rossii', a.k.a., the following three aliases:

Furkasovskiy Lane, building 6, Moscow 101000, Russia (See alternate address under Crimea region of Ukraine).

(1) Veteran Avia LLC, a.k.a., the following one alias:

1 Beckett Place, South Hamptonshire, London, U.K. (See also addresses under Armenia, Greece, and Pakistan).

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on January 10, 2017, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).

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

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. For the five persons added to the Entity List in this final rule, the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See 5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in-country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, the entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the Entity List and would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, and/or to take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

5. For the one entry removed from the Entity List in this final rule, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because it would be contrary to the public interest.

In determining whether to grant a request for removal from the Entity List, a committee of U.S. Government agencies (the End-User Review Committee (ERC)) evaluates information about and commitments made by listed persons requesting removal from the Entity List, the nature and terms of which are set forth in 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (72 FR 31005 (June 5, 2007) (proposed rule), and 73 FR 49311 (August 21, 2008) (final rule)). This one removal has been made within the established regulatory framework of the Entity List. If the rule were to be delayed to allow for public comment, U.S. exporters may face unnecessary economic losses as they turn away potential sales to the entity removed by this rule because the customer remained a listed person on the Entity List even after the ERC approved the removal pursuant to the rule published at 73 FR 49311 on August 21, 2008. By publishing without prior notice and comment, BIS allows the applicant to receive U.S. exports immediately since the applicant already has received approval by the ERC pursuant to 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b).

Removals from the Entity List granted by the ERC involve interagency deliberation and result from review of public and non-public sources, including sensitive law enforcement information and classified information, and the measurement of such information against the Entity List removal criteria. This information is extensively reviewed according to the criteria for evaluating removal requests from the Entity List, as set out in 15 CFR part 744, Supplement No. 5 and 15 CFR 744.16(b). For reasons of national security, BIS is not at liberty to provide to the public detailed information on which the ERC relied to make the decisions to remove this entity. In addition, the information included in the removal request is information exchanged between the applicant and the ERC, which by law (section 12(c) of the Export Administration Act of 1979), BIS is restricted from sharing with the public. Moreover, removal requests from the Entity List contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such removal requests.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. BIS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(1) because this rule is a substantive rule which relieves a restriction. This rule's removal of one person from the Entity List removes a requirement (the Entity-List-based license requirement and limitation on use of license exceptions) on this person being removed from the Entity List. The rule does not impose a requirement on any other person for the removal from the Entity List.

In addition, the Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act (APA) requiring prior notice and the opportunity for public comment for the five conforming changes included in this rule because they are either unnecessary or contrary to the public interest. These five conforming changes are limited to ensure consistency with a removal included in this rulemaking or consistency with OFAC's General License No. 11, and thus prior notice and the opportunity for public comment are unnecessary. The conforming change to the listing for FAU `Glavgosekspertiza Rossii' is intended to ensure consistent treatment of this entity under both the EAR and OFAC's sanctions regime. The other four conforming changes are limited to reflecting the removal of Veteran Avia LLC (India). These four changes are needed to correct the cross-referencing parenthetical phrase included in each of these four entries.

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

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of the ITAR, i.e., “defense articles” and “defense services,” are identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). With few exceptions, items not subject to the export control jurisdiction of the ITAR are subject to the jurisdiction of the Export Administration Regulations (“EAR,” 15 CFR parts 730-774, which includes the Commerce Control List (CCL) in Supplement No. 1 to part 774), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. Both the ITAR and the EAR impose license requirements on exports and reexports. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other set of regulations are subject to the EAR.

All references to the USML in this rule are to the list of defense articles controlled for the purpose of export or temporary import pursuant to the ITAR, and not to the defense articles on the USML that are controlled by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for the purpose of permanent import under its regulations. See 27 CFR part 447. Pursuant to section 38(a)(1) of the Arms Export Control Act (AECA), all defense articles controlled for export or import are part of the USML under the AECA. For the sake of clarity, the list of defense articles controlled by ATF for the purpose of permanent import is the U.S. Munitions Import List (USMIL). The transfer of defense articles from the ITAR's USML to the EAR's CCL for the purpose of export control does not affect the list of defense articles controlled on the USMIL under the AECA for the purpose of permanent import.

The Department published an interim final rule revising USML Category XV on May 13, 2014 (79 FR 27180) and received 11 public comments on the proposed changes to the ITAR. The interim final rule became effective November 10, 2014, and this final rule is making changes in response to the previously received comments received on the interim final rule.

Paragraphs (a)(2), (a)(10), (a)(11), (a)(12), (e)(4), (e)(5), (e)(11)(iv), (e)(12), (e)(20), and Note 3 to paragraph (a) and Note 3 to paragraph (f) are amended to better reflect the intended scope of control with regard to autonomous tracking systems, logistics, propulsion systems, cryocoolers and vibration suppression systems. Paragraphs (a)(7)(i) and (e)(2) are amended to clarify the size of the respective aperture dimension of specific electro-optical remote sensing capabilities and space qualified optics.

Three commenters stated that the aperture dimensions in paragraph (a)(7)(i) (electro-optical satellite systems) should be raised from 0.35m to at or below 1.1m to reflect the commercial market for satellite imagery and account for technical advances in apertures and ground resolution capabilities. The Department acknowledges this comment and that aperture technology is evolving, and has revised (a)(7)(i) to 0.50m to reflect the current status of technology that provides the United States with a critical military or intelligence advantage and warrants control on the USML.

Two commenters stated that (a)(12) should be revised to include a definition of “spaceflight,” or an inclusion of the word “human” in front of “spaceflight,” as well as to clarify that the provision does not control satellites subject to the jurisdiction of the Department of Commerce. The Department disagrees with this comment because the word “spaceflight” was removed from paragraph (a) in a November 10, 2014 clean-up rule (79 FR 66608). In addition, the revisions to paragraph (a)(12) herein clarify that the rule does not control satellites subject to the jurisdiction of the Department of Commerce.

Two commenters suggested that (c)(4) be amended to better reflect the controls imposed by both the EAR and Missile Technology Control Regime, and to avoid any regulatory confusion caused by the fact that drones and UAVs are already controlled under Category VIII of the ITAR. The Department acknowledges the comments, and proposed removal of paragraph (c) to Category XII (Fire Control, Range Finder, Optical and Guidance and Control Equipment) (see 81 FR 8438, Feb. 18, 2016). All public comments pertaining to (c) will be addressed in that final rule.

One commenter stated that the aperture dimensions in paragraph (e)(2) should be raised from 0.35m to 1.1m to reflect the commercial market for satellite imagery. The Department acknowledges this comment and that aperture technology is evolving, and has revised the dimension in (e)(2)(ii) to 0.50m to reflect the current status of technology that provides the United States with a critical military or intelligence advantage and warrants control on the USML.

One commenter noted that paragraph (e)(4), which concerns space qualified mechanical cryocoolers, uses the term “specially designed” to describe the electronics captured in that provision, but that the words “specially designed” are omitted from (e)(5), resulting in certain commercial control electronics being inadvertently caught under the ITAR. The Department agrees with this comment, and has added the words “specially designed” to (e)(5).

One commenter expressed concern with possible unintended consequences of the interim final rule on space qualified laser radar, or light detection and ranging (LIDAR). Specifically, while the interim final rule clarified that (e)(7) does not control space qualified LIDAR, the commenter expressed concern that it could still be caught by paragraph (e)(3). The Department clarifies that paragraph (e)(3) could not inadvertently catch space qualified LIDAR, because note 2 to paragraph (e) makes clear that when the articles described in Category XV(e) are “integrated into and included as an integral part” of an item subject to the EAR, they are subject to the EAR. A space qualified focal plane array by itself would be caught by (e)(3), but once integrated and integral to an item subject to the EAR, such as an EAR-controlled space qualified LIDAR, the space qualified focal plane array would be subject to the EAR.

One commenter stated that Note 3 to paragraph (f) should be amended to clarify that “housekeeping” data from spacecraft are not subject to the ITAR or EAR, and that the ITAR should be updated to reflect the language of Note 2 to Product Group E, Category 9 of the Commerce Control List (CCL). The Department accepts this comment and aligns note 3 to paragraph (f) with the corresponding Note 2 published in Product Group E, Category 9 of the CCL for the purpose of consistency between the USML and CCL.

Two commenters asserted that ITAR § 124.15 imposes “special export controls” over and above the standard licensing controls without a corresponding national security consideration, and the provisions should be amended to reflect that the additional scrutiny imposed would only be used in limited and particular circumstances. In addition, the commenters stated that the Departments of State and Commerce should jointly revise the regulatory requirements to remove the de facto pre-licensing requirement for satellite exports subject to the EAR intended for launch in NATO and major non-NATO allied countries. The Department does not accept these comments as § 124.15 only applies to satellites and related items controlled by Category XV of the USML. These controls do not apply to the EAR, which has its own analogous form of controls.

The Department also makes a number of other revisions to Category XV to limit the controls to those items that provide a critical military or intelligence advantage to the United States and warrant controls on the USML, which are detailed below.

This final rule amends paragraph (a)(2) to clarify that the control applies to spacecraft that perform real-time autonomous detection and tracking of moving objects, other than celestial bodies. The control does not include systems that can track fixed points to determine their own movement based on the relative position of the fixed points over time.

This final rule amends paragraphs (a)(10) and (11) to clarify the nature of the technology and defense articles controlled. Paragraph (a)(10) is revised to control spacecraft that autonomously perform collision avoidance. Paragraph (a)(11) is revised to control sub-orbital craft that incorporate a propulsion system described in either paragraph (e) or Category IV(d)(1)-(6), and are specially designed for atmospheric entry or re-entry. The Department also makes a corresponding change to paragraph (e)(20) to reflect the forms of propulsion controlled in paragraph (a)(11). The Department also removes the Note 3 paragraph (a) regarding attitude control. A new Note 3 to paragraph (a) is added to remove the James Webb Space Telescope from the jurisdiction of the USML and transfer its control to the EAR. A new sentence is also to Note 2 to paragraph (e)(17) removing the primary and secondary payloads of the James Webb Space Telescope from the jurisdiction of the USML and transferring their control to the EAR. Any parts and components of the James Webb Space Telescope that are controlled in other entries of paragraph (e) remain on the USML, except as described in Note 2 to paragraph (e).

This final rule amends paragraphs (e)(4) and (e)(5) to clarify the type of systems controlled. Specifically, the word “systems” is added to both provisions to make it clear that the provisions are designed to control “cold finger systems” in (e)(4) and “vibration suppression systems” and “active dampening systems” in (e)(5).

This final rule amends paragraphs (e)(11)(iv) and (e)(12) to clarify the type of propulsions systems controlled. Paragraph (e)(11)(iv) is revised to control electric propulsion systems, such as plasma and ion based systems, that provide greater than 300 milli-Newtons of thrust and a specific impulse greater than 1,500 sec; or that operate at an input power of more than 15kW. Paragraph (e)(12) is revised to control bi-propellants or mono-propellant rocket engines with which provide greater than 150 lbf (i.e., 667.23 N) vacuum thrust.

The import and export of defense articles and services is a foreign affairs function of the United States government and that rules implementing this function are exempt from §§ 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). Although this rule is exempt from the rulemaking provisions of the APA and without prejudice to the Department's determination that controlling the import and export of defense services is a foreign affairs function, the Department allowed a 45-day public comment period for the interim final rule. The Department has made additional refinements to what was proposed based on the public comments received, which helps to further the objectives described in the interim final rule that is published as a final rule today. This final rule will be effective on January 15, 2017.

Since this final rule is exempt from the provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rulemaking is not a major rule as defined in 5 U.S.C. 804.

This rulemaking will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). These executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rulemaking has been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has been reviewed by the Office of Management and Budget (OMB).

The Department of State reviewed this rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rule does not impose any new reporting or recordkeeping requirements subject the Paperwork Reduction Act 44 U.S.C. Chapter 35.

Accordingly, for the reasons set forth above, title 22, chapter I, subchapter M, part 121 is amended as follows:

Background Statutory Authority for Federal Civil Monetary Penalty Inflation Adjustments

The Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461 note, requires the regular adjustment and evaluation of civil monetary penalties to maintain their deterrent effect and helps to ensure that penalty amounts imposed by the Federal Government are properly accounted for and collected. A “civil monetary penalty” is defined in the Inflation Adjustment Act as any penalty, fine, or other such sanction that is: (1) For a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

The Debt Collection Improvement Act of 1996 (the Improvement Act of 1996), Public Law 104-134, section 31001(s), 110 Stat. 1321, enacted on April 26, 1996, amended the Inflation Adjustment Act by requiring civil monetary penalties to be adjusted for inflation.

The Inflation Adjustment Act was further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the Improvements Act of 2015), Public Law 114-74, section 701, 129 Stat. 584, enacted on November 2, 2015. The Improvements Act of 2015 changed the method agencies use to calculate inflation adjustments to civil monetary penalties, as well as the method and frequency of future adjustments. The Improvements Act of 2015 also instructed agencies to apply its method of calculating the inflation adjustment to the original statutory penalty, rather than to penalties as they were adjusted under the Improvement Act of 1996. To account for inflation that took place between the enactment of the original penalties and the enactment of the Improvements Act of 2015, agencies must make a “catch-up” first adjustment through an interim final rulemaking that is published no later than July 1, 2016, and takes effect no later than August 1, 2016. Agencies shall adjust civil monetary penalties by the inflation adjustment described in section 5 of the Inflation Adjustment Act no later than January 15 of every year thereafter. The Improvements Act of 2015 also provides that any increase in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such an increase, which are assessed after the date the increase takes effect.

As amended, the Inflation Adjustment Act provides that the inflation adjustment does not apply to civil monetary penalties under the Internal Revenue Code of 1986 or the Tariff Act of 1930.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the Federal Alcohol Administration Act (FAA Act) pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 10, 2013, (superseding Treasury Department Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.

The FAA Act contains the Alcoholic Beverage Labeling Act (ABLA) of 1988, Public Law 100-690, 27 U.S.C. 213-219a, which was enacted on November 18, 1988. Section 204 of the ABLA, codified in 27 U.S.C. 215, requires that a health warning statement appear on the labels of all containers of alcoholic beverages manufactured, imported, or bottled for sale or distribution in the United States, as well as on containers of alcoholic beverages that are manufactured, imported, bottled, or labeled for sale, distribution, or shipment to members or units of the U.S. Armed Forces, including those located outside the United States.

The health warning statement requirement applies to containers of alcoholic beverages manufactured, imported, or bottled for sale or distribution in the United States on or after November 18, 1989. The statement reads as follows:

Section 204 of the ABLA also specifies that the Secretary of the Treasury shall have the power to ensure the enforcement of the provisions of the ABLA and issue regulations to carry out them out. In addition, section 207 of the ABLA, codified in 27 U.S.C. 218, provides that any person who violates the provisions of the ABLA is subject to a civil penalty of not more than $10,000, with each day constituting a separate offense.

Most of the civil monetary penalties administered by TTB are imposed by the Internal Revenue Code of 1986, and thus are not subject to the inflation adjustment mandated by the Inflation Adjustment Act. The only civil monetary penalty enforced by TTB that is subject to the inflation adjustment is the penalty imposed by the ABLA at 27 U.S.C. 218.

The TTB regulations implementing the ABLA are found in 27 CFR part 16, and the regulations implementing the Inflation Adjustment Act with respect to the ABLA penalty are found in 27 CFR 16.33. This section indicates that the ABLA provides that any person who violates the provisions of this part shall be subject to a civil penalty of not more than $10,000, but also states that, pursuant to the provisions of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, this civil penalty is subject to periodic cost-of-living adjustment. Accordingly, any person who violates the provisions of 27 CFR part 16 shall be subject to a civil penalty of not more than the amount listed at https://www.ttb.gov/regulation_guidance/ablapenalty.html. Each day shall constitute a separate offense.

To adjust the penalty, § 16.33(b) indicates that TTB will provide notice in the Federal Register and at the Web site mentioned above of cost-of-living adjustments to the civil penalty for violations of this part.

In this document, TTB is publishing its yearly adjustment to the maximum ABLA penalty, as required by the Inflation Adjustment Act, as amended.

TTB made the initial adjustment to the ABLA penalty required by the Inflation Adjustment Act, as amended, in an interim final rule that was published and effective on July 1, 2016 (T.D. TTB-138, 81 FR 43062). Subsequent to the initial adjustment, the Improvements Act of 2015 provides that, not later than January 15 of each year after the initial adjustment, the head of each agency shall adjust each civil monetary penalty subject to the Inflation Adjustment Act, as amended, by the inflation adjustment described in section 5 of the Act.

As mentioned earlier, the ABLA contains a maximum civil monetary penalty, rather than a range of minimum and maximum civil monetary penalties. For such penalties, Section 5 indicates that the inflation adjustment shall be determined by increasing the maximum penalty by the cost-of-living adjustment. The cost-of-living adjustment means the percentage (if any) by which the Consumer Price Index for all-urban consumers (CPI-U) for the month of October preceding the date of the adjustment exceeds the CPI-U for the month of October 1 year before the month of October preceding the date of the adjustment.

The CPI-U in October 2015 was 237.838, and the CPI-U in October 2016 was 241.729. The rate of inflation between October 2015 and October 2016 is therefore 1.636 percent. When applied to the current ABLA penalty of $19,787, this rate of inflation yields a raw (unrounded) inflation adjustment of $323.72. Rounded to the nearest dollar, the inflation adjustment is $324, meaning that the new maximum civil penalty for violations of the ABLA will be $20,111.

The new maximum civil penalty will apply to all penalties that are assessed after January 10, 2017. TTB has also updated its Web page at https://www.ttb.gov/regulation_guidance/ablapenalty.html to reflect the adjusted penalty.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NOAA National Oceanic and Atmospheric Administration NPRM Notice of proposed rulemaking SNPRM Supplemental Notice of Proposed Rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

In 1967, the Coast Guard placed the regulation for a special anchorage area in the main channel of Marina del Rey in 33 CFR after anchorage regulations were transferred from the Army Corps of Engineers to the Coast Guard (32 FR 17726, 17737, December 12, 1967.) The specific regulations and boundaries for this special anchorage area are defined by coordinates found in 33 CFR 110.111.

On May 28, 2014, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled “Anchorage Regulations; Special Anchorage Area, Marina del Rey, California” in the Federal Register (79 FR 30509, May 28, 2014) to disestablish the anchorage. The stated purpose of the NPRM was to align the regulations with the main channel and docking facilities in Marina del Rey harbor. Existing docks located in the northern section of the harbor were built into the pre-existing anchorage area at some point with no record of Coast Guard comment on the construction or its impact on anchorage.

On November 4, 2014, the Coast Guard published notice for a public meeting (79 FR 65361, November 4, 2014) to hear concerns regarding the proposed rulemaking. The meeting was held in Marina del Rey, CA on November 20, 2014. The Coast Guard heard from six speakers. To ensure maximum public input was considered, comments to the public docket were kept open and considered through January 5, 2015. In addition to the six speakers at the public meeting, 44 written submissions were made to the docket. The speakers input and written submissions were reviewed and taken into consideration.

On February 29, 2016, based on the comments received, the Coast Guard published a Supplemental Notice of Proposed Rulemaking (SNPRM) (81 FR 10156, February 29, 2016) that proposed to maintain the special anchorage area, but amend the boundaries and reduce the size of the anchorage.

On April 12, 2016, a public meeting was held in Marina del Rey, CA and comments were open and considered on the docket until April 30, 2016. There was no public representation at the meeting and no comments were submitted to the docket regarding the SNPRM.

On July 14, 2016, the docket was reopened for comment (81 FR 45428, July 14, 2016) for 30 days to provide additional opportunity for public feedback on the SNPRM. During this period four written comments were submitted via the Federal eRulemaking Portal and three comments were sent directly to the Coast Guard via email.

The legal basis for the final rule is: 33 U.S.C. 471, 1221 through 1236, and 2071; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1. These authorities collectively authorize the Coast Guard to define anchorage areas. A special anchorage area is a designated water area within which vessels less than 65 feet (20 meters) in length are not required to sound signals required by Rule 35 of the Inland Navigation Rules (33 CFR 83.35) or exhibit the white anchor lights or shapes required by Rule 30 of the Inland Navigation Rules (33 CFR 83.30.) By regulation, special anchorage areas should be well removed from the fairways and be located where general navigation will not endanger or be endangered by unlighted vessels (33 CFR 109.10.) The purpose of this rule is to improve navigation safety by clearly delineating between the designated anchorage and the navigation channel, and by accommodating vessel traffic on all sides of the anchorage.

The Coast Guard received a total of 51 written comments and recorded six speakers at a public meeting since the inception of this rulemaking from November, 2014. The public docket for this rulemaking includes all written submissions made through the Federal eRulemaking Portal, the recorded transcripts of the public meetings and all other documents pertaining to this topic. This correspondence can be found where indicated under ADDRESSES.

The original NPRM (USCG-2014-0142) was placed on May 28, 2014 and the Coast Guard received a total of 32 written submissions to the docket following this publication. Of the 32 submissions, 12 comments requested a public hearing and additional time for public comment. As a result, the Coast Guard held a public meeting in Marina del Rey on November 20, 2014 and extended the online comment period to January 5, 2015. The Coast Guard heard from six speakers at the public meeting on November 20, 2014 and received 12 additional written comments to the docket, resulting in 44 total written comments to the docket. Of the 44 submissions, 32 comments requested to keep the anchorage as is or to establish an alternate anchorage at another location in the harbor. The Coast Guard understood the concerns of the comment submitters regarding the need for a safe refuge for recreational vessels during storms or other dangerous conditions and thus proposed a smaller anchorage at the same site as an option for mariners in the SNPRM. The Coast Guard received seven comments in support of removing the anchorage. Some comments indicated that vessels anchoring in the existing anchorage site in the main channel create an unsafe situation. Other comments indicated that mariners rarely use the anchorage and that there is little knowledge of its existence. The special anchorage area in question is clearly marked on the chart with reference to the applicable regulation. A copy of the National Oceanic and Atmospheric Administration (NOAA) Office of Coast Survey chart number 18744 has been posted to the docket for reference. In addition, Coast Pilot 7 contains information regarding the special anchorage area in Marina Del Rey. Some comments expressed concern regarding the administration of the special anchorage area by the Marina del Rey Harbormaster, indicating that the Harbor Master does not allow vessels to anchor in the area for other than emergency reasons. Local regulations administered by the Harbor Master are outside the scope of Coast Guard authority, and are not addressed in this rulemaking. At the public meeting, the Coast Guard received two comments and questions concerning proposed projects located in other areas within the harbor. The Coast Guard responded to these comments and questions by indicating that these comments addressed areas outside the anchorage area being discussed. The Coast Guard indicated to the attendees that projects in other areas within the harbor would not impact the existing anchorage and were beyond the scope of the proposed rulemaking.

The Coast Guard determined that the existing configuration of the special anchorage area in Marina del Rey poses a safety concern because it occupies the entire channel width at the north end of the harbor. The SNPRM published on February 29, 2016 proposed a smaller special anchorage area that allows vessel traffic to pass safely on all sides of the designated anchorage and also amends the note to update authority to the Marina del Rey Harbor Master for prescribing local regulation for mooring and boating activities in the area. A public meeting regarding the revised proposal in the SNPRM was held on April 12, 2016. No members of the public attended this meeting. The Federal Register announcement for the meeting was delayed due to administrative errors and was not available for review until after the meeting. However, the meeting was advertised locally and through direct outreach. The online comments for the docket were open until April 30, 2016; no comments were made to the docket during this time period. In light of the delayed announcement by the Federal Register, the Coast Guard reopened the docket for comments on July 15, 2016 to allow for an extended period of public comment. Seven comments were received during this time; four via the online docket and three via email bringing the total number to 51 written submissions to the docket. Two comments were identical and appear to have been incorrectly filed in the docket, as they addressed concerns with a proposed anchorage on the east coast and were unrelated to the anchorage in Marina del Rey. One comment supported the proposal, citing safety concerns due to the increasing number of waterway users. One comment to the docket and three email comments opposed disestablishment of the Marina del Rey anchorage due to there not being an alternate anchorage site for safe harbor in the area and the comments also expressed concern regarding future development. These comments appear to reference the original NPRM, proposing removal of the anchorage, not the most recent SNPRM, proposing retention of the anchorage area with an amended size and shape of the anchorage. The Coast Guard is retaining the anchorage but is changing the shape and size of the anchorage area to allow for safer transit around the anchorage for recreational traffic. The reconfiguration of the anchorage area does not accommodate further development as it more clearly delineates the navigation channel on either side of the anchorage. Nothing in this regulation prevents vessels from anchoring due to emergency situations.

This final rule will decrease the size of the current anchorage in Marina del Rey Harbor. The anchorage is currently a trapezoid-shaped anchorage of approximately 0.48 square nautical miles. The Coast Guard is changing the shape of the anchorage from a trapezoid to a rectangular shape and reducing the size from 0.48 to 0.11 square nautical miles. The revised anchorage will be moved to the middle of the channel across from Burton Chace Park with its northern boundary line extending from approximately the midpoint of Basin G south to the midpoint of Basin H. The anchorage dimensions will be 1,154 feet in length by 365 feet in width. The distance from the closest shore-side dock to the anchorage boundary will be approximately 243 feet. The anchorage boundaries are described, using precise coordinates, in the final regulatory text at the end of this document.

We developed this rule after considering numerous statutes and Executive Orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The Coast Guard expects the economic impact of this proposed rule will not be significant to the maritime and local community. The existing anchorage is currently used only in emergency circumstances and this final rule will not significantly reduce the number of vessels using the anchorage.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This final rule may affect the following entities, some of which might be small entities: Owners or operators of recreational vessels that have a need to anchor in Marina del Rey special anchorage area.

This final rule will not have a significant impact on a substantial number of small entities. Although this rule will decrease the size of the special anchorage area, the dimensions provide sufficient room for vessels to anchor without presenting a hazard to vessels transiting in the channel.

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

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

This rule has no tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act (NEPA) of 1969.42 U.S.C. 4321-4370f, and have concluded that this action is one of the category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the amendment of a currently-existing anchorage area. Normally such actions are categorically excluded from further review under paragraph 34(f) of Figure 2-1 of the Commandant Instruction M16475.1D. A final environmental analysis checklist and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

On November 30, 2016 (81 FR 86270), the Postal Service published notice of amendments to 39 CFR part 265 to implement changes required by the FOIA Improvement Act of 2016 (FOIAIA), Public Law 114-185 (June 30, 2016). These changes were effective on December 27, 2016.

In response to this notice, we received comments that generally supported the amendments to the regulations, but questioned the definition of a “representative of the news media” in the regulations. The Postal Service has reviewed these comments, and has concluded that one change should be made to the definition in question.

Our responses to the comments received, as grouped and categorized for convenience, are as follows.

Question 1: Why did the Postal Service fail to eliminate the “organized and operated” standard from the definition of a representative of the news media in 39 CFR part 265.9(b)(8) in accordance with 5 U.S.C. part 552(a)(4)(a), recent case law, and the Open Government Act of 2007?

Answer: Thank you for bringing this our attention. We will eliminate the “organized and operated” standard from the definition of a representative of the news media in 39 CFR 265.9(b)(8).

Question 2: Why did the Postal Service fail to eliminate the requirement that a news media requester use “editorial skills” to turn “raw materials” into a “distinct work” as a “simple press release commenting on records” would satisfy this criterion?

Answer: Such a change would be inconsistent with 5 U.S.C. 552(a)(4)(a), and the Department of Justice, Office of Information Policy's template regulations for agencies. In addition, eliminating the “editorial skills” requirement would extend the definition from representatives of the news media with a minimal degree of professionalism to almost anyone.

Question 3: Why did the Postal Service fail to indicate that its list of examples of news media entities is non-exhaustive in contemplation of alternative media and evolving news media formats that may include posting content to a Web site?

Answer: Such a change would be inconsistent with the Department of Justice, Office of Information Policy's template regulations for agencies. Please note that the Postal Service accounted for “news organizations that disseminate solely on the Internet” in contemplation of evolving news media formats in 39 CFR 265.9(b)(8).

For the reasons stated in the preamble, the Postal Service amends 39 CFR part 265 as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0487 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 13, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0487, by one of the following methods.

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

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

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

In the Federal Register of October 18, 2016 (Vol. 81, 71668) (FRL-9952-19), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP 10922) filed by Itaconix, 2 Marin Way, Stratham, NH 03885. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts; CAS Reg. No. 1663489-14-2. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. There were no comments received in response to the notice of filing. Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average MW is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts.

For the purposes of assessing potential exposure under this exemption, EPA considered that butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salt is 3800 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salt conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

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

EPA has not found butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts to share a common mechanism of toxicity with any other substances, and butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

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

The Codex has not established a MRL for butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts.

Accordingly, EPA finds that exempting residues of butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salts from the requirement of a tolerance will be safe.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0695 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 13, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0695, by one of the following methods:

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

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

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

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

In the Federal Register of March 16, 2016 (81 FR 14030) (FRL-9942-86), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8400) by Isagro S.P.A. (d/b/a Isagro USA, Inc.), 430 Davis Drive, Suite 240, Morrisville, NC 27560. That document provided notice that the petition requested that 40 CFR 180.557 be amended by establishing tolerances for residues of the fungicide tetraconazole, in or on Vegetable, Fruiting (Crop Group 8-10) at 0.30 parts per million (ppm) and Vegetable, Cucurbit (Crop Group 9) at 0.15 ppm. In the Federal Register of August 29, 2016 (81 FR 59165) (FRL-9950-22), EPA issued another document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the remainder of that petition requesting revision of the existing tolerances for tetraconazole residues on beet, sugar, root to 0.15 ppm; beet, sugar, dried pulp to 0.20 ppm; and beet, sugar molasses to 0.25 ppm. Those documents referenced a summary of the petition prepared by Isagro S.P.A. (d/b/a Isagro USA, Inc.), the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to these notices of filing.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The liver and kidney are the primary target organs of tetraconazole in all species in oral toxicity studies of sub-chronic and chronic durations. Following long-term oral exposure, tetraconazole caused liver tumors in mice in both sexes. In the acute neurotoxicity study, loss of motor activity in both sexes, and clinical signs including hunched posture, decreased defecation, and/or red or yellow material on various body surfaces were observed in females. There was no evidence of immunotoxicity or neurotoxicity following sub-chronic exposure. There were no systemic effects observed in the 21-day dermal toxicity study up to the highest dose tested. Tetraconazole did not show evidence of mutagenicity in in vitro or in vivo studies.

Oral rat and rabbit developmental toxicity studies showed no increased susceptibility of fetuses to tetraconazole. Maternal toxicity (decreased body weight gain and food consumption, increased water intake and increased liver and kidney weights) and developmental toxicity (increased incidence of small fetuses, supernumerary ribs and hydroureter and hydronephrosis) occurred at the same dose level in the rat study. No developmental toxicity was seen in the rabbit study, whereas maternal toxicity (decreased body weight gain) was noted at the highest dose tested. Similarly, there was no evidence of increased susceptibility of offspring in the 2-generation rat reproduction study.

In contrast to the oral studies where the most sensitive effects were in the liver and kidney, inhalation exposure of tetraconazole to rats resulted in portal-of-entry effects including; squamous cell metaplasia of the laryngeal mucous, mono-nuclear cell infiltration, goblet cell hyperplasia, hypertrophy of the nasal cavity and nasopharyngeal duct, and follicular hypertrophy of the thyroid in males. At the highest concentration tested, there were treatment-related increases in absolute lung weights in both sexes. Since the last risk assessment, a 28-day in vivo cancer mode-of-action study in mice was submitted and reviewed leading to the re-evaluation of tetraconazole's cancer potential and classification. EPA has now classified tetraconazole as “Not likely to be carcinogenic to humans at levels that do not cause increased cell proliferation in the liver.” Quantification of carcinogenic potential is not required.

Specific information on the studies received and the nature of the adverse effects caused by tetraconazole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Human Health Risk Assessment for the Section 3 Registration for Application to Fruiting Vegetables (Crop Group 8) and Cucurbit Vegetables (Crop Group 9) and Amending the Sugar Beet Application Scenario and Tolerance” in docket ID number EPA-HQ-OPP-2015-0695.

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

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

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tetraconazole, EPA considered exposure under the petitioned-for tolerances as well as all existing tetraconazole tolerances in 40 CFR 180.557. EPA assessed dietary exposures from tetraconazole in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for tetraconazole. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. As to residue levels in food, EPA utilized the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database DEEM-FCID, Version 3.16 default processing factors and tolerance-level residues and 100 percent crop treated (PCT) for all commodities.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA NHANES/WWEIA dietary survey conducted from 2003 to 2008. As to residue levels in food, EPA utilized residue data from field trials and feeding studies to obtain average residues and assumed the PCT figures provided below. Empirically derived processing factors were used in these assessments when available

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that tetraconazole does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated Residues and Percent Crop Treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

100 PCT were assumed for all food commodities for the acute analysis. The chronic analysis used percent crop treated for new uses (PCTn).

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for existing uses as follows:

Sugarbeet, 70%; field corn, 9%; and soybean, 5%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which tetraconazole may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for tetraconazole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of tetraconazole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of tetraconazole for acute exposures are estimated to be 11 parts per billion (ppb) for surface water and 120 ppb for ground water. The estimated EDWCs of tetraconazole for chronic exposures for non-cancer assessments are estimated to be 5.5 ppb for surface water and 118 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

For acute dietary risk assessment, the water concentration value of 120 ppb was used to assess the contribution to drinking water.

For chronic dietary risk assessment, the water concentration value of 118 ppb was used to assess the contribution to drinking water.

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

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

Tetraconazole is a member of the triazole-containing class of pesticides. Although conazoles act similarly in plants (fungi) by inhibiting ergosterol biosynthesis, there is not necessarily a relationship between their pesticidal activity and their mechanism of toxicity in mammals. Structural similarities do not constitute a common mechanism of toxicity. Evidence is needed to establish that the chemicals operate by the same, or essentially the same, sequence of major biochemical events (EPA, 2002). In the case of conazoles, however, a variable pattern of toxicological responses is found. Some are hepatotoxic and hepatocarcinogenic in mice. Some induce thyroid tumors in rats. Some induce developmental, reproductive, and neurological effects in rodents. Furthermore, the conazoles produce a diverse range of biochemical events including altered cholesterol levels, stress responses, and altered DNA methylation. It is not clearly understood whether these biochemical events are directly connected to their toxicological outcomes. Thus, there is currently no evidence to indicate that tetraconazole shares a common mechanism of toxicity with any other conazole pesticide, and EPA is not following a cumulative risk approach for this tolerance action. For information regarding EPA's procedures for cumulating effects from substances found to have a common mechanism of toxicity, see EPA's Web site at http://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Tetraconazole is a triazole-derived pesticide. This class of compounds can form the common metabolite 1,2,4-triazole and two triazole conjugates (triazolylalanine and triazolylacetic acid). To support existing tolerances and to establish new tolerances for triazole-derivative pesticides, including tetraconazole, EPA conducted a human health risk assessment for exposure to 1,2,4-triazole, triazolylalanine, and triazolylacetic acid resulting from the use of all current and pending uses of any triazole-derived fungicide. The risk assessment is a highly conservative, screening-level evaluation in terms of hazards associated with common metabolites (e.g., use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e., high end estimates of both dietary and non-dietary exposures). The Agency retained a 3X for the LOAEL to NOAEL safety factor when the reproduction study was used. In addition, the Agency retained a 10X for the lack of studies including a developmental neurotoxicity (DNT) study. The assessment includes evaluations of risks for various subgroups, including those comprised of infants and children. The Agency's complete risk assessment is found in the propiconazole reregistration docket at http://www.regulations.gov/, Docket Identification (ID) Number EPA-HQ-OPP-2005-0497.

An updated dietary exposure and risk analysis for the common triazole metabolites 1,2,4-triazole (T), triazolylalanine (TA), triazolylacetic acid (TAA), and triazolylpyruvic acid (TP) was completed on April 9, 2015, in association with registration requests for several triazole fungicides, propiconazole, difenoconazole, and flutriafol. The requested new uses of tetraconazole did not significantly change the dietary exposure estimates for free triazole or conjugated triazoles. Therefore, an updated dietary exposure analysis was not conducted. The April 9, 2015 update for triazoles may be found in docket ID number EPA-HQ-OPP-2014-0788.

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

2. Prenatal and postnatal sensitivity. There are no residual uncertainties for pre- and post-natal toxicity. There is no evidence of increased quantitative susceptibility of rat or rabbit fetuses to in utero exposure to tetraconazole. There is evidence of increased qualitative susceptibility to fetuses in the rat prenatal developmental toxicity study (increased incidences of supernumerary ribs, and hydroureter and hydronephrosis). The LOC is low however because the fetal effects were seen at the same dose as the maternal effects, a clear NOAEL was established, the developmental NOAEL from a study in rats is being used as the POD for the acute dietary endpoint (females 13-49 years of age), and there were no developmental effects in the rabbit study. There is also no evidence of increased quantitative or qualitative susceptibility to offspring in the two-generation reproduction study.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for tetraconazole is complete.

ii. There were effects indicative of neurotoxicity in the acute neurotoxicity study in rats. However, the level of concern (LOC) is low since a clear NOAEL was established which is being used in endpoint selection. Furthermore, the dose at which these neurotoxic effects were observed is 2 to 100-fold higher than the primary effects seen in the other studies in the database (liver and kidney). After preliminary review, a sub-chronic neurotoxicity study has shown no evidence for neurotoxicity. Finally, there are no other signs of neurotoxicity in any of the other studies in the database. Therefore, there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity.

iii. There is no evidence that tetraconazole results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. There is evidence of increased qualitative susceptibility to fetuses in the rat prenatal developmental toxicity study (increased incidences of supernumerary ribs, and hydroureter and hydronephrosis). The LOC is low however because:

• The fetal effects were seen at the same dose as the maternal effects,

• a clear NOAEL was established,

• the developmental NOAEL from a study in rats is being used as the POD for the acute dietary endpoint (females 13-49 years of age), and

• there were no developmental effects in the rabbit study. There is also no evidence of increased quantitative or qualitative susceptibility to offspring in the two-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. There are no residual uncertainties identified for pre- and post-natal toxicity in the exposure databases. Tolerance-level residues, 100 PCT, and modeled water estimates were incorporated into the acute dietary exposure analysis. Therefore, the acute analysis is highly conservative. The chronic and cancer dietary exposure analyses utilized empirical processing factors, average field trial residues, average residues from the feeding studies, percent crop treated estimates, and modeled drinking water estimates. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to tetraconazole in drinking water. These assessments will not underestimate the exposure and risks posed by tetraconazole.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to tetraconazole will occupy 4.6% of the aPAD for all infants (<1 year old), the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to tetraconazole from food and water will utilize 92% of the cPAD for all infants (<1 year old) the population group receiving the greatest exposure. There are no residential uses for tetraconazole

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

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

5. Aggregate cancer risk for U.S. population. As discussed in Unit III.A., EPA has concluded that tetraconazole is “Not likely to be carcinogenic to humans at levels that do not cause increased cell proliferation in the liver.” Because the chronic endpoint is protective of cell proliferation in the liver, there is not likely to be a cancer risk from exposure to tetraconazole.

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

Adequate analytical methods are available to enforce the currently established tetraconazole plant and livestock tolerances (D280006, W. Donovan, 10-Jan-2002, D267481, 12-Oct-2000; D278236, W. Donovan, 22-Oct-2001). Isagro has also submitted adequate method validation and independent laboratory validation (ILV) data which indicates that the QuEChERS multi-residue method L00.00-115 (48135104.der) is capable of quantifying tetraconazole residues in/on a variety of fruit, cereal grain, root, oilseed, and livestock commodities.

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

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

The Codex has not established a MRL for tetraconazole.

EPA revised two commodity definitions for vegetable, fruiting, group 8-10 and vegetable, cucurbit, group 9.

Therefore, tolerances are established for residues of tetraconazole, in or on vegetable, fruiting, group 8-10 at 0.30 ppm and vegetable, cucurbit, group 9 at 0.15 ppm and revised for beet, sugar, root; beet, sugar, dried pulp; and beet, sugar, molasses.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

I. Background II. Discussion of Final Order, Section-by-Section Analysis, and Response to Comments III. Procedural Matters I. Background

The BLM regulations governing onshore oil and gas operations are found at 43 Code of Federal Regulations (CFR) part 3160, Onshore Oil and Gas Operations. Section 3164.1 provides for the issuance of Onshore Oil and Gas Orders to implement and supplement the regulations found in part 3160. Onshore Order 1 has been in effect since October 21, 1983, and was most recently revised in 2007 (see 72 FR 10308 (March 7, 2007)) as part of a joint effort with the Department of Agriculture and the Forest Service (FS), in response to new requirements imposed under Section 366 of the Energy Policy Act of 2005.

On July 29, 2016, the BLM published in the Federal Register a proposed Order that would revise sections III.A., III.C., III.E., and III.I. in Onshore Order 1. The Order proposed to require e-filing of all APDs and NOSs. The comment period for the proposed Order closed on August 28, 2016. This final Order adopts all of the revisions identified in the proposed Order.

Through this change, the BLM modifies Onshore Order 1 to require operators to submit NOSs and APDs through the e-filing system, Automated Fluid Mineral's Support System (AFMSS II), as opposed to the previous system, which allowed either hardcopy or electronic submission. Under the final Order, the BLM will consider granting waivers to the e-filing requirement for individuals who request a waiver because they would experience hardship if required to e-file (e.g., if an operator is prevented from e-filing or is in a situation that would make e-filing so difficult to perform that it would significantly delay an operator's APD submission).

The change to Onshore Order 1 that the BLM is implementing in this final Order will not affect other provisions of Onshore Order 1 that are not discussed in this preamble or this final rulemaking, including the Onshore Order 1 provisions relating to the roles and responsibilities of the FS that are outlined in the 2007 rule. As a matter of practice, the FS will have the same access to the BLM's e-filing system and the same user privileges as BLM employees to process APDs and NOSs electronically for wells proposed on National Forest Service (NFS) lands.

An APD is a request to drill an oil or gas well on Federal or Indian lands. An operator must have an approved APD prior to drilling. Prior to submitting an APD, an applicant may file an NOS requesting the BLM to conduct an onsite review of an operator's proposed oil and gas drilling project. The purpose of an NOS is to provide the operator with an opportunity to gather information and better address site-specific resource concerns associated with a project while preparing its APD package. Operators are not required to submit an NOS prior to filing an APD.

The BLM has recently experienced a decrease in the number of APDs received due to changes in market conditions. Since 2009, the BLM received an average of about 5,000 APDs per year for wells on Federal and Indian lands, of which Indian lands account for about 16%. In FY 2015, the BLM received approximately 4,500 APDs. From October 1, 2015, through the end of September 2016 (FY 2016), the BLM estimates that it received only approximately 1,600 APDs. In coming years, due to the recent drop in oil prices and persistently low natural gas prices, the BLM conservatively estimates that an average of 3,000 APDs will be submitted per year. The BLM anticipates these market conditions to continue for the near term.

The available data show that use of the BLM's e-filing system for APDs and NOSs is common and broad-based among operators, and therefore is not a novel concept. Specifically, over the last few years, roughly half of the APDs submitted to the BLM were submitted using the e-filing system (Well Information System, or WIS). The other half of the APDs were submitted in hard copy. More importantly, the data show that the use of e-filing has increased over time, with the rate nearly doubling from 26 percent in FY 2010 to 51 percent in FY 2014. As of 2014, approximately 411 operators had used the BLM's WIS to e-file NOSs, APDs, well completion reports, sundry notices, and other application materials. Those operators represent an estimated 85 percent of the operators that conduct drilling and completion operations on Federal and Indian leases nationwide.

The BLM's WIS system is a web-based application that operators could use to submit permit applications and other types of information electronically over the Internet. This includes APDs and NOSs, but also well completion reports and sundry notices. The WIS system is an extension of the BLM's current Automated Fluid Minerals Support System (AFMSS), which the BLM uses to track various types of oil and gas information on Federal and Indian lands, including the processing of NOSs and APDs.

Since 2013, the BLM has been developing and deploying updates to its Automated Fluid Minerals Support System in order to gain efficiencies for both government and industry users of the system. The updated system, known as AFMSS II, is being implemented based on modules that will manage different types of data for the BLM's oil and gas program, such as NOSs and APDs, well completion reports, sundry notices, and inspection and enforcement-related operations. The NOS/APD module is the first module developed as part of the update, which phased in beginning in December 2015. As part of the phase in, the BLM conducted training for its staff and operators in order to understand how to use the new module. The NOS/APD module within AFMSS II replaces that portion of the WIS system that allowed operators to submit NOSs and APDs electronically over the internet. Once all the modules that will manage data from the existing system have been deployed for AFMSS II, the old version of AFMSS will be decommissioned. As of the date of this final Order, the NOS/APD module is fully operational with the NOS/APD component of WIS now phased out. The NOS/APD module is ready to meet the demand of an increase in APD e-filing that is likely to result from this final Order.

The goal of the AFMSS II system and the amendments to Onshore Order 1 is to improve operational efficiency and transparency in the processing of APDs and NOSs by requiring operators to use BLM's updated e-filing system as the default approach to APD and NOS filing. Although data show that voluntary use of the e-filing system has increased over time, this Order is necessary to move towards 100 percent electronic APD and NOS submission.

This shift to e-filing presents potential advantages to operators, including operators owned by individual Indian tribes,1 because the new AFMSS II system is expected to streamline the APD and NOS application process. The system will expedite processing and enhance transparency, resulting in savings to both operators and the U.S. Government by:

• Reducing the number of applications with deficiencies by providing users the ability to identify and correct errors through automatic error notifications generated prior to the submission process;

• Automatically populating data fields based on users' previously submitted information;

• Allowing operators to electronically track the progress of their application throughout the BLM review process; and

• Facilitating the use of pre-approved plans, such as Master Development Plans and Master Leasing Plans that have already been input into the system.

The AFMSS II system was developed in response to the Government Accountability Office's (GAO) and the Department of the Interior Office of the Inspector General's (OIG) recommendations in GAO report 13-572 (GAO-13-572) and OIG report CR-EV-MOA-0003-2013 (Report No. CR-EV-MOA-0003-2013). Both reports recommended that the BLM ensure that all key dates associated with the processing of APDs are completely and accurately entered and retained in AFMSS, and in any new system that replaces AFMSS, to help assess whether the BLM is meeting applicable processing deadlines and identify ways to improve the efficiency of the APD review process. Additionally, the OIG report recommends that the BLM: (1) Develop, implement, enforce, and report performance timelines for APD processing; (2) Develop outcome-based performance measures for the APD process that help enable management to improve productivity; and (3) Ensure that the modifications to AFMSS enable accurate and consistent data entry, effective workflow management, efficient APD processing, and APD tracking at the BLM Field Office level. The NOS/APD module developed for AFMSS II addresses these recommendations from the GAO and OIG.

This final order revises existing Onshore Order 1, which primarily supplements 43 CFR 3162.3 and 3162.5. Section 3162.3 covers conduct of operations, section 3162.3-1 covers applications to drill on a lease, section 3162.3-2 covers subsequent well operations, section 3162.3-3 covers other lease operations, and section 3162.3-4 covers well abandonment. Section 3162.5 covers environment and safety obligations.

The BLM received 5 comments on the proposed Order, from trade organizations, members of industry, and non-governmental organizations.

This section of the preamble describes the changes that the BLM is making to three existing provisions of Order 1. The BLM is making only slight modifications to these sections. However, to provide context for the changes, we have included the three complete sections, which are entitled, Where to File an APD, Where to File an NOS, and APD Posting. This Order does not make any changes to these subsections beyond those detailed below.

The final order modifies subsection III.A. to require operators to file APDs using the BLM's electronic commerce application, AFMSS II, for oil and gas permitting and reporting. Through this revision, the BLM will move toward an electronic submission rate of 100 percent. In the past, the BLM has received a portion of the APDs electronically and a portion in hard copy, which introduced a number of inefficiencies and necessitated multiple records management systems. This process change will help to eliminate those problems. In addition, the BLM believes that requiring submission through the e-filing system will improve processing times, public participation, and transparency. The BLM did not make any changes to this section between the proposed and final Order because it did not receive any comments on section III.A., and the agency did not have any independent reason to make a change as part of the final Order.

Likewise, if an operator chooses to file an NOS, final Section III.C. requires operators to file NOSs using the BLM's e-filing system, the APD module of AFMSS II, for oil and gas permitting and reporting. As with APDs, receiving a portion of the NOSs electronically and a portion in hard copy introduced a number of inefficiencies that necessitated multiple records management systems. The BLM hopes that moving towards a 100-percent electronic submission rate for NOSs will eliminate those inefficiencies.

The BLM received one comment on section III.C. that suggested that the BLM increase the time allowed for operators to submit an APD after completing an on-site inspection for an associated NOS. Under the existing requirements of section III.C. of Order 1, if an operator elects to submit an NOS prior to submitting an APD and conducts an on-site inspection based on the NOS, the operator must submit the APD associated with that NOS within 60 days after conducting the onsite inspection. Failure to submit the APD within 60 days of the onsite inspection will result in the NOS being returned to the operator. The commenter recommended extending this timeframe from 60 days to 90 days, because previous analyses conducted by the commenter indicated that 60 days did not afford enough time to complete the APD submission process. This comment is outside the scope of the revisions to Order 1, which pertain only to the e-filing of APDs and NOSs.

Section III.E.1. of the pre-existing Onshore Order 1 already required the BLM to post information about the APD or NOS in an area of the local BLM Field Office that is readily accessible to the public. The pre-existing section III.E.1 also called for that information to be posted on the Internet when possible, though it was not required. Some offices were already posting information about APDs and NOSs on their local BLM Field Office Web sites. Final section III.E.1. of the final Order continues to require the BLM to post information about the APD or NOS in a publicly accessible area of the local BLM Field Office having jurisdiction. Final section III.E.1., also provides that the BLM will post information about the APD or NOS for Federal oil and gas leases on the Internet. This change will increase consistency, transparency, and efficiency for both operators who file APD submissions and the public. The information that the BLM posts online about APDs and NOSs will be consistent with what is already identified in 43 CFR 3162.3-1(g) and will not conflict with the BLM's statutory obligations to protect confidential business information.

In accordance with 43 CFR 3162.3-1(g), information that will be posted online about APDs and NOSs includes: The company/operator name; the well name/number; and the well location described to the nearest quarter-quarter section (40 acres), or similar land description in the case of lands described by metes and bounds, or maps showing the affected lands and the location of all tracts to be leased, and of all leases already issued in the general area. Where the inclusion of maps in such posting is not practicable, the BLM provides maps of the affected lands available to the public for review. This posting requirement only applies to APDs or NOSs proposing to drill into and produce Federal minerals. The posting requirement derives from the Mineral Leasing Act, and does not apply to APDs or NOSs for Indian minerals, which are not made publicly available. The BLM received one comment on section III.E.1. The commenter provided a list of information that it believes the BLM should make publicly available on the Internet: Waiver applications and approvals for the e-filing requirement; APD and Master Development Plan packages (in their entirety); Geographical Information Systems data for each APD; well completion or recompletion reports; sundry notices; and a variety of other information related to the BLM's oil and gas program. Furthermore, the commenter recommended that a public portal be set up in AFMSS II to facilitate posting of this information.

The BLM did not make a change in response to this comment because it is beyond the scope of the proposed amendments to the Order.

Section III.E.1. of the pre-existing Onshore Order 1 already required the BLM to post information about the APD or NOS in an area of the local BLM Field Office that was readily accessible to the public. The pre-existing section III.E.1 also called for that information to be posted on the Internet when possible, though it was not required. Consequently, some BLM Field Offices were already posting information about APDs and NOSs on their local BLM Field Office Web sites. Section III.I. is a new section that allows operators to request a waiver from the requirements in sections III.A. and III.C. of this Order. This section is different from section X., which addresses the requirements for requesting a variance from this Order. Unlike a variance from the other provisions or standards of Order 1, a waiver under this section is limited to the means of submission of an APD (electronic or hardcopy). A waiver under section III.I. is also different from a waiver under section XI., which addresses lease stipulations. Unlike a waiver from the requirement(s) of a lease stipulation, a waiver under this Order is not a permanent exemption from the BLM's requirement to file applications electronically.

When submitting a waiver request under section III.I, the applicant must explain what prevents them from using the e-filing system, plans for complying with the Order's electronic submission requirement in the future, and a timeframe for compliance, all of which is subject to BLM approval. If the applicant would like the waiver to apply to a particular set of APDs or NOSs, then the request must identify the APDs or NOSs to which the waiver request applies. Otherwise, the waiver would apply to all submissions made during the compliance timeframe identified as part of the BLM's approval. The BLM will not consider an APD or NOS that the operator did not submit through the e-filing system, unless the BLM approves a waiver from the e-filing requirement under section III.I.

As part of the final Order, the BLM made four changes to this section in response to comments and additional internal reviews, all of which are discussed in the following paragraphs. Two changes are worth noting at the outset. First, in addition to the proposed Order's requirement to explain what prevents an operator from using the e-filing system, the final Order now also requires operators to identify what their plans are for complying with the electronic submission requirement in the future, and a timeframe for achieving compliance. Second, recognizing that it would be helpful to provide operators time after the effective date of the Order to determine whether or not they need to submit a waiver request, the BLM has delayed the compliance date for the electronic submission requirement in this Order by 30 days. During the interim period, APDs and NOSs may be submitted using existing procedures.

The BLM received a few substantive comments on the waiver section of the proposed Order. One commenter disagreed with the need for operators to make a waiver request for every APD or NOS they file, particularly if the operator was granted a waiver from a prior request. The commenter said chances are that the same circumstances will exist with subsequent APD and NOS waiver requests. The commenter recommended that after the BLM grants a waiver, then that waiver needs to remain in force until no longer needed. The BLM did not entirely accept the commenter's recommendation because it would inject needless uncertainty as to when the applicant will start to use the electronic system. Such a provision would run counter to the BLM's efforts to bring efficiency and modernization to its permitting process. The BLM recognizes that an applicant may need to request a waiver for multiple APDs or NOSs, which is why a waiver request applies to all applications identified in the waiver request. However, the BLM also recognizes that there could be instances when not all APDs and NOSs could be identified at the time an applicant submits a waiver request. Therefore, the BLM modified this section of the final Order. Unlike the proposed Order, which required that the waiver request identify all covered applications, the final Order makes this an option for the applicant. If an applicant does not identify any specific APDs or NOSs in their waiver request, then the waiver request will apply to all submissions made by the applicant until such time as the applicant is able to come into compliance with the electronic submission requirement. The timeframe required to come into compliance is subject to BLM review as part of the waiver approval process, which addresses the BLM's concerns about open-ended waiver approvals. The options provided through this modification are expected to help eliminate delays associated with submitting multiple waiver applications.

Another commenter stated that the Order should define the term “hardship” in order to promote consistency in the application of the waiver provision across BLM Field Offices and limit the amount of unwarranted waiver approvals. The commenter suggested that the BLM adopt language from the proposed Waste Prevention, Production Subject to Royalties, and Resource Conservation rule (Waste Prevention rule) (81 FR 6616) that states that an exemption will be approved if “compliance with this requirement would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.”

The BLM did not make a change in response to the commenter's recommendation. The language cited from the proposed Waste Prevention rule, which also appears in the final Waste Prevention rule, (see 81 FR 83008 (November 18, 2016)), is meant to address circumstances in which new BLM requirements are being applied to existing well operations. In the case of these revisions to Order 1, the electronic submission requirement pertains to applications of wells not yet drilled. Moreover, we do not believe an electronic submission requirement under this rulemaking will deter an operator from deciding to drill a well or group of wells.

However, we do believe there are conditions or circumstances that may prevent an operator from e-filing or would make e-filing so difficult to perform that it would significantly delay an operator's APD submission. For example, an operator could encounter technical problems, such as network or operating system failures, that are delaying or preventing use of the e-filing system. The BLM would evaluate such a case, and the circumstances associated with it, and determine whether it qualifies as a hardship. As previously stated in the proposed Order, however, the BLM cannot conceive of every scenario that may qualify as a hardship, which is why the Order's criteria are broad.

The BLM received several comments expressing concern with AFMSS II's current state of implementation, noting the need for more industry training and correction of issues experienced by some users. The commenters stated that the technical problems being experienced are not necessarily significant, but are an indication that the system is not yet fully operational. While these commenters are supportive of AFMSS II and do not object to 100 percent e-filing of APDs and NOSs, they believe there is too much at stake (additional delays in approval of drilling permits) to make the use of AFMSS II a requirement right now. The commenters recommended that the BLM should transition the implementation of the APD and NOS e-filing requirement through AFMSS II for at least one year to allow for more agency staff and end-user training and until all technical flaws have been resolved.

The BLM assessed whether the technical problems identified by the commenters related to the functionality of the system, and determined that the cases were instead related to user error rather than system error. After receiving this comment, the BLM contacted its field offices and none reported having this issue with operators under their jurisdiction. A revision to the final Order was not made in response to this comment.

With regard to the commenter's recommendation to phase in the requirement to use the e-filing system, the BLM has in fact phased in AMFSS II over the past year and conducted numerous training for operators and BLM staff. The following table illustrates the steps taken to phase out the operation of the previous electronic permitting system, WIS, and phase in AFMSS II.

As noted in the proposed Order, the BLM has already provided training opportunities to its staff and to operators on how to use the APD module for AFMSS II. The following table outlines when that training was provided:

The FMCSA makes minor corrections to fix errors in the final rule published on December 8, 2016. In instruction 10, amending § 383.73, the Agency corrects “(b)(10)” to read “(b)(11)” in both the instruction and associated regulatory text. Additionally in § 383.73, FMCSA changes paragraph “(e)(8)” to read “(e)(9)” in both the instruction and associated regulatory text. In instruction 13, amending Part 383, the Agency changes “§ 384.235” to read “§ 384.236.” These changes are required because as written, the instruction and associated regulatory text would have deleted the recent changes published in the Federal Register on December 5, 2016, in the final rule titled “Commercial Driver's License Drug and Alcohol Clearinghouse” (Clearinghouse) (81 FR 87686, RIN 2126-AB18, Docket No. FMCSA-2011-0031). FMCSA makes these corrections in this document to ensure the original language in the Clearinghouse final rule remains in effect.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) set the 2017 Aleutian Island (AI) pollock TAC at 19,000 metric tons (mt), the 2017 Bering Sea (BS) pollock TAC at 1,340,643 mt, the 2017 BSAI Atka mackerel TAC at 55,000 mt, the 2017 BS Pacific cod TAC at 238,680 mt, and the AI Pacific cod TAC at 12,839 mt. Also set was an AI pollock ABC of 36,664 and a Western Aleutian Island limit for Pacific cod at 26.3 percent of the AI Pacific cod TAC. In December 2016, the North Pacific Fishery Management Council (Council) recommended a 2017 BS pollock TAC of 1,345,000 mt, which is more than the 1,340,643 mt TAC established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI. The Council also recommended decreasing the AI pollock ABC to 36,061 mt from 36,664 mt. This in turn reduces some area and seasonal limits for AI pollock. The Council also recommended a 2017 BSAI Atka mackerel TAC of 65,000 mt, which is more than the 55,000 mt TAC established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI. Furthermore, the Council recommended a 2017 BS Pacific cod TAC of 223,704 mt, and an AI Pacific cod TAC of 15,695 mt, which is less than the BS Pacific cod TAC of 238,680 mt, and more than the AI Pacific cod TAC of 12,839 mt established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI. In addition to changes in TACs, the Council recommended changing the percentage limit of Western Aleutian Island Pacific cod to 25.6 percent of the AI Pacific cod ABC, from the 26.3 percent of the AI Pacific cod TAC. The Council's recommended 2017 TACs, and the area and seasonal apportionments, are based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2016, which NMFS has determined is the best available scientific information for these fisheries.

Amendment 113 to the FMP (81 FR 84434, November 23, 2016) and regulations at § 679.20(a)(7)(viii) require NMFS to announce whether the Aleutian Islands incidental catch allowance, directed fishing allowance, CV Harvest Set-Aside, and Unrestricted Fishery, as well as the Bering Sea Trawl CV A-Season Sector Limitation will be in effect for 2017. NMFS received notification from Adak and Atka that neither will be processing Aleutian Islands Pacific cod in 2017. Therefore, the Pacific cod TACs in Table 9 of this inseason adjustment will be effective for 2017 and the harvest limits in Table 8A (81 FR 84434, November 23, 2016) will not apply in 2017.

Steller sea lions occur in the same location as the pollock, Atka mackerel, and Pacific cod fisheries and are listed as endangered under the Endangered Species Act (ESA). Pollock, Atka mackerel, and Pacific cod are a principal prey species for Steller sea lions in the BSAI. The seasonal apportionment of pollock, Atka mackerel, and Pacific cod harvest is necessary to ensure the groundfish fisheries are not likely to cause jeopardy of extinction or adverse modification of critical habitat for Steller sea lions. NMFS published regulations and the revised harvest limit amounts for Atka mackerel, Pacific cod, and pollock fisheries to implement Steller sea lion protection measures to insure that groundfish fisheries of the BSAI are not likely to jeopardize the continued existence of the western distinct population segment of Steller sea lions or destroy or adversely modify their designated critical habitat (79 FR 70286, November 25, 2014). The regulations at § 679.20(a)(5)(i) specify how the BS pollock TAC will be apportioned. The regulations at § 679.20(a)(7) specify how the BSAI Pacific cod TAC will be apportioned. The regulations at § 679.20(a)(8) specify how the BSAI Atka mackerel TAC will be apportioned.

In accordance with § 679.25(a)(1)(iii), (a)(2)(i)(B), and (a)(2)(iv), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the November 2016 SAFE report for this fishery, the current BSAI pollock, Atka mackerel, and Pacific cod TACs are incorrectly specified. Pursuant to § 679.25(a)(1)(iii), the Regional Administrator is adjusting the 2017 BS pollock TAC to 1,345,000 mt, the 2017 BSAI Atka mackerel TAC to 65,000, the 2017 BS Pacific cod TAC to 223,704 mt, and the AI Pacific cod TAC to 15,695 mt. Therefore, Table 2 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) is revised consistent with this adjustment.

Pursuant to § 679.20(a)(5)(i), Table 5 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) is revised for the 2017 BS allocations of pollock TAC to the directed pollock fisheries and to the Community Development Quota (CDQ) directed fishing allowances consistent with this adjustment. The Steller sea lion protection measure final rule (79 FR 70286, November 25, 2014), sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541, see § 679.20(a)(5)(iii)(B)(6). In Area 541, the 2017 A season pollock harvest limit is no more than 30 percent, or 10,818 mt, of the AI ABC of 36,061 mt. In Area 542, the 2017 A season pollock harvest limit is no more than 15 percent, or 5,409 mt, of the AI ABC of 36,061 mt. In Area 543, the 2017 A season pollock harvest limit is no more than 5 percent, or 1,803 mt, of the AI pollock ABC of 36,061 mt.

Pursuant to § 679.20(a)(8), Table 7 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) is revised for the 2017 seasonal and spatial allowances, gear shares, CDQ reserve, incidental catch allowance, and Amendment 80 allocation of the BSAI Atka mackerel TAC consistent with this adjustment.

Pursuant to § 679.20(a)(7), Table 9 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) is revised for the 2017 gear shares and seasonal allowances of the BSAI Pacific cod TAC consistent with this adjustment.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would allow for harvests that exceed the appropriate allocations for pollock, Atka mackerel, and Pacific cod in the BSAI based on the best scientific information available. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 20, 2016, and additional time for prior public comment would result in conservation concerns for the ESA-listed Steller sea lions.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until January 25, 2017.

This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.