Federal Register Vol. 82, No.7,

Federal Register Volume 82, Issue 7 (January 11, 2017)

Page Range3131-3599
FR Document

82_FR_7
Current View
Page and SubjectPDF
82 FR 3290 - Nominations for the National Sea Grant Advisory Board (NSGAB)PDF
82 FR 3333 - Joint Meeting of the Drug Safety and Risk Management Advisory Committee and the Anesthetic and Analgesic Drug Products Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
82 FR 3350 - Proposed Information Collection; Incidental Take of Marine Mammals During Specified Oil and Gas Industry ActivitiesPDF
82 FR 3345 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingPDF
82 FR 3345 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingPDF
82 FR 3345 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
82 FR 3343 - Fogarty International Center; Notice of MeetingPDF
82 FR 3343 - Center For Scientific Review; Notice of Closed MeetingsPDF
82 FR 3362 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Disability Employment Initiative EvaluationPDF
82 FR 3311 - Notice of Tentative Approval and Opportunity for Public Comment and Public Hearing for Public Water System Supervision Program Revision for West VirginiaPDF
82 FR 3352 - Agency Information Collection Activities: Request for CommentsPDF
82 FR 3382 - E.O. 13224 Designation of Ali Damush, aka Ali Daghmoush, aka Ali Dagmoush, aka Ali Daamoush, aka Ali Dagmush, aka Shiekh Ali Musa Da'amoush as a Specially Designated Global TerroristPDF
82 FR 3211 - EB-5 Immigrant Investor Regional Center ProgramPDF
82 FR 3363 - Licensing Support System Advisory Review PanelPDF
82 FR 3363 - Toshiba Corporation, Advanced Boiling-Water Reactor; Design CertificationPDF
82 FR 3340 - Loan Repayment Program for Repayment of Health Professions Educational Loan; Announcement Type-InitialPDF
82 FR 3320 - Proposed Collection; Comment RequestPDF
82 FR 3300 - Notice of Intent To Grant an Exclusive LicensePDF
82 FR 3324 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
82 FR 3348 - Announcement of Funding Awards; Rural Capacity Building for Community Development and Affordable Housing Program; Fiscal Year (FY) 2016PDF
82 FR 3299 - Meeting of the U.S. Naval Academy Board of VisitorsPDF
82 FR 3282 - Countervailing Duty Investigation of Certain Biaxial Integral Geogrid Products From the People's Republic of China: Final Affirmative Determination and Final Determination of Critical Circumstances, in PartPDF
82 FR 3284 - Certain Biaxial Integral Geogrid Products From the People's Republic of China: Final Determination of Sales at Less Than Fair ValuePDF
82 FR 3292 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
82 FR 3294 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Post-Data Workshop Webinar for Atlantic Blueline Tilefish; Public MeetingPDF
82 FR 3356 - Certain Potassium Chloride Powder Products; Commission Determination Not To Review an Initial Determination Granting Joint Motion To Terminate the Investigation Based Upon Settlement; Termination of the InvestigationPDF
82 FR 3359 - Certain Flash Memory Devices and Components Thereof; Institution of InvestigationPDF
82 FR 3295 - Record of Decision (ROD) for the United States Marine Corps Santa Margarita River Conjunctive Use Project (SMR CUP) at Marine Corps Base (MCB) Camp Pendleton, CaliforniaPDF
82 FR 3291 - North Pacific Fishery Management Council; Public MeetingPDF
82 FR 3292 - New England Fishery Management Council; Public MeetingPDF
82 FR 3289 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
82 FR 3348 - Proposed Settlement Agreement Under Environmental Protection StatutesPDF
82 FR 3363 - Notice on Penalty Inflation Adjustments for Civil Monetary PenaltiesPDF
82 FR 3336 - Current Good Manufacturing Practice Requirements for Combination Products; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
82 FR 3365 - New Postal ProductsPDF
82 FR 3349 - Marianas Trench Marine National Monument, Commonwealth of the Northern Mariana Islands; Completion of the Northern Islands Submerged Lands Transfer to the Commonwealth of the Northern Mariana IslandsPDF
82 FR 3356 - Notice of Proposed Information Collection; Request for Comments for 1029-0024PDF
82 FR 3280 - Submission for OMB Review; Comment RequestPDF
82 FR 3146 - Airworthiness Directives; Rolls-Royce plc Turbofan EnginesPDF
82 FR 3347 - Center for Substance Abuse Prevention; Notice of MeetingPDF
82 FR 3382 - Petition for Exemption; Summary of Petition Received; The Boeing CompanyPDF
82 FR 3307 - Western Refining Pipeline Company; Notice for Temporary Waiver of Filing and Reporting RequirementsPDF
82 FR 3308 - CP Bloom Wind LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
82 FR 3310 - Notice of Effectiveness of Exempt Wholesale Generator StatusPDF
82 FR 3310 - Combined Notice of Filings #2PDF
82 FR 3304 - Combined Notice of Filings #1PDF
82 FR 3301 - Combined Notice of Filings #2PDF
82 FR 3307 - Combined Notice of Filings #1PDF
82 FR 3302 - FirstLight Hydro Generating Company; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and ProtestsPDF
82 FR 3308 - Algonquin Power and Utilities Corporation; Notice of Existing Licensee's Failure To File Notice of Intent To File a New License Application, Soliciting Pre-Application Documents and Notices of Intent To File a License ApplicationPDF
82 FR 3310 - Enbridge Energy, Limited Partnership; Notice of Filing of Supplement to Facilities Surcharge SettlementPDF
82 FR 3305 - Notice of Commission Staff AttendancePDF
82 FR 3307 - Sustainable Power Group, LLC; sPower Development Company, LLC; sPower Development Company, LLC; Notice of Petition for EnforcementPDF
82 FR 3300 - Northern Natural Gas Company; Notice of Request Under Blanket AuthorizationPDF
82 FR 3309 - Pomelo Connector, LLC; Notice of ApplicationPDF
82 FR 3306 - Mountain Regional Water Special Services District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
82 FR 3302 - Combined Notice of Filings #2PDF
82 FR 3332 - Recommended Warning for Over-the-Counter Acetaminophen-Containing Drug Products and Labeling Statements Regarding Serious Skin Reactions; Guidance for Industry; AvailabilityPDF
82 FR 3335 - Recommended Statement for Over-the-Counter Aspirin-Containing Drug Products Labeled With Cardiovascular Related Imagery; Draft Guidance for Industry; AvailabilityPDF
82 FR 3326 - International Drug Scheduling; Convention on Psychotropic Substances; Single Convention on Narcotic Drugs; World Health Organization; Scheduling Recommendations; 4-Methylethcathinone and Nine Other Substances; Request for CommentsPDF
82 FR 3372 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing and Immediate Effectiveness of Proposed Rule Change, as Modified by Amendment No. 1, Regarding the Update of Its Corporate Action Service for the Processing of Redemptions Events and the Transition to International Organization for Standardization 20022 Messaging for Corporate Action AnnouncementsPDF
82 FR 3379 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fees SchedulePDF
82 FR 3375 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Order Approving a Proposed Rule Change Relating to Opening and Closing Rotations for Series Trading on the ExchangePDF
82 FR 3366 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of the Shares of the United States 3x Oil Fund and United States −3x Short Oil Fund Under NYSE Arca Equities Rule 8.200PDF
82 FR 3352 - Protocol for Categorical Exclusions Supplementing the Council on Environmental Quality Regulations Implementing the Procedural Provisions of the National Environmental Policy Act for Certain National Indian Gaming Commission Actions and ActivitiesPDF
82 FR 3360 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-PXI Systems Alliance, Inc.PDF
82 FR 3319 - Agency Information Collection Activities: Submission for OMB Review; Comment Request (3064-0018 & -0137)PDF
82 FR 3315 - Agency Information Collection Activities: Proposed Collection Renewals; Comment Request (3064-0006, & -0184)PDF
82 FR 3292 - Endangered Species; File No. 17225PDF
82 FR 3361 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Interchangeable Virtual Instruments Foundation, Inc.PDF
82 FR 3361 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-American Society Of Mechanical EngineersPDF
82 FR 3361 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ASTM International StandardsPDF
82 FR 3360 - Notice Pursuant to the National Cooperative Research And Production Act of 1993-Cooperative Research Group on Ros-Industrial Consortium-AmericasPDF
82 FR 3361 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ODPI, Inc.PDF
82 FR 3360 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Petroleum Environmental Research Forum Project No. 2014-10, Direct Monitoring of Flare Combustion EfficiencyPDF
82 FR 3288 - Submission for OMB Review; Comment Request; Vessel Monitoring System Requirements in Western Pacific FisheriesPDF
82 FR 3288 - Proposed Information Collection; Comment Request; Reporting Requirements for the Ocean Salmon Fishery Off the Coasts of Washington, Oregon, and CaliforniaPDF
82 FR 3355 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
82 FR 3311 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
82 FR 3314 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
82 FR 3313 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
82 FR 3258 - Petitions for Reconsideration of Action in Rulemaking ProceedingPDF
82 FR 3279 - Petitions for Reconsideration of Action in Rulemaking ProceedingPDF
82 FR 3170 - Affirmative Action for Individuals With Disabilities in Federal Employment; CorrectionPDF
82 FR 3281 - Sensors and Instrumentation Technical Advisory Committee; Notice of Open MeetingPDF
82 FR 3281 - Information Systems; Technical Advisory Committee; Notice of Open MeetingPDF
82 FR 3338 - Agency Information Collection Activities: Proposed Collection: Public Comment Request; Nurse Anesthetist Traineeship (NAT) ProgramPDF
82 FR 3385 - Proposed Collection; Comment Request for Form 211PDF
82 FR 3383 - Proposed Collection; Comment Request on Information Collection Tools Relating to Qualitative Feedback on Agency Service DeliveryPDF
82 FR 3384 - Proposed Collection; Comment Request on Capitalization of InterestPDF
82 FR 3383 - Proposed Collection; Comment Request for Tax Exempt Entity LeasingPDF
82 FR 3294 - Proposed Information Collection; Comment Request; NTIA/FCC Web-Based Frequency Coordination SystemPDF
82 FR 3209 - Atlantic Highly Migratory Species; Technical Amendment to RegulationsPDF
82 FR 3234 - Air Plan Approval and Air Quality Designation; KY; Redesignation of the Kentucky Portion of the Louisville 1997 Annual PM2.5PDF
82 FR 3339 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Ryan White HIV/AIDS Program Outcomes and Expanded Insurance CoveragePDF
82 FR 3364 - Information Collection: NRC Form 327, Special Nuclear Material (SNM) and Source Material (SM) Physical Inventory Summary Report, and NUREG/BR-0096, Instructions and Guidance for Completing Physical InventoryPDF
82 FR 3281 - Revisions to User Fees for Export and Investment Promotion Services/EventsPDF
82 FR 3233 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Nitrogen Oxide Emissions from Coal-Fired Electric Generating UnitsPDF
82 FR 3293 - Draft Arctic Marine Mammal Disaster Response GuidelinesPDF
82 FR 3287 - Endangered and Threatened Species; Take of Anadromous FishPDF
82 FR 3289 - Endangered and Threatened Species; Take of Anadromous FishPDF
82 FR 3325 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
82 FR 3342 - National Cancer Institute; Notice of MeetingPDF
82 FR 3346 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 3167 - Establishment of Class E Airspace, Thermopolis, WYPDF
82 FR 3385 - Notice of Availability of a Record of Decision (ROD) for the Reconfiguration of VA Black Hills Health Care System (BHHCS)PDF
82 FR 3250 - Revision of the America's Marine Highway Program RegulationsPDF
82 FR 3295 - Intent To Grant an Exclusive License of U.S. Government-Owned PatentsPDF
82 FR 3186 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for Rusty Patched Bumble BeePDF
82 FR 3168 - 2017 Civil Monetary Penalties Inflationary AdjustmentPDF
82 FR 3173 - Uniform National Discharge Standards for Vessels of the Armed Forces-Phase II Batch OnePDF
82 FR 3219 - National Industrial Security ProgramPDF
82 FR 3131 - Regional Innovation ProgramPDF
82 FR 3185 - Child Care and Development Fund (CCDF) Program; CorrectionPDF
82 FR 3171 - Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Visible Emissions and Particulate MatterPDF
82 FR 3172 - Determination of Nonattainment and Reclassification of the Houston-Galveston-Brazoria 2008 8-Hour Ozone Nonattainment Area; Texas; CorrectionPDF
82 FR 3357 - Notice of Publication of Petitions for Duty Suspensions and Reductions and Opportunity To Comment on PetitionsPDF
82 FR 3217 - Airworthiness Directives; 328 Support Services GmbH (Type Certificate Previously Held by AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH) AirplanesPDF
82 FR 3143 - Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) AirplanesPDF
82 FR 3258 - Updates Concerning Non-Geostationary, Fixed-Satellite Service Systems and Related MattersPDF
82 FR 3149 - Alternative Pilot Physical Examination and Education RequirementsPDF
82 FR 3518 - National Primary Drinking Water Regulations; Announcement of the Results of EPA's Review of Existing Drinking Water Standards and Request for Public Comment and/or Information on Related IssuesPDF
82 FR 3554 - Federal Plan Requirements for Commercial and Industrial Solid Waste Incineration UnitsPDF
82 FR 3140 - Airworthiness Directives; The Boeing Company AirplanesPDF
82 FR 3137 - Airworthiness Directives; The Boeing Company AirplanesPDF
82 FR 3388 - Financial Responsibility Requirements Under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining IndustryPDF
82 FR 3512 - Financial Responsibility Requirements for Facilities in the Chemical, Petroleum and Electric Power IndustriesPDF

Issue

82 7 Wednesday, January 11, 2017 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3324-3325 2017-00433 Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: American Society of Mechanical Engineers, 3361-3362 2017-00355 ASTM International, 3361 2017-00354 Cooperative Research Group on ROS-Industrial Consortium—Americas, 3360-3361 2017-00353 Interchangeable Virtual Instruments Foundation, Inc., 3361 2017-00356 ODPi, Inc., 3361 2017-00352 Petroleum Environmental Research Forum Project No. 2014-10, Direct Monitoring of Flare Combustion Efficiency, 3360 2017-00351 PXI Systems Alliance, Inc., 3360 2017-00363 Army Army Department NOTICES Exclusive Patent Licenses: U.S. Government-Owned Patents, 3295 2017-00247 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3325-3326 2017-00298 Commerce Commerce Department See

Economic Development Administration

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3280-3281 2017-00399
Defense Department Defense Department See

Army Department

See

Navy Department

RULES Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II Batch One, 3173-3185 2017-00153
Economic Development Economic Development Administration RULES Regional Innovation Program, 3131-3137 2017-00116 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Intent to Grant Exclusive Licenses: VariGrid Explorations, LLC, 3300 2017-00434
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Texas; Control of Air Pollution from Visible Emissions and Particulate Matter, 3171-3172 2017-00087 Texas; Nonattainment and Reclassification of the Houston-Galveston-Brazoria 2008 8-Hour Ozone Nonattainment Area; Correction, 3172-3173 2017-00086 Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II Batch One, 3173-3185 2017-00153 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Kentucky; Redesignation of the Kentucky Portion of the Louisville 1997 Annual PM2.5 Nonattainment Area to Attainment, 3234-3250 2017-00324 Maryland; Control of Nitrogen Oxide Emissions from Coal-Fired Electric Generating Units, 3233-3234 2017-00309 Federal Plan Requirements: Commercial and Industrial Solid Waste Incineration Units, 3554-3599 2016-31203 Financial Responsibility Requirements: CERCLA for Classes of Facilities in the Hardrock Mining Industry, 3388-3512 2016-30047 Facilities in the Chemical, Petroleum and Electric Power Industries, 3512-3516 2016-30040 National Primary Drinking Water Regulations: Announcement of the Results of EPA's Review of Existing Drinking Water Standards and Request for Public Comment and/or Information on Related Issues, 3518-3552 2016-31262 NOTICES Public Water System Supervision Program; Revisions: West Virginia; Tentative Approval and Solicitation of Requests for Public Hearing, 3311 2017-00449 Equal Equal Employment Opportunity Commission RULES Affirmative Action for Individuals with Disabilities in Federal Employment; Correction, 3170-3171 2017-00340 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes, 3143-3146 2016-31958 Rolls-Royce plc Turbofan Engines, 3146-3149 2017-00398 The Boeing Company Airplanes, 3137-3143 2016-31187 2016-31188 Alternative Pilot Physical Examination and Education Requirements, 3149-3167 2016-31602 Establishment of Class E Airspace: Thermopolis, WY, 3167-3168 2017-00288 PROPOSED RULES Airworthiness Directives: 328 Support Services GmbH (Type Certificate Previously Held by AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH) Airplanes, 3217-3219 2016-31965 NOTICES Petitions for Exemption; Summaries: Boeing Co., 3382-3383 2017-00394 Federal Communications Federal Communications Commission PROPOSED RULES Non-Geostationary, Fixed-Satellite Service Systems and Related Matters, 3258-3279 2016-31795 Petitions for Reconsideration of Action in Rulemaking Proceeding, 3258 2017-00342 Petitions for Reconsideration of Action in Rulemaking Proceeding; Correction, 3279 2017-00341 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3311-3315 2017-00343 2017-00344 2017-00345 2017-00346 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3315-3320 2017-00361 2017-00362 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: FirstLight Hydro Generating Co., 3302 2017-00386 Combined Filings, 3301-3305, 3307, 3310 2017-00377 2017-00378 2017-00387 2017-00388 2017-00389 2017-00390 Effectiveness of Exempt Wholesale Generator Status: ESS Lewes Project, LLC; Comanche Peak Power Company LLC; Clinton Battery Utility, LLC; et al., 3310 2017-00391 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: CP Bloom Wind, LLC, 3308 2017-00392 License Applications: Algonquin Power and Utilities Corpo.; Failure to File, 3308-3309 2017-00385 Permit Applications: Pomelo Connector, LLC, 3309-3310 2017-00380 Petitions for Enforcement: Sustainable Power Group, LLC; sPower Development Company, LLC, 3307 2017-00382 Qualifying Conduit Hydropower Facilities: Mountain Regional Water Special Services District, 3306 2017-00379 Requests for Blanket Authorizations: Northern Natural Gas Co., 3300-3301 2017-00381 Requests for Waivers: Western Refining Pipeline Co., 3307-3308 2017-00393 Settlement Agreements: Enbridge Energy, Ltd., 3310 2017-00384 Staff Attendances, 3305 2017-00383 Federal Housing Finance Agency Federal Housing Finance Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3320-3324 2017-00435 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Rusty Patched Bumble Bee, 3186-3208 2017-00195 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Incidental Take of Marine Mammals during Specified Oil and Gas Industry Activities, 3350-3352 2017-00462 Environmental Impact Statements; Availability, etc.: Marianas Trench Marine National Monument, Commonwealth of the Northern Mariana Islands; Completion of the Northern Islands Submerged Lands Transfer to the Commonwealth of the Northern Mariana Islands, 3349-3350 2017-00404 Proposed Settlement Agreements under Environmental Protection Statutes: Atlantic Richfield Co., 3348-3349 2017-00416 Food and Drug Food and Drug Administration NOTICES Guidance: Current Good Manufacturing Practice Requirements for Combination Products, 3336-3338 2017-00411 Recommended Statement for Over-the-Counter Aspirin-Containing Drug Products Labeled With Cardiovascular Related Imagery, 3335-3336 2017-00374 Recommended Warning for Over-the-Counter Acetaminophen-Containing Drug Products and Labeling Statements Regarding Serious Skin Reactions, 3332-3333 2017-00375 International Drug Scheduling; Convention on Psychotropic Substances: World Health Organization Scheduling Recommendations, 3326-3332 2017-00373 Meetings: Drug Safety and Risk Management Advisory Committee and the Anesthetic and Analgesic Drug Products Advisory Committee, 3333-3335 2017-00463 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3352 2017-00444 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Health Resources and Services Administration

See

Indian Health Service

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

RULES Child Care and Development Fund Program; Correction, 3185-3186 2017-00093
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nurse Anesthetist Traineeship Program, 3338-3339 2017-00337 Ryan White HIV/AIDS Program Outcomes and Expanded Insurance Coverage, 3339-3340 2017-00322 Homeland Homeland Security Department PROPOSED RULES EB-5 Immigrant Investor Regional Center Program, 3211-3216 2017-00441 Housing Housing and Urban Development Department NOTICES Funding Awards: Rural Capacity Building for Community Development and Affordable Housing Program Fiscal Year 2016, 3348 2017-00432 Indian Health Indian Health Service NOTICES Funding Availability: Loan Repayment Program for Repayment of Health Professions Educational Laons, 3340-3342 2017-00436 Industry Industry and Security Bureau NOTICES Meetings: Information Systems Technical Advisory Committee, 3281 2017-00338 Sensors and Instrumentation Technical Advisory Committee, 3281 2017-00339 Information Information Security Oversight Office PROPOSED RULES National Industrial Security Program, 3219-3232 2017-00152 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

National Indian Gaming Commission

See

National Park Service

See

Surface Mining Reclamation and Enforcement Office

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Reward for Original Information, 3385 2017-00336 Capitalization of Interest, 3384-3385 2017-00332 Qualitative Feedback on Agency Service Delivery, 3383-3384 2017-00335 Tax Exempt Entity Leasing, 3383 2017-00331 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Biaxial Integral Geogrid Products from the People's Republic of China, 3282-3284 2017-00429 Determinations of Sales at Less than Fair Value: Certain Biaxial Integral Geogrid Products from the People's Republic of China, 3284-3287 2017-00428 Revisions to User Fees for Export and Investment Promotion Services/Events, 3281-3282 2017-00310 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Flash Memory Devices and Components Thereof, 3359-3360 2017-00423 Certain Potassium Chloride Powder Products, 3356-3357 2017-00424 Petitions for Duty Suspensions and Reductions and Opportunity to Comment on Petitions, 3357-3359 2017-00062 Justice Department Justice Department See

Antitrust Division

Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Disability Employment Initiative Evaluation, 3362 2017-00451 Maritime Maritime Administration PROPOSED RULES America's Marine Highway Program, 3250-3258 2017-00249 National Archives National Archives and Records Administration See

Information Security Oversight Office

National Indian National Indian Gaming Commission NOTICES Protocol for Categorical Exclusions Supplementing the Council on Environmental Quality Regulations: Implementation of Procedural Provisions of the National Environmental Policy Act for Certain National Indian Gaming Commission Actions and Activities, 3352-3355 2017-00364 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 3343-3347 2017-00296 2017-00456 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 3345 2017-00459 Fogarty International Center Advisory Board, 3343 2017-00457 National Cancer Institute, 3342-3343 2017-00297 National Institute of Allergy and Infectious Diseases, 3345 2017-00458 National Institute of Neurological Disorders and Stroke, 3345 2017-00460 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species, 3209-3210 2017-00325 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reporting Requirements for the Ocean Salmon Fishery Off the Coasts of Washington, Oregon, and California, 3288 2017-00348 Vessel Monitoring System Requirements in Western Pacific Fisheries, 3288-3289 2017-00349 Draft Arctic Marine Mammal Disaster Response Guidelines, 3293-3294 2017-00308 Endangered and Threatened Species: Take of Anadromous Fish, 3287-3290 2017-00299 2017-00300 Meetings: Fisheries of the South Atlantic; Southeast Data, Assessment, and Review; Post-Data Workshop Webinar for Atlantic Blueline Tilefish, 3294 2017-00426 Mid-Atlantic Fishery Management Council, 3289, 3292-3293 2017-00418 2017-00427 New England Fishery Management Council, 3292 2017-00419 North Pacific Fishery Management Council, 3291 2017-00420 Permits: Endangered Species; File No. 17225, 3292 2017-00360 Requests for Nominations: National Sea Grant Advisory Board, 3290-3291 2017-00465 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 3355-3356 2017-00347 National Science National Science Foundation NOTICES Penalty Inflation Adjustments for Civil Monetary Penalties, 3363 2017-00412 National Telecommunications National Telecommunications and Information Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: NTIA/FCC Web-Based Frequency Coordination System, 3294-3295 2017-00326 Navy Navy Department NOTICES Meetings: U.S. Naval Academy Board of Visitors, 3299-3300 2017-00430 Records of Decisions: United States Marine Corps Santa Margarita River Conjunctive Use Project, Marine Corps Base Camp Pendleton, CA, 3295-3299 2017-00422 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Special Nuclear Material (SNM) and Source Material (SM) Physical Inventory Summary Report, and NUREG/BR-0096, Instructions and Guidance for Completing Physical Inventory, 3364-3365 2017-00320 Charter Renewals: Licensing Support Network Advisory Review Panel, 3363 2017-00440 Design Certification Applications: Toshiba Corp., Advanced Boiling-Water Reactor; Withdrawal, 3363-3364 2017-00438 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 3365 2017-00406 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: C2 Options Exchange, Inc., 3375-3379 2017-00367 Chicago Board Options Exchange, Inc., 3379-3382 2017-00368 Depository Trust Co., 3372-3375 2017-00369 NYSE Arca, Inc., 3366-3372 2017-00366 State Department State Department RULES Civil Monetary Penalties Inflationary Adjustment, 3168-3170 2017-00166 NOTICES Designations as Global Terrorists: Ali Damush, aka Ali Daghmoush, aka Ali Dagmoush, aka Ali Daamoush, aka Ali Dagmush, aka Shiekh Ali Musa Da'amoush, 3382 2017-00442 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Center for Substance Abuse Prevention, 3347 2017-00396 Surface Mining Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 3356 2017-00402 Transportation Department Transportation Department See

Federal Aviation Administration

See

Maritime Administration

Treasury Treasury Department See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department NOTICES Records of Decision: Reconfiguration of VA Black Hills Health Care System (BHHCS), 3385-3386 2017-00278 Separate Parts In This Issue Part II Environmental Protection Agency, 3388-3516 2016-30047 2016-30040 Part III Environmental Protection Agency, 3518-3552 2016-31262 Part IV Environmental Protection Agency, 3554-3599 2016-31203 Reader Aids

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

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82 7 Wednesday, January 11, 2017 Rules and Regulations DEPARTMENT OF COMMERCE Economic Development Administration 13 CFR Part 312 [Docket No.: 160615526-6999-02] RIN 0610-AA68 Regional Innovation Program AGENCY:

Economic Development Administration, U.S. Department of Commerce.

ACTION:

Final rule.

SUMMARY:

The Economic Development Administration (“EDA” or “the Agency”), U.S. Department of Commerce (“DOC”), is issuing a Final Rule implementing the Regional Innovation Program as authorized by section 27 of the Stevenson-Wydler Technology Innovation Act of 1980, as amended (“Stevenson-Wydler” or the “Act”). Through the Regional Innovation Strategies Program (“RIS Program”), the centerpiece of the Regional Innovation Program, EDA currently awards grants for capacity-building programs that provide proof-of-concept and commercialization assistance to innovators and entrepreneurs and for operational support for organizations that provide essential early-stage funding to startup companies. This Final Rule lays out the overarching regulatory framework for the Regional Innovation Program and specifically focuses on outlining the structure of the RIS Program.

On September 21, 2016, EDA published a Notice of Proposed Rulemaking (“NPRM”) and received two public comments, one non-germane and one substantive. The Final Rule responds to the substantive comment by making two clarifying edits and one conforming edit to the section regarding eligible RIS Program project activities. EDA also made one technical correction, unrelated to the substantive comment, to the general terms and conditions section relating to the RIS Program.

DATES:

This Final Rule becomes effective on February 10, 2017.

ADDRESSES:

EDA posted both public comments on the Federal Rulemaking Portal, www.regulations.gov, without change.

FOR FURTHER INFORMATION CONTACT:

Mara Quintero Campbell, Regional Counsel, Office of the Chief Counsel, Economic Development Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Suite 72023, Washington, DC 20230; telephone: (202) 482-9055.

SUPPLEMENTARY INFORMATION:

Background on Regional Innovation Program History

In recent years, concerns about America's global competitiveness led to calls for the Federal Government to more actively foster innovation and better coordinate Federal support for scientific and technological research and development, technology transfer, and commercialization. In particular, without Federal support, local communities struggled to effectively support the development of regional innovation clusters (defined below), which research has shown to be a significant catalyst of economic development. At the same time, regional innovation was hampered by limited access to the capital necessary to implement the innovative manufacturing technologies required to compete in the twenty-first century global economy.

In response to these concerns and with a desire to maintain America's role as a leader in innovation, Congress enacted section 27 of Stevenson-Wydler (“section 27” or “Regional Innovation Program”) as part of the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Reauthorization Act of 2010, Public Law 111-358 (Jan. 4, 2011) (“COMPETES Act”). As originally enacted by Congress, section 27 authorized the Secretary of Commerce (“Secretary”) to “establish a regional innovation program to encourage and support the development of regional innovation strategies, including regional innovation clusters and science and research parks.” In 2014, Congress enacted legislation that narrowed the scope of the Regional Innovation Program. See Public Law 113-235 (Dec. 16, 2014). This legislative change is discussed more fully below. The Regional Innovation Program now encompasses two complementary sub-programs: The Regional Innovation Strategies Program (“RIS Program”) set forth in section 27(b) of the Act, and the Regional Innovation Research and Information Program (“RIRI Program”) set forth in section 27(c) of the Act.

Given EDA's leadership in and support of innovation and entrepreneurship as key elements of a robust economy, the Secretary turned to EDA to develop and implement the Regional Innovation Program. Established under the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 et seq.) (“PWEDA”), EDA leads the Federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA makes investments to facilitate job creation for U.S. workers, increase private-sector investment, promote American innovation, and accelerate long-term sustainable economic growth. EDA's regulations, codified at 13 CFR parts 300 through 315, provide the framework through which the Agency administers its economic development assistance programs.

Structure

Through the RIS Program (section 27(b) of Stevenson-Wydler), the core of the Regional Innovation Program, EDA competitively awards grants to eligible applicants for activities related to the formation and development of regional innovation clusters. 15 U.S.C. 3722(b). Stevenson-Wydler defines a regional innovation cluster as “a geographically bounded network of similar, synergistic, or complementary entities that—(A) are engaged in or with a particular industry sector and its related sectors; (B) have active channels for business transactions and communication; (C) share specialized infrastructure, labor markets, and services; and (D) leverage the region's unique competitive strengths to stimulate innovation and create jobs.” 15 U.S.C. 3722(f)(1).

The RIRI Program (section 27(c) of Stevenson-Wydler) is designed to formulate and disseminate best practices for regional innovation strategies, provide technical assistance for the development and implementation of regional innovation strategies, support the development of metrics to evaluate regional innovation strategies, collect and publicize data on regional innovation cluster activity in the United States, and fund competitive research grants to support the goals of the RIRI Program.

This Final Rule (hereafter “Rule”) focuses on the RIS Program because EDA has not yet implemented the RIRI Program. However, these regulations—and, in particular, the definition sections—are structured to incorporate the RIRI Program into a future subpart C of part 312 of title 13 of the Code of Federal Regulations once EDA implements the RIRI Program.

EDA's economic development assistance programs under PWEDA and the RIS Program seek to increase economic growth and resilience, enhance prosperity, and improve quality of life, but they approach the goal from different angles, as reflected in the enabling statutes and regulations. For example, the focus of PWEDA's core programs is increasing employment and private investment in economically distressed regions. Funding generally is limited to regions that meet chronic high unemployment or low per capita income criteria, and grant rates increase with the level of economic distress up to a maximum of 100 percent in limited circumstances. Conversely, the RIS Program focuses on encouraging scientific and technological innovation and collaboration; it thus provides funding to a broader range of entities and does not require applicants to demonstrate economic distress. Moreover, it also is capped at a 50 percent grant rate.

In addition to awarding grants under the RIS and RIRI Programs, EDA anticipates conducting at a future date COMPETES Act prize competitions that support the goals and objectives of the Regional Innovation Program. See 15 U.S.C. 3719.

Implementation

EDA publicly launched the RIS Program in September 2014 when it announced the first round of competitions for funding under the Program. The announcement of a Federal Funding Opportunity (“FFO”) identified three separate competitions for a total of $15 million in Federal funding: The i6 Challenge, Science and Research Park Development Grants, and Seed Fund Support (“SFS”) Grants (formerly known as Cluster Grants for Seed Capital Funds). The i6 Challenge, first launched in 2010 as part of the multi-agency Startup America Initiative, is designed to support the creation of programs for innovation and entrepreneurship—specifically, the development, creation, or expansion of proof-of-concept and commercialization programs that increase the development of innovations, ideas, intellectual property, and research into viable companies. Science and Research Park Development Grants supported feasibility and planning studies to create innovation hubs for driving the results of applied research and development to the commercial marketplace by supporting the entire product or process lifecycle from idea generation to business creation. SFS Grants support activities related to the feasibility, planning, formation, launch, or expansion of cluster-based seed capital funds to assist innovation-based startups with high growth potential. After considering 241 applications, in early 2015, EDA awarded 17 i6 Grants, 12 Science and Research Park Development Grants, and 9 SFS Grants to applicants throughout EDA's six regions.

In 2014, Congress amended the Regional Innovation Program in section 705 of the Revitalize American Manufacturing and Innovation Act of 2014, Public Law 113-235 (Dec. 16, 2014) (“RAMI”). Under RAMI, Congress eliminated the provisions authorizing Science and Research Park Development Grants and Loan Guarantees for Science Park Infrastructure but did maintain eligibility for such parks to apply for RIS Program awards. Accordingly, when EDA announced a second round of RIS Program competitions in August 2015, it included $10 million in Federal funding for i6 Challenge Grants and SFS Grants, and no longer had a separate Science and Research Park Development Grant competition. In addition, consistent with changes made by Congress in RAMI to section 27(b)(7) of the Act, EDA implemented a targeted outreach program to ensure that public and private sector entities in rural communities were aware of the opportunity. After considering 168 applications for funding, EDA awarded 17 i6 Grants and 8 SFS Grants in early 2016.

A third round of competitions for $15 million in funding for i6 Challenge Grants and SFS Grants was completed in November 2016. After considering 215 applications for funding, EDA awarded 27 i6 Grants and 8 SFS Grants.

With EDA's RIS Program funding, successful applicants have undertaken transformative projects such as the development of a hardware entrepreneurship ecosystem, expansion of a seed capital fund focused on commercializing water technology, and investigation of the feasibility of constructing a test track for connected and autonomous vehicles. Grant recipients are required to provide semi-annual reports, using EDA-developed metrics that are consistent across grantees, that EDA uses to evaluate the impact of the RIS Program.

Administration

Administration and management of the Regional Innovation Program is an EDA-wide responsibility. The Regional Innovation Program (including the RIS Program) is broadly overseen by the Office of Innovation and Entrepreneurship (“OIE”), which was established by the Secretary pursuant to section 25 of the Act. 15 U.S.C. 3720. Housed within EDA, OIE works to foster a more innovative U.S. economy focused on turning new ideas and inventions into products and technologies that spur job growth and competitiveness while promoting economic development through innovation and entrepreneurship. In addition, EDA's Deputy Assistant Secretary for Regional Affairs has served as the Grants Officer for RIS Program awards, with day-to-day administration of these awards being handled by the Agency's regional offices.

The Final Rule

Because of the significant differences in EDA's authority under PWEDA and Stevenson-Wydler, there is a need for a standalone regulatory framework for the Regional Innovation Program. This Rule creates such a framework. From the outset, the Rule makes it clear that the Regional Innovation Program is made up of two sub-programs, the RIS and RIRI Programs, administered by EDA. While focusing on the RIS Program given that EDA has not yet implemented the RIRI Program, the Rule is designed to accommodate future implementation of the RIRI Program by defining terms applicable to the RIRI Program and reserving a subpart for future implementing regulations.

The Rule establishes definitions applicable to the Regional Innovation Program generally and a set of terms specific to the RIS Program. In addition, the Rule describes the purpose and scope of the RIS Program and delineates the eligible recipients, eligible program activities, investment rate, matching share, application components, application evaluation and selection criteria, and general terms and conditions applicable to the RIS Program.

Public Comments and Summary of Changes to Final Rule

On September 21, 2016 EDA published an NPRM in the Federal Register (81 FR 64805) requesting public comments on EDA's proposed regulations for the Regional Innovation Program. The public comment period closed on November 21, 2016. EDA received two public comments in response to the NPRM. One comment was non-germane. The other, from a nonprofit organization, was generally supportive of the Rule while raising five specific issues, which are addressed below. EDA is also making one technical correction to Section 312.12, unrelated to the substantive comment, that is discussed in more detail below.

Issue One: Eligible Project Activities for the RIS Program

The commenter advocates for removing several items from the list of “Eligible project activities” under Section 312.7—namely, the purchase of equipment (312.7(a)(9) of the NPRM), construction (312.7(a)(10) of the NPRM), and other activities approved by the Assistant Secretary (312.7(a)(11) of the NPRM). It suggests eliminating equipment and construction funding to avoid compromising the core value and unique nature of the RIS Program, or, in the alternative, it recommends permitting the purchase of equipment with matching share but not Federal funds. It similarly expresses concern that Section 312.7(a)(11) “could be used to expand the program beyond the legislation's intent.”

While EDA disagrees with the commenter's position that these activities should be ineligible, EDA does acknowledge that some clarification of eligible activities will be helpful in overcoming any misperceptions that these regulations somehow dilute the essence of the RIS Program or conflict with Congressional intent. In response to the comment on equipment and construction, EDA is combining Sections 312.7(a)(9) and (10) into a new Section 312.7(a)(9) to make clear that construction activities may be funded only as ancillary activities necessary to permit the installation of equipment. The Rule further removes ambiguity by expressly providing in new Section 312.7(a)(9) that the purchase of equipment and its installation are allowable only if necessary to support another eligible activity. Accordingly, projects involving only the purchase and/or installation of equipment will not be funded, keeping the core purposes of the RIS Program intact. EDA is also modifying a cross-reference in Section 312.7(b)(3), part of the list of ineligible activities, to account for the consolidation of these sections.

Likewise, EDA is adding language to new Section 312.7(a)(10) (312.7(a)(11) in the NPRM) to address the commenter's concern that this provision has the potential to extend the RIS Program beyond what Congress intended. Stevenson-Wydler clearly affords the Assistant Secretary (through delegation from the Secretary) broad discretion to add to the inventory of activities already authorized by the statute by stating that “[g]rants awarded under this subsection may be used for activities determined appropriate by the Secretary” and then identifying a non-exhaustive list of some permissible activities. See 15 U.S.C. 3722(b)(2). However, EDA recognizes that the Assistant Secretary's discretion is appropriately limited by the statutorily established purpose of the RIS Program (“to encourage and support the development of regional innovation strategies, including regional innovation clusters”, see 15 U.S.C. 3722(a)). To emphasize this point, EDA is modifying new Section 312.7(a)(10) by adding the phrase “consistent with section 27(b) of Stevenson-Wydler” to the end of the paragraph.

Issue Two: Use of RIS Program Funds for Equity Investments

Referencing the NPRM preamble, the commenter agrees with EDA's position that Stevenson-Wydler does not permit the use of RIS Program funds or matching share for equity investments. However, the commenter takes issue with EDA's statement that early-stage companies can access other relevant Federal sources of investment capital, arguing that a Federally-funded seed fund program does not exist but is needed and would increase innovation and entrepreneurial activity.

While EDA appreciates the commenter's advocacy for Federal programs that would directly provide investment capital, the commenter's argument does not implicate the regulatory provision itself. For this reason, as well as the commenter's acknowledgment that the provision is consistent with Stevenson-Wydler, no change is being made in this Rule regarding the prohibition on the use of RIS Program funds for equity investments.

Issue Three: Application Components

The commenter also conveys its views on two aspects of Section 312.10. First, it suggests that the application components outlined in Section 312.10 “will help ensure applicants apply a broad strategic framework to their cluster activities” but nevertheless should not be scoring criteria for the RIS Program. Second, the commenter states that the nature of the workforce information requested in Section 312.10(e) is unclear and recommends replacing EDA's proposed Section 312.10(e) with “the extent to which the regional innovation cluster is likely to improve the training or employment opportunities of the regional workforce”.

Regarding the commenter's first suggestion on scoring, section 27(b) of Stevenson-Wydler contains a list of required application components for the RIS Program and Section 312.10 simply mirrors this statutory scheme. See 15 U.S.C. 3722(b)(4)(B). As a result, all RIS Program applications must as a threshold matter address these required components to be complete. As the commenter itself implies, the components are not merely “technical” requirements but are instead clearly substantive, merits-based elements that are intended to be part of EDA's evaluation of the applicant's competitiveness relative to other applicants.

The commenter's second suggested modification is unduly narrow, focusing this selection factor exclusively on how the regional innovation cluster will improve workforce training or employment opportunities while overlooking the statute's explicitly broad and potentially multi-dimensional emphasis on the capacity of cluster participants to access or contribute to a well-trained workforce. Put another way, Section 312.10(e) parallels the statutory language, providing unambiguous flexibility to the applicant to demonstrate the extent and nature of the project's connection to and support of a well-trained workforce, of which training and employment opportunities may be a part. See 15 U.S.C. 3722(b)(4)(B)(iv).

In light of the above, the Rule leaves Section 312.10 unchanged from the NPRM.

Issue Four: Administration and Management of RIS Program Awards

The commenter also suggests that stronger national-level coordination of the RIS Program could provide greater value in terms of increased opportunities “to share best practices in seed fund and cluster development across awardees and the innovation community as a whole.”

EDA has no plans at this time to significantly change how it administers and manages the Regional Innovation Program. Although the Agency comprises a Washington, DC headquarters (“HQ”) office and six regional offices, there is a unified EDA that leverages the strengths and skills of all of its geographically-dispersed staff. As explained above, the Regional Innovation Program is managed and overseen by OIE, based out of HQ. The day-to-day administration of RIS Program grants is handled by the regional offices, in close coordination with OIE. This integrated approach effectively balances resource allocation with program execution by providing a coordinated and responsive national agenda. At the same time, this puts grant administration in the hands of those who are the Agency's day-to-day grants experts and offers the program's diverse stakeholders valuable points of contact in the field. No change is being made to the regulations, as proposed, in response to the commenter's recommendation.

Issue Five: Prize Competitions

Finally, the commenter seeks additional clarity on the Agency's statement in the NPRM's preamble that EDA may in the future conduct prize competitions that support the goals and objectives of the Regional Innovation Program. The commenter notes that it strongly believes that the current scale and structure of the RIS Program awards is integral to the value of the program and should not change “unless the program scales toward its original conception as a $100 million program.” The commenter can, however, foresee a positive role for prize competitions if the Agency were to use remaining portions of the fiscal year's available funding on smaller projects that support regional innovation clusters.

EDA agrees with the commenter that the RIS Program is primarily a grant-making initiative. To allay any concerns, the Agency reiterates that it does not anticipate making any immediate and significant changes to the program's current funding model. The Agency, however, is exploring the use of prize competitions at some point as a complementary tool to respond to evolving regional innovation cluster needs and support the overall objectives of the Regional Innovation Program, particularly as it works to develop the RIRI Program. No change to the proposed regulations is necessitated by this issue raised by the commenter.

Additional Change Made to Final Rule

Unrelated to the substantive comment received, EDA is making one technical correction in this Rule. In Section 312.12, EDA is adding 13 CFR 302.17, dealing with conflicts of interest, to the list of PWEDA general terms and conditions that do not apply to the RIS Program. The conflict of interest provision contained in 13 CFR 302.17 is specific to the requirements of PWEDA and thus is inapplicable to the RIS Program, which is instead based on the statutory requirements of Stevenson-Wydler.

Classification

Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts. 5 U.S.C. 553(a)(2). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

Executive Orders No. 12866 and 13563

This Rule was drafted in accordance with Executive Orders 12866 and 13563. It was reviewed by the Office of Management and Budget (“OMB”), which found that the Rule will be a “significant regulatory action” as defined by Executive Orders 12866 and 13563.

Congressional Review Act

This Rule is not major under the Congressional Review Act (5 U.S.C. 801 et seq.).

Executive Order No. 13132

Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” It has been determined that this Rule does not contain policies that have federalism implications.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (“PRA”) requires that a Federal agency consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the PRA unless that collection displays a currently valid OMB Control Number. The Rule does not include a new information collection requirement and will, thus, use the previously approved Standard Form 424 family of forms to collect information relevant to the grant applications.

The following table provides a complete list of the collections of information (and corresponding OMB Control Numbers) set forth in this Rule. These collections of information are necessary for the proper performance and functions of EDA.

Part or section of this rule Nature of request Form/title/OMB control No. 312.10 All Eligible Applicants must submit required application materials using the Standard Form 424 family of forms SF-424 (4040-0004), SF-424A (4040-0006), SF-424B (4040-0007). List of Subjects in 13 CFR Part 312

Application requirements, Cluster grants, Financial assistance, Regional innovation, Regional innovation clusters, Regional Innovation Program, Regional Innovation Research and Information Program, Regional Innovation Strategies Program, Research.

Regulatory Text

For the reasons set forth in the preamble, EDA amends title 13, chapter III of the Code of Federal Regulations by adding part 312 to read as follows:

PART 312—REGIONAL INNOVATION PROGRAM Subpart A—General Provisions Sec. 312.1 Purpose and scope of the Regional Innovation Program. 312.2 General definitions from Public Works and Economic Development Act regulations inapplicable to this part. 312.3 General definitions. Subpart B—Regional Innovation Strategies Program 312.4 Purpose and scope of the Regional Innovation Strategies Program. 312.5 Regional Innovation Strategies Program definitions. 312.6 Eligible recipients. 312.7 Eligible project activities. 312.8 Investment rates. 312.9 Matching share requirements. 312.10 Application components. 312.11 Application evaluation and selection criteria. 312.12 General terms and conditions for investment assistance. Subpart C—Regional Innovation Research and Information Program [Reserved] 312.13-312.17 [Reserved] Authority:

15 U.S.C. 3701 et seq.; Department of Commerce Organization Order 10-4.

Subpart A—General Provisions
§ 312.1 Purpose and scope of the Regional Innovation Program.

The purpose of the Regional Innovation Program is to encourage and support the development of regional innovation strategies. The Regional Innovation Program includes two sub-programs. One is focused on the formation and development of regional innovation clusters and implemented through the Regional Innovation Strategies Program. 15 U.S.C. 3722(b). The second program is focused on best practices, metrics and the collection and dissemination of information related to regional innovation strategies, achieved through the Regional Innovation Research and Information Program. 15 U.S.C. 3722(c). The Secretary has delegated to the Economic Development Administration the authority to implement and administer the Regional Innovation Program.

§ 312.2 General definitions from Public Works and Economic Development Act regulations inapplicable to this part.

The definitions contained in § 300.3 of this chapter do not apply to this part.

§ 312.3 General definitions.

As used in this part, the following terms shall have the following meanings:

Act or Stevenson-Wydler means the Stevenson-Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3701 et seq.).

Assistant Secretary means the Assistant Secretary of Commerce for Economic Development within the Department.

Department of Commerce, Department, or DOC means the U.S. Department of Commerce.

Economic Development Organization means an organization whose primary purpose is to support the economic development of a community or region.

EDA means the Economic Development Administration within the Department.

Eligible applicant means an entity qualified to be an eligible recipient or its authorized representative.

Eligible recipient means a recipient that meets the requirements of § 312.6.

Equipment is defined at 2 CFR 200.33.

Federal agency means any executive agency as defined in 5 U.S.C. 105, and the military departments as defined in 5 U.S.C. 102, as well as any agency of the legislative branch of the Federal Government.

Federal funding opportunity or FFO means an announcement that EDA publishes during the fiscal year on a Federal Government grants platform or on EDA's Internet Web site at http://www.eda.gov, https://www.eda.gov/oie/, or any successor Web site, that provides the funding amounts, application and programmatic requirements, funding priorities, special circumstances, and other information concerning a specific competitive solicitation under EDA's Regional Innovation Program.

Federal interest is defined at 2 CFR 200.41, in accordance with 2 CFR 200.316.

Federal laboratory means any laboratory, any federally funded research and development center, or any center established under section 7 or section 9 of the Act that is owned, leased, or otherwise used by a Federal agency and funded by the Federal Government, whether operated by the government or by a contractor.

Grant means the financial assistance award of EDA funds to an eligible recipient, under which the Eligible Recipient bears responsibility for meeting a purpose or carrying out an activity authorized under Stevenson-Wydler. See 31 U.S.C. 6304.

In-kind contribution(s) means non-cash contributions, which may include contributions of space, Equipment, services, and assumptions of debt that are fairly evaluated by EDA and that satisfy applicable Federal Uniform Administrative Requirements and Cost Principles as set out in 2 CFR part 200.

Indian tribe means an entity on the list of recognized tribes published pursuant to the Federally Recognized Indian Tribe List Act of 1994, as amended (Pub. L. 103-454) (25 U.S.C. 479a et seq.), and any Alaska Native Village or Regional Corporation (as defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)). This term includes the governing body of an Indian tribe, nonprofit Indian corporation (restricted to Indians), Indian authority, or other nonprofit Indian tribal organization or entity; provided that the Indian tribal organization or entity is wholly owned by, and established for the benefit of, the Indian tribe or Alaska Native village.

Investment or Investment assistance means a grant entered into by EDA and a recipient.

Investment rate means, as set forth in § 312.8, the amount of the EDA investment in a particular project expressed as a percentage of the total project cost.

Matching share or Local share means the non-EDA funds and any in-kind contribution(s) that are approved by EDA and provided by a recipient or third party as a condition of an investment. The matching share may include funds from another Federal agency only if authorized by a statute that allows such use, which may be determined by EDA's reasonable interpretation of such authority.

Nonprofit organization is defined at 2 CFR 200.70.

Office of Innovation and Entrepreneurship or OIE means the office established by 15 U.S.C. 3720.

Project means the proposed or authorized activity (or activities), the purpose of which fulfills EDA's mission and program requirements as set forth in the Act and this part, and which may be funded in whole or in part by EDA investment assistance.

Public-private partnership means a relationship formalized by contractual agreement between a public agency and a private-sector entity that reasonably defines the terms of collaboration in the delivery and financing of a public project.

Real property means any land, whether raw or improved, and includes structures, fixtures, appurtenances, and other permanent improvements, excluding moveable machinery and equipment.

Recipient means an entity receiving EDA investment assistance, including any successor to the entity approved by EDA in writing. If investment assistance is awarded to more than one recipient under a single award, the recipients are referred to as “co-recipients” and, unless otherwise provided in the terms and conditions of the investment assistance, each co-recipient is jointly and severally liable for fulfilling the terms of the investment assistance.

Region or Regional means an economic unit of human, natural, technological, capital, or other resources, defined geographically. Geographic areas comprising a region need not be contiguous or defined by political boundaries, but should constitute a cohesive area capable of undertaking self-sustained economic development.

Regional innovation clusters or RICs means a geographically bounded network of similar, synergistic, or complementary entities that are engaged in or with a particular industry sector and its related sectors; have active channels for business transactions and communication; share specialized infrastructure, labor markets, and services; and leverage the region's unique competitive strengths to stimulate innovation and create jobs.

Regional Innovation Program means the program enacted by Stevenson-Wydler at 15 U.S.C. 3722.

Regional Innovation Research and Information Program or RIRI Program means the program authorized by 15 U.S.C. 3722(c).

Regional Innovation Strategies Program or RIS Program means the cluster grant program authorized by 15 U.S.C. 3722(b).

Science or research park means a property-based venture that has: Master-planned property and buildings designed primarily for private-public research and development activities, high technology and science-based companies, and research and development support services; a contractual or operational relationship with one or more science- or research-related institutions of higher education or governmental or nonprofit research laboratories; a primary mission to promote research and development through industry partnerships, assisting in the growth of new ventures and promoting innovation-driven economic development; a role in facilitating the transfer of technology and business skills between researchers and industry teams; and a role in promoting technology-led economic development for the community or region in which the park is located.

Secretary means the Secretary of Commerce.

State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, or any other territory or possession of the United States.

United States means all of the States.

Subpart B—Regional Innovation Strategies Program
§ 312.4 Purpose and scope of the Regional Innovation Strategies Program.

Under the RIS Program, EDA makes grants on a competitive basis to eligible applicants to foster connected, innovation-centric economic regions that support commercialization and entrepreneurship. The grants are intended to build public and private capacity to invent and improve products and services and to bring those products and services to market through a process often referred to as technology commercialization, as demonstrated by methodologically sound metrics for output and outcome.

§ 312.5 Regional Innovation Strategies Program definitions.

In addition to the defined terms set forth in subpart A of this part, the following term applies specifically to the RIS Program:

Institution of higher education means:

(1) An educational institution in any State that—

(i) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of 20 U.S.C. 1091(d);

(ii) Is legally authorized within such State to provide a program of education beyond secondary education;

(iii) Provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary of Education; and

(iv) Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary of Education for the granting of preaccreditation status, and the Secretary of Education has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

(2) Additional institutions included. For purposes of this subpart, the term Institution of higher education also includes—

(i) Any school that provides not less than a 1-year program of training to prepare students for gainful employment in a recognized occupation and that meets the provisions of paragraphs (1)(i), (ii), and (iv) of this definition; and

(ii) An educational institution in any State that, in lieu of the requirement in paragraph (1)(i) of this definition, admits as regular students individuals—

(A) Who are beyond the age of compulsory school attendance in the State in which the institution is located; or

(B) Who will be dually or concurrently enrolled in the institution and a secondary school.

§ 312.6 Eligible recipients.

A recipient eligible for investment assistance includes:

(a) A State;

(b) An Indian tribe;

(c) A city or other political subdivision of a State;

(d) An entity that is a nonprofit organization and whose application for funding under the RIS Program is supported by a State or a political subdivision of a State;

(e) An entity that is an institution of higher education, a public-private partnership, a science or research park, a Federal laboratory, or an economic development organization or similar entity, and whose application for funding under the RIS Program is supported by a State or a political subdivision of a State; or

(f) A consortium of any of the entities described in paragraphs (a) through (e) of this section.

§ 312.7 Eligible project activities.

(a) Activities eligible for a RIS Program grant include:

(1) Feasibility studies;

(2) Planning activities;

(3) Technical assistance;

(4) Developing or strengthening communication and collaboration between and among participants of a regional innovation cluster;

(5) Attracting additional participants to a regional innovation cluster;

(6) Facilitating market development of products and services of a regional innovation cluster, including through demonstration, deployment, technology transfer, and commercialization activities;

(7) Developing relationships between a regional innovation cluster and entities or clusters in other regions;

(8) Interacting with the public and State and local governments to meet the goals of the regional innovation cluster;

(9) Purchase of equipment and equipment-related modifications or renovations of a facility, but only to the extent that such equipment and any related modifications or renovations are used to support another eligible activity as described in this section (the recipient may be required to secure and record the Federal interest in the equipment); and

(10) Any other activity determined appropriate by the Assistant Secretary and consistent with section 27(b) of Stevenson-Wydler.

(b) An ineligible activity includes, but is not limited to:

(1) Use of Federal funds or matching share for equity investments;

(2) Acquisition or improvement of real property;

(3) Construction except to the extent provided in paragraph (a)(9) of this section; and

(4) Lending programs, such as a direct loan program or capitalizing a revolving loan fund.

§ 312.8 Investment rates.

(a) Minimum investment rate. There is no minimum investment rate for a project.

(b) Maximum investment rate. The maximum investment rate for a project shall not exceed 50 percent.

§ 312.9 Matching share requirements.

The required matching share of a project's eligible costs may consist of cash or in-kind contribution(s) whose value can be readily determined, verified, and justified. Applicants must show at the time of application that the matching share is committed to the project, will be available as needed, and is not or will not be conditioned or encumbered in any way that would preclude its use consistent with the requirements of the investment assistance. EDA shall determine at its sole discretion whether the matching share documentation adequately addresses the requirements of this section.

§ 312.10 Application components.

In addition to the criteria set forth in the FFO, to be considered for a RIS Program grant, eligible applicants must provide the following information:

(a) A description of the regional innovation cluster supported by the proposed activity;

(b) The extent to which the regional innovation cluster is supported by the private sector, State and local units of government, and other relevant stakeholders;

(c) The methods that participants in the regional innovation cluster will use to encourage and solicit participation by all types of entities that might benefit from participation, including newly formed entities and rival existing participants;

(d) The extent to which the regional innovation cluster is likely to stimulate innovation and have a positive effect on regional economic growth and development;

(e) The capacity of participants in the regional innovation cluster to access, or contribute to, a well-trained workforce;

(f) The ability of participants in the regional innovation cluster to attract additional funds to support the cluster with non-Federal funds; and

(g) The likelihood that participants in the regional innovation cluster will be able to sustain activities after the grant expires.

§ 312.11 Application evaluation and selection criteria.

(a) EDA will evaluate and select complete applications in accordance with the evaluation criteria, funding priority considerations, availability of funding, competitiveness of the application, and requirements set forth in section 27(b) of Stevenson-Wydler, the FFO, and other applicable Federal statutes and regulations. All awards are subject to the availability of funds.

(b) EDA will endeavor to notify applicants as soon as practicable regarding whether their applications are selected for funding.

(c) Stevenson-Wydler does not require nor does EDA provide an appeal process for denial of applications for EDA investment assistance.

§ 312.12 General terms and conditions for investment assistance.

RIS Program grants are subject to all requirements contained in part 302 of this chapter, except §§ 302.2, 302.3, 302.9, 302.10, and 302.17.

Subpart C—Regional Innovation Research and Information Program [Reserved]
§§ 312.13-312.17 [Reserved]
Dated: January 3, 2017. Roy K.J. Williams, Assistant Secretary for Economic Development.
[FR Doc. 2017-00116 Filed 1-10-17; 8:45 am] BILLING CODE 3510-24-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8181; Directorate Identifier 2016-NM-002-AD; Amendment 39-18765; AD 2016-26-07] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the nose wheel well is subject to widespread fatigue damage (WFD). This AD requires modification, inspections, and corrective actions of the nose wheel body structure. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective February 15, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 15, 2017.

ADDRESSES:

For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; Internet: https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8181.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8181; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The NPRM published in the Federal Register on July 28, 2016 (81 FR 49572) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH indicating that the nose wheel well is subject to WFD. The NPRM proposed to require modification of the nose wheel body structure; a detailed inspection of the nose wheel body structure for any cracking; a surface HFEC or an open hole HFEC inspection of the vertical beam outer chord and web for any cracking; and all applicable related investigative actions including repetitive inspections, and other specified and corrective actions. We are issuing this AD to detect and correct fatigue cracking in the nose wheel well structure; such cracking could adversely affect the structural integrity of the airplane.

Comments

We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Boeing and United Airlines supported the NPRM.

Conclusion

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

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

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

Since the NPRM was Issued

Since the NPRM was issued, we have updated the AD with Boeing's new contact information.

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015. The service information describes procedures for modification of the nose wheel body structure; a detailed inspection of the nose wheel body structure for any cracking; a web surface HFEC and an open hole HFEC inspection of the vertical beam outer chord for any cracking; and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 107 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Modification 408 work-hours × $85 per hour = $34,680 $15,743 $50,423 $5,395,261. Part 2 detailed inspection 140 work-hours × $85 per hour = $11,900 per inspection cycle $0 $11,900 per inspection cycle $1,273,300 per inspection cycle. Surface HFEC inspection 4 work-hours × $85 per hour = $340 per inspection cycle $0 $340 per inspection cycle Up to $36,380 per inspection cycle. Open hole HFEC inspection 4 work-hours × $85 per hour = $340 per inspection cycle $0 $340 per inspection cycle Up to $36,380 per inspection cycle.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-26-07 The Boeing Company: Amendment 39-18765; Docket No. FAA-2016-8181; Directorate Identifier 2016-NM-002-AD. (a) Effective Date

    This AD is effective February 15, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder indicating that the nose wheel well is subject to widespread fatigue damage. We are issuing this AD to detect and correct fatigue cracking in the nose wheel well structure; such cracking could adversely affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Modification for Groups 1 and 4 Airplanes

    For groups 1 and 4 airplanes as identified in Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015: Except as required by paragraph (j)(1) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, modify the nose wheel body structure, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (h) Inspection for Groups 1 and 4 Airplanes

    For groups 1 and 4 airplanes on which the actions of paragraph (g) have been done: Except as required by paragraph (j)(1) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, do a detailed inspection of the nose wheel body structure for any cracking; do a surface high frequency eddy current inspection (HFEC) or an open hole HFEC inspection of the vertical beam outer chord and web for any cracking; and do all applicable related investigative, other specified actions, and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015; except as required by paragraph (j)(2) of this AD. Do all applicable related investigative actions, other specified actions, and corrective actions before further flight. Repeat the detailed inspection of the nose wheel body structure, and either the surface HFEC or the open hole HFEC inspection of the vertical beam outer chord, thereafter, at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (i) Inspection for Groups 2, 3, 5 and 6 Airplanes

    For groups 2, 3, 5 and 6 airplanes identified in Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015: Except as required by paragraph (j)(1) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, do a detailed inspection of the nose wheel well body structure for any cracking, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015; except as required by paragraph (j)(2) of this AD. Do all related investigative and corrective actions before further flight. Repeat the detailed inspection thereafter at the applicable intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (j) Exceptions to the Service Information

    (1) Where Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) If any crack is found during any inspection required by this AD, and Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015, specifies to contact Boeing for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) Except as required by paragraph (j)(2) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(4)(i) and (k)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or sub-step is labeled “RC Exempt,” then the RC requirement is removed from that step or sub-step. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (l) Related Information

    For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    (m) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 747-53A2887, dated December 2, 2015.

    (ii) Reserved.

    (3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; Internet: https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on December 15, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31187 Filed 1-10-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6428; Directorate Identifier 2015-NM-119-AD; Amendment 39-18764; AD 2016-26-06] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD was prompted by reports indicating that certain wing side-of-body upper stringer fittings have been installed with faying surface mismatch beyond the allowed machining tolerance. This AD requires inspections of certain stringer fittings, replacement if necessary, and replacement of certain fasteners. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective February 15, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 15, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6428.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6428; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Allen Rauschendorfer, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6487; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on May 11, 2016 (81 FR 29206) (“the NPRM”). The NPRM was prompted by reports indicating that certain wing side-of-body upper stringer fittings have been installed with faying surface mismatch beyond the allowed machining tolerance. The NPRM proposed to require inspection of certain stringer fittings for faying surface mismatch common to the side-of-body rib chord, replacement if necessary, and replacement of the clearance fit fasteners common to the side-of-body fittings and upper side-of-body rib chord with tapered sleeve bolts. We are issuing this AD to prevent an unacceptable reduction of the fatigue life in the upper side-of-body rib chord. Associated fatigue cracks can reduce the structural capability of the upper side-of-body t-chord to a point where it cannot sustain limit load, which could adversely affect the structural integrity of the airplane.

    Comments

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

    Request To Reference Revised Service Information

    United Airlines (UA) and All Nippon Airways (ANA) asked that we revise the NPRM to reference Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 002, because Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, is currently being revised by Boeing. UA and ANA added that by including the revised service information for accomplishing the specified actions, requests for alternative methods of compliance (AMOCs) will be reduced.

    We do not agree because the revised service information is not yet released. In an AD, we cannot refer to service information that does not exist because doing so violates Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference in rules. To allow operators to use service information issued after publication of an AD, either we must supersede the AD to reference specific service information, or operators must request approval to use the new service information as an AMOC for the AD under the provisions of paragraph (j) of this AD. We consider addressing the unsafe condition as soon as possible a necessity. We might consider issuing a global AMOC if revised service information is approved. We have not changed this AD in this regard.

    Request for Clarification of the Reason for the AD

    Boeing asked that we clarify that the proposed AD was prompted by reports indicating that the wing side-of-body stringer fittings that were installed with a faying surface mismatch beyond allowed tolerances were the upper stringer fittings.

    We agree that clarification of the language describing what prompted the AD is necessary. We have changed the SUMMARY section of this final rule, as well as paragraph (e) of this AD, to include “upper” before “stringer fittings.”

    Request for Clarification of Certain Language in the Discussion Section

    Boeing asked that we clarify the Discussion section of the NPRM, which stated that the faying surface mismatch produces a gouge. Boeing requested that we revise this wording to indicate that a gouge produced from a faying surface mismatch is a possibility, not a certainty.

    We do not agree that the description in the Discussion section of the NPRM is inaccurate, because excessive cutter mismatch will produce a gouge in the mating surface eventually. In addition, the Discussion section of NPRMs is not fully repeated in final rules. Therefore, we have not changed this AD in this regard.

    Request for Clarification of Corrective Actions

    Boeing asked that we clarify the description of the corrective actions in the “Related Service Information under 1 CFR part 51” section of the NPRM by distinguishing certain conditions associated with the various corrective actions.

    We agree that clarification of the language is necessary. The “Related Service Information under 1 CFR part 51” section in an AD simply describes the various actions in the service information; it does not describe the detailed requirements with specific corrective actions for specific inspection findings. Therefore, we have changed that section in this final rule to simply list the different actions provided in Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015.

    Request for Clarification of Certain Language in FAA's Determination Section

    Boeing asked that the word “other” be removed from the “FAA's Determination” section of the NPRM, which specifies that the unsafe condition “is likely to exist or develop in other products of the same type design.” Boeing stated that the unsafe condition resulted from a quality escapement applicable to specific line numbers, and therefore is not likely to develop in other products of the same type design (i.e., the entire 787-8 fleet).

    We do not agree to remove the word “other” from the specified sentence. In 14 CFR 39.5, which defines the reason for issuing ADs, it states that an AD addresses “a product” when the unsafe condition is likely to exist or develop in “other products” of the same type design. The product addressed by an AD refers to the airplane(s) associated with the incident or specific findings that prompted the AD. In this case, the “other products” extends to Model 787-8 airplanes that are identified in paragraph (c) of this AD—that is, airplanes identified in Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015—not the entire fleet. We have not changed this AD in this regard.

    Request for Clarification of Compliance Time

    Boeing asked that we change the compliance time wording in paragraph (g) of the proposed AD for clarification by referring to Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, instead of specifying the actual compliance time.

    We do not agree with the request. Paragraph (g) of the proposed AD (which is retained in this final rule) provides the compliance time (before the accumulation of 18,000 total flight cycles, or within 13 years after the effective date of this AD, whichever occurs first) because the Accomplishment Instructions of the service information do not provide a compliance time for the inspection. We have not changed this AD regarding this issue.

    Request for Clarification of Type of Inspections and Applicable Corrective Actions

    Boeing asked that we clarify the description of the inspections specified in paragraphs (g)(1), (g)(2), and (g)(3) of the proposed AD as follows: (1) Do a detailed inspection for a machine mismatch condition of the stringer 1 fitting faying surface; (2) Do a detailed inspection of the faying surface of the aluminum T-chord common to stringer 1 fitting for fretting damage; and (3) Do an eddy current inspection for cracking of the fastener holes common to stringer fittings 1 and 5 through 11. Boeing stated that this will more closely match the information and sequence of the inspections specified in the referenced service information.

    We agree with the commenter's request to clarify the inspection language specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, for the reasons provided. We have clarified those paragraphs accordingly.

    Boeing asked that we revise paragraph (h) of the proposed AD to clarify the corrective actions. The commenter defined four corrective actions (which are also defined in the service information).

    We agree with the commenter's request in part. We do not agree to clarify the corrective actions because the actions described by the commenter are for the inspections required by paragraph (g) of this AD, and are clearly specified in Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015. Those corrective actions are identified in paragraph (g) of this AD as, simply, “corrective actions,” and are further defined by reference to Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015. However, we do agree to change the title of paragraph (h) of this AD to specify “Modification, Inspection, and Repair” to encompass the requirements specified in paragraph (h) of this AD.

    Request for Clarification of RC Steps

    To ensure that all provisions within the RC steps for contacting Boeing are captured, Boeing requested that we revise paragraph (i) of the proposed AD to refer to repair of the “applicable condition” instead of just “cracking.”

    We do not agree with the commenter's request. Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, specifies contacting Boeing if there is a crack; corrective actions for other discrepancies are provided within the service information.

    Boeing also asked that we add the following exception in paragraph (i) of the proposed AD:

    Additionally, where Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    We do not agree to include the compliance time exception. As explained previously, the compliance times in this AD are defined using specific times instead of referring to the service information. Therefore, there are no exceptions to the service information regarding the compliance times in this AD. We have not changed this AD regarding this issue.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015. The service information describes procedures for inspection of the left and right hand side stringer 1 fittings for faying surface mismatch common to the side-of-body rib chord, replacement of the stringer 1 fitting, and removal and replacement of the clearance fit fasteners common to the side-of-body fittings and upper side-of-body rib chord with tapered sleeve bolts from stringer 5 to stringer 11. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 5 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspections and modification 144 work-hours × $85 per hour = $12,240 $100,079 $112,319 $561,595

    We estimate the following costs to do any necessary corrective action for fretting damage or cutter mismatch based on the results of the inspection. We have no way of determining the number of aircraft that might need these corrective actions:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Repair for fretting damage or cutter mismatch 9 work-hours × $85 per hour = $765 $0 $765

    We have received no definitive data that enables us to provide cost estimates for the crack repair specified in this AD.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-26-06 The Boeing Company: Amendment 39-18764; Docket No. FAA-2016-6428; Directorate Identifier 2015-NM-119-AD. (a) Effective Date

    This AD is effective February 15, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Unsafe Condition

    This AD was prompted by reports indicating that certain wing side-of-body upper stringer fittings have been installed with faying surface mismatch beyond the allowed machining tolerance. We are issuing this AD to prevent an unacceptable reduction of the fatigue life in the upper side-of-body rib chord. Associated fatigue cracks can reduce the structural capability of the upper side-of-body t-chord to a point where it cannot sustain limit load, which could adversely affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Inspection and Corrective Actions

    Before the accumulation of 18,000 total flight cycles, or within 13 years after the effective date of this AD, whichever occurs first, do the inspections specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, and all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, except as required by paragraph (i) of this AD. Do all applicable corrective actions before further flight.

    (1) Do a detailed inspection for a machine mismatch condition of the stringer 1 fitting faying surface.

    (2) Do a detailed inspection of the faying surface of the aluminum T-chord common to the stringer 1 fitting for fretting damage.

    (3) Do an eddy current inspection for cracking of the fastener holes common to stringer fitting 1 and stringer fittings 5 through 11.

    (h) Modification, Inspection, and Repair

    Concurrently with accomplishment of the requirements of paragraph (g) of this AD: Modify the stringer fitting fasteners, and do an eddy current inspection for cracking of the fastener holes, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015. If any crack is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (i) Exception to Service Information Specifications

    Where Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015, specifies to contact Boeing for repair of cracking: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) Except as required by paragraph (i) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) apply.

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

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

    (k) Related Information

    For more information about this AD, contact Allen Rauschendorfer, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6487; fax: 425-917-6590; email: [email protected]

    (l) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin B787-81205-SB570018-00, Issue 001, dated July 1, 2015.

    (ii) Reserved.

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

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

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

    Issued in Renton, Washington, on December 15, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31188 Filed 1-10-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9113; Directorate Identifier 2016-NM-042-AD; Amendment 39-18772; AD 2017-01-05] RIN 2120-AA64 Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN 235-200, and CN-235-300 airplanes. This AD was prompted by reports of cracks in certain areas of the rear fuselage. This AD requires repetitive borescope and detailed visual inspections of the rear fuselage lateral beam and its external area, and repair if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective February 15, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publications listed in this AD as of February 15, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus Defence and Space, Services/Engineering Support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone +34 91 585 55 84; fax +34 91 585 31 27; email [email protected] You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes. The NPRM published in the Federal Register on September 29, 2016 (81 FR 66872). The NPRM was prompted by reports of cracks in certain areas of the rear fuselage. The NPRM proposed to require repetitive borescope and detailed visual inspections of the rear fuselage lateral beam and its external area, and repair if necessary. We are issuing this AD to address the unsafe condition on these products.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Airworthiness Directive 2016-0064, dated April 4, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes. The MCAI states:

    During a scheduled visual inspection accomplished in accordance with the CN-235 Maintenance Review Board (MRB) Document task 53.160, cracking was found, affecting the rear fuselage lateral beam, both left hand (LH) and right hand (RH) sides. The investigation to determine the cause of these cracks is on-going.

    This condition, if not detected and corrected, could lead to failure of the affected components, resulting in reduced structural integrity of the fuselage.

    To address this potential unsafe condition, Airbus Defence and Space (D&S) issued Alert Operator Transmission (AOT) AOT-CN235-53-0002 Revision 1 (hereafter referred to as `the AOT' in this AD) to provide inspection instructions.

    For the reasons described above, this [EASA] AD requires repetitive inspections [special detailed inspection with a borescope and detailed visual] of the rear fuselage lateral beam and its external area and, depending on findings, [cracks or discrepancies], accomplishment of applicable corrective action(s) [repair].

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113.

    Comments

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

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Airbus Defense and Space Alert Operators Transmission (AOT), AOT-CN235-53-0002, Revision 1, dated September 17, 2015. This service information describes repetitive borescope and detailed visual inspection requirements for the rear fuselage lateral beam and its external area. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 13 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection 2 work-hours × $85 per hour = $170 $0 $170 $2,210

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-01-05 Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.): Amendment 39-18772; Docket No. FAA-2016-9113; Directorate Identifier 2016-NM-042-AD. (a) Effective Date

    This AD is effective February 15, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes, certificated in any category, all manufacturer serial numbers.

    (d) Subject

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

    (e) Reason

    This AD was prompted by reports of cracks in certain areas of the rear fuselage. We are issuing this AD to detect and correct cracks in the rear fuselage lateral beam and its external area; such cracking could lead to failure of the affected components, and result in reduced structural integrity of the fuselage.

    (f) Compliance

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

    (g) Repetitive Inspections on the Fuselage Lateral Beam

    Within the compliance time specified in table 1 to paragraph (g) of this AD, and thereafter at intervals not to exceed the values specified in table 2 to paragraph (g) of this AD, as applicable to airplane model, accomplish the inspections as specified in paragraphs (g)(1) and (g)(2) of this AD, in accordance with the instructions of Airbus Defense and Space Alert Operators Transmission (AOT) AOT-CN235-53-0002, Revision 1, dated September 17, 2015.

    (1) A special detailed inspection for cracks and other discrepancies with a borescope of the rear fuselage lateral beam between frame (FR) 31 and FR 45, left-hand (LH) and right-hand (RH) side.

    (2) A detailed visual inspection for cracks and other discrepancies of the external area of the rear fuselage lateral beam, LH and RH side.

    Table 1 to Paragraph (g) of This AD—Initial Inspection Compliance Time A or B, whichever occurs later A Before exceeding 15,000 flight cycles or 15,000 flight hours, whichever occurs first since airplane first flight. B Within 50 flight cycles or 50 flight hours, whichever occurs first after the effective date of this AD. Table 2 to Paragraph (g) of This AD—Repetitive Inspection Intervals Airplane models Repetitive interval
  • (whichever occurs first, flight cycles or flight hours)
  • Model CN-235 and CN-235-100 airplanes 3,600 flight cycles or 3,100 flight hours. Model CN-235-200 airplanes 3,600 flight cycles or 2,800 flight hours. Model CN-235-300 airplanes 15,000 flight cycles or 15,000 flight hours.
    (h) Repair

    If any crack or discrepancy is found during any inspection required by paragraph (g) of this AD: Before further flight, contact and obtain repair instructions from Airbus Defense and Space S.A. in accordance with paragraph (k)(2) of this AD, and within the compliance time indicated in those instructions, accomplish the repair accordingly, including any post-repair maintenance task(s), as applicable.

    (i) Continued Inspection of Repaired Areas

    Accomplishment of a repair on an airplane, as required by paragraph (h) of this AD, does not constitute terminating action for the repetitive inspections as required by paragraph (g) of this AD for that airplane, unless specified in the applicable repair instructions obtained in paragraph (h).

    (j) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD, using Airbus Defense and Space AOT AOT-CN235-53-0002, dated August 28, 2015.

    (k) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus Defense and Space S.A.'s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0064, dated April 4, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113.

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

    (m) Material Incorporated by Reference

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

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

    (i) Airbus Defense and Space Alert Operators Transmission (AOT), AOT-CN235-53-0002, Revision 1, dated September 17, 2015.

    (ii) Reserved.

    (3) For service information identified in this AD, contact EADS-CASA, Military Transport Aircraft Division (MTAD), Integrated Customer Services (ICS), Technical Services, Avenida de Aragón 404, 28022 Madrid, Spain; telephone +34 91 585 55 84; fax +34 91 585 55 05; email [email protected]; Internet http://www.eads.net.

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

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

    Issued in Renton, Washington, on December 27, 2016. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31958 Filed 1-10-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2013-1015; Directorate Identifier 2013-NE-37-AD; Amendment 39-18768; AD 2017-01-01] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are superseding airworthiness directive (AD) 2014-05-25 for all Rolls-Royce plc (RR) RB211-Trent 970-84, RB211-Trent 970B-84, RB211-Trent 972-84, RB211-Trent 972B-84, RB211-Trent 977-84, RB211-Trent 977B-84, and RB211-Trent 980-84 turbofan engines. AD 2014-05-25 required inspections of the low-pressure turbine (LPT) exhaust case and support assembly or tail bearing housing (TBH) to detect cracks or damage. This AD modifies the inspection schedule for the affected engines and adds an optional terminating action. This AD was prompted by RR performing additional analysis of inspection results and determining that the existing inspections need to be modified. We are issuing this AD to correct the unsafe condition on these products.

    DATES:

    This AD is effective January 26, 2017.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of January 26, 2017.

    We must receive any comments on this AD by February 27, 2017.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

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

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-245418, or email: http://www.rolls-royce.com/contact/civil_team.jsp. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-1015.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-1015; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information, regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2013-1015; Directorate Identifier 2013-NE-37-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

    Discussion

    On February 27, 2014, we issued AD 2014-05-25, Amendment 39-17798 (79 FR 15665, March 21, 2014), “AD 2014-05-25,” for all RR RB211-Trent 970-84, RB211-Trent 970B-84, RB211-Trent 972-84, RB211-Trent 972B-84, RB211-Trent 977-84, RB211-Trent 977B-84, and RB211-Trent 980-84 turbofan engines. AD 2014-05-25 required inspections of the LPT exhaust case and support assembly or TBH to detect cracks or damage. AD 2014-05-25 resulted from an RR structural re-analysis indicating that the TBH may not retain full limit load capability in all fail-safe conditions. We issued AD 2014-05-25 to prevent failure of the TBH, resulting in damage to the engine and to the airplane.

    Actions Since AD 2014-05-25 Was Issued

    Since we issued AD 2014-05-25, RR has analyzed inspection results and determined that the existing inspections need to be modified. Also since we issued AD 2014-05-25, the European Aviation Safety Agency (EASA) has issued AD 2016-0193, dated September 30, 2016, which modifies the inspection schedule for the affected engines and adds an optional terminating action.

    Related Service Information Under 1 CFR Part 51

    RR has issued Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AG971, Revision 2, dated May 5, 2016; Alert NMSB RB.211-72-AH154, Revision 5, dated May 5, 2016; Alert NMSB RB.211-72-AJ101, dated May 5, 2016; and Service Bulletin (SB) RB.211-72-J055, dated March 22, 2016. RR Alert NMSB RB.211-72-AG971 describes procedures for on-wing or in-shop inspection of the TBH mount lug run-outs. RR Alert NMSB RB.211-72-AH154 describes procedures for an on-wing or in-shop inspection of a pre-mod 72-J024 TBH. RR Alert NMSB RB.211-72-AJ101 describes procedures for on-wing or in-shop inspection of a post-mod 72-J024 TBH. RR SB RB.211-72-J055 describes procedures for modifying the engine by introducing a revised TBH. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Other Related Service Information

    RR has also issued Technical Variance (TV) No. 124801, Issue 2, dated July 4, 2012; TV No. 124851, Issue 2, dated July 4, 2012; Repeater TV No. 132043, Issue 1, dated March 25, 2013; and Repeater TV No. 132217, Issue 5, dated May 23, 2013. RR TV No. 124801 and RR TV No. 124851 provide details on the fluorescent penetrant inspection of the TBH mount lug run-outs. RR Repeater TV No. 132043 includes details of the inspection of the mount lug forging LE areas. RR Repeater TV No. 132217 makes the removal and installation of the exhaust nozzle and forward and aft exhaust plugs optional tasks.

    FAA's Determination

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

    AD Requirements

    This AD modifies the inspection schedule for the affected engines and adds an optional terminating action.

    FAA's Justification and Determination of the Effective Date

    No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

    Costs of Compliance

    We estimate that this AD affects 0 engines installed on airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection of the TBH 8 work-hours × $85 per hour = $680 $0 $680 per inspection cycle $0
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2014-05-25, Amendment 39-17798 (79 FR 15665, March 21, 2014), and adding the following new AD: 2017-01-01 Rolls-Royce plc: Amendment 39-18768; Docket No. FAA-2013-1015; Directorate Identifier 2013-NE-37-AD. (a) Effective Date

    This AD is effective January 26, 2017.

    (b) Affected ADs

    This AD replaces AD 2014-05-25, Amendment 39-17798 (79 FR 15665, March 21, 2014).

    (c) Applicability

    This AD applies to all Rolls-Royce plc (RR) RB211-Trent 970-84, RB211-Trent 970B-84, RB211-Trent 972-84, RB211-Trent 972B-84, RB211-Trent 977-84, RB211-Trent 977B-84, and RB211-Trent 980-84 turbofan engines.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7200, Engine (Turbine/Turboprop).

    (e) Unsafe Condition

    This AD was prompted by RR performing additional analysis of inspection results and determining that the existing inspections need to be modified. We are issuing this AD to prevent failure of the tail bearing housing (TBH), resulting in damage to the engine and to the airplane.

    (f) Compliance

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

    (1) Within the compliance times and using the service information specified in Table 1 to paragraph (f) of this AD, accomplish on-wing inspections of the TBH features using the following instructions, as applicable.

    (i) If during any on-wing inspection of the TBH mount lug run-outs done using the Accomplishment Instructions, paragraph 3.A.(1), of RR Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AG971, Revision 2, dated May 5, 2016, any cracks less than or equal to 2 mm in length are found, remove the engine from service within 10 flight cycles (FCs). If any cracks greater than 2 mm are found, remove the engine from service before further flight.

    (ii) If during any on-wing inspection of the TBH mount lug run-outs done using the Accomplishment Instructions, paragraph 3.A.(2), of RR Alert NMSB RB.211-72-AG971, Revision 2, dated May 5, 2016, any crack indications resulting in an inspection signal with an amplitude of 50% full screen height or more are found, remove the engine from service before further flight.

    (iii) If during any on-wing inspection of a pre-mod 72-J024 TBH, any crack or damage is found on the TBH mount lug forging leading edge (LE) areas, re-inspect the engine or remove the engine from service in accordance with the Accomplishment Instructions, paragraph 3.A.(3)(t), of RR Alert NMSB RB.211-72-AH154, Revision 5, dated May 5, 2016.

    (iv) If during any on-wing inspection of a post-mod 72-J024 TBH, any crack is found on the TBH mount lug forging LE or cutback areas, re-inspect the engine or remove the engine from service in accordance with the Accomplishment Instructions, paragraph 3.A.(3)(t), of RR Alert NMSB RB.211-72-AJ101, dated May 5, 2016.

    (2) Within the compliance times and using the service information specified in Table 2 to paragraph (f) of this AD, peform in-shop inspections of the TBH features using the following instructions, as applicable.

    (i) If during any in-shop inspection of the TBH, any crack is found on the TBH mount lug or central male catcher run-outs, replace the TBH with a TBH eligible for installation before the engine is returned to service.

    (ii) If during any in-shop inspection of the TBH, any crack is found on the top core vanes, reject as unserviceable or repair the TBH in accordance with the Accomplishment Instructions, paragraph 3.C.(1)(f), of RR Alert NMSB RB.211-72-AG971 Revision 2, dated May 5, 2016, before the engine is returned to service.

    (iii) If during any in-shop inspection of a pre-mod 72-J024 TBH, any crack or damage is found on the TBH mount lug forging LE areas, reject as unserviceable or repair the TBH in accordance with the Accomplishment Instructions, paragraph 3.B.(2)(u)(ii), of RR Alert NMSB RB.211-72-AH154, Revision 5, dated May 5, 2016, or the Accomplishment Instructions, paragraph 3.C.(1)(f), of RR Alert NMSB RB.211-72-AG971, Revision 2, dated May 5, 2016, before the engine is returned to service.

    (iv) If during any in-shop inspection of a post-mod 72-J024 TBH, any crack is found on the TBH mount lug forging LE or cutback areas, repair the TBH in accordance with the Accomplishment Instructions, paragraph 3.B.(2)(u)(ii), of RR Alert NMSB RB.211-72-AJ101, dated May 5, 2016, or the Accomplishment Instructions, paragraph 3.C.(1)(f), of Alert NMSB RB.211-72-AG971, Revision 2, dated May 5, 2016, before the engine is returned to service.

    Table 1 to Paragraph (f)—TBH On-Wing Inspections Affected TBH P/N and feature Applicable NMSB and paragragph Alternate NMSB instructions
  • acceptable for prior compliance
  • Initial inspection Repeat
  • inspection
  • interval
  • (not to
  • exceed)
  • All—Mount Lug Run-outs RB.211-72-AG971 Revision 2, Paragraph 3.A In-shop: RB.211-72-AG971 Revision 2, Paragraph 3.B or 3.C Before exceeding 2,200 FCs since new 2,200 FCs. Pre-mod 72-J024 TBH—Mount Lug Forging LE Areas—for a TBH that has not exceeded 900 FCs since new on April 7, 2014 RB.211-72-AH154, Revision 5, Paragraph 3.A In-shop: RB.211-72-AH154, Revision 5, Paragraph 3.B., or RB.211-72-AG971 Revision 2, Paragraph 3.C Before exceeding 1,000 FCs since new 1,000 FCs. Pre-mod 72-J024 TBH—Mount Lug Forging LE Areas—for a TBH that has exceeded 900 FCs since new on April 7, 2014 RB.211-72-AH154, Revision 5, Paragraph 3.A In-shop: RB.211-72-AH154, Revision 5, Paragraph 3.B., or RB.211-72-AG971 Revision 2, Paragraph 3.C Within 100 FCs after April 7, 2014 1,000 FCs. Post-mod 72-J024 TBH—Mount Lug Forging LE and Cutback Areas RB.211-72-AJ101, Paragraph 3.A In-shop: RB.211-72-AG971, Revison 2, Paragraph 3.C, or RB.211-72-AJ101, Paragraph 3.B Before exceeding 1,000 FCs since NMSB RB.211-72-J024 embodiment 1,000 FCs.
    Table 2 to Paragraph (f)—TBH In-Shop Inspections Affected TBH P/N and feature Applicable NMSB and paragraph Alternate NMSB instructions
  • acceptable for prior compliance
  • Initial inspection Repeat
  • inspection
  • interval
  • (not to
  • exceed)
  • All—Mount Lug Run-outs RB.211-72-AG971, Revision 2, Paragraph 3 On-wing: RB.211-72-AG971 Rev 2, Paragraph 3.A., or In-shop: RB.211-72-AG971 Revision 2, Paragraph 3.C Before exceeding 2,200 flight FCs since new 2,200 FCs. All—Top Core Vanes and Central Male Catcher Run-outs RB.211-72-AG971, Revision 2, Paragraph 3.C None Before exceeding 3,800 FCs since new 3.800 FCs. Pre-mod 72-J024 TBH—Mount Lug Forging LE Areas—for a TBH which has not exceeded 900 FCs since new on April 7, 2014 RB.211-72-AH154, Revision 5, Paragraph 3.B On-wing: RB.211-72-AH154, Revision 5, Section 3.A, or In-shop: RB.211-72-AG971, Revision 2, Paragraph 3.C Before exceeding 1,000 FCs since new 1,000 FCs. Pre-mod 72-J024 TBH—Mount Lug Forging LE Areas—for a TBH which has exceeded 900 FCs since new on April 7, 2014 RB.211-72-AJ101, Paragraph 3.B On-wing: RB.211-72-AH154 Rev 5, Section 3.A, or In-shop: RB.211-72-AG971, Revision 2, Paragraph 3.C Within 100 FCs after the effective date of this AD 1,000 FCs. Post-mod 72-J024 TBH—Mount Lug Forging LE and Cutback Areas RB.211-72-AJ101, Paragraph 3.B On-wing: RB.211-72-AJ101, Section 3.A, or In-shop: RB.211-72-AG971 Rev 2, Paragraph 3.C Before exceeding 1,000 FCs since NMSB RB.211-72-J024 embodiment 1,000 FCs.
    (g) Credit For Previous Actions

    (1) If you performed inspections and corrective actions on an engine before the effective date of this AD, in accordance with earlier versions of RR Alert NMSB RB.211-72-AG971, Revision 2, dated May 5, 2016, or RR Alert NMSB RB.211-72-AH154, Revision 5, dated May 5, 2016, you met the requirements of paragraph (f)(1) or (2) of this AD, as applicable.

    (2) If, on or before April 7, 2014, you performed the inspections and corrective actions required by paragraphs (f)(1) and (2) of this AD using RR Technical Variance (TV) No. 124801, Issue 2, dated July 4, 2012 or earlier versions; or RR TV No. 124851, Issue 2, dated July 4, 2012 or earlier versions; you met the requirements for a mount lug run-out inspection.

    (3) If, on or before April 7, 2014, you performed the inspections and corrective actions required by paragraphs (f)(1) and (2) of this AD using RR Repeater TV No. 132043, Issue 1, dated March 25, 2013 or earlier versions; or using RR Repeater TV No. 132217, Issue 5, dated May 23, 2013 or earlier versions; you met the requirements for the mount lug forging LE inspections of this AD.

    (h) Optional Terminating Action

    (1) Accomplishment of corrective actions required by paragraphs (f)(1) and (2) of this AD does not constitute terminating action for the repetitive inspections required by this AD.

    (2) Modification of an engine in accordance with the instructions of RR SB RB.211-72-J055, dated March 22, 2016, constitutes terminating action for the repetitive inspections required by paragraphs (f)(1) and (2) of this AD for that engine, provided that, following this modification, no affected TBH is installed on that engine.

    (i) Alternative Methods of Compliance (AMOCs)

    The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to: [email protected]

    (j) Related Information

    (1) For more information about this AD, contact Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email: [email protected]

    (2) Refer to MCAI European Aviation Safety Agency AD 2016-0193, dated September 30, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2013-1015.

    (3) RR TV No. 124801, Issue 2, dated July 4, 2012; RR TV No. 124851, Issue 2, dated July 4, 2012, Repeater TV No. 132043, Issue 1, dated March 25, 2013, and Repeater TV No. 132217, Issue 5, dated May 23, 2013; which are not incorporated by reference in this AD, can be obtained from RR using the contact information in paragraph (k)(3) of this AD.

    (k) Material Incorporated by Reference

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

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

    (i) Rolls-Royce plc (RR) Service Bulletin RB.211-72-J055, dated March 22, 2016.

    (ii) RR Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AJ101, dated May 5, 2016;

    (iii) RR Alert NMSB RB.211-72-AG971, Revision 2, dated May 5, 2016; and

    (iv) RR Alert NMSB RB.211-72-AH154, Revision 5, dated May 5, 2016.

    (3) For RR service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-245418, or email: http://www.rolls-royce.com/contact/civil_team.jsp.

    (4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7125.

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

    Issued in Burlington, Massachusetts, on December 22, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2017-00398 Filed 1-10-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 61, 68, and 91 [Docket No.: FAA-2016-9157; Amdt. Nos. 61-140, 68-1, and 91-347] RIN 2120-AK96 Alternative Pilot Physical Examination and Education Requirements AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This final rule will allow airmen to exercise pilot in command privileges in certain aircraft without holding a current medical certificate. This rule, which conforms FAA regulations with legislation, is intended to ensure that pilots who complete a medical education course, meet certain medical requirements, and comply with aircraft and operating restrictions are allowed to act as pilot in command for most part 91 operations.

    DATES:

    This rule is effective on May 1, 2017.

    Docket: Background documents may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    John Linsenmeyer, General Aviation and Commercial Division, AFS-800, Flight Standards Service, Federal Aviation Administration, 55 M Street SE., 8th floor, Washington, DC 20003; telephone: (202) 267-1100; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Executive Summary

    The Federal Aviation Administration (FAA) Extension, Safety, and Security Act of 2016 (Pub. L. 114-190) (FESSA) was enacted on July 15, 2016. Section 2307 of FESSA, Medical Certification of Certain Small Aircraft Pilots, directed the FAA to “issue or revise regulations to ensure that an individual may operate as pilot in command of a covered aircraft” without having to undergo the medical certification process under 14 CFR part 67 if the pilot and aircraft meet certain prescribed conditions as outlined in FESSA. The FAA is amending parts 61 and 91 and creating a new part 68 to conform to this legislation.

    This final rule implements, without interpretation, the requirements of section 2307 of FESSA. This rule reiterates the provisions of section 2307 of FESSA and describes how the FAA is implementing those provisions.

    II. Legal Authority and Administrative Procedure Act A. Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.). 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 final rule is promulgated under the authority described in Subtitle VII, Part A, Subpart iii, section 44701, General Requirements; section 44702, Issuance of Certificates; and section 44703, Airman Certificates. Under these sections, the FAA is charged with prescribing regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. The FAA is also authorized to issue certificates, including airman certificates and medical certificates, to qualified individuals. This rule is within the scope of that authority.

    This rule is further promulgated under section 2307 of Public Law 114-190, the FAA Extension, Safety and Security Act of 2016. Section 2307, Medical Certification of Certain Small Aircraft Pilots, provides the requirements and terms of this rule.

    B. Administrative Procedure Act

    The Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) requires an agency to conduct notice and comment rulemaking except when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. The FAA finds that notice and the opportunity to comment are unnecessary and contrary to the public interest in this action because the FAA has simply adopted the statutory language without interpretation and is implementing that language directly into the regulations. The FAA further finds that delaying implementation of this rule to allow for notice and comment would be contrary to the public interest as to do so would delay the new privileges Congress sought to provide.

    III. Background A. Current Situation

    In general, a person may serve as a required pilot flightcrew member of an aircraft only if that person holds the appropriate medical certificate.1 14 CFR 61.3(c)(1). There are a few exceptions to this requirement, such as for pilots flying gliders, balloons, and/or light-sport aircraft. 14 CFR 61.3(c)(2).

    1 When referring to a “medical certificate” in this final rule, the FAA is referring only to a current and valid first-, second-, or third-class FAA airman medical certificate issued under 14 CFR part 67, which may have been issued under an authorization for special issuance (“special issuance medical certificate”).

    A medical certificate provides validation that a person meets FAA medical certification requirements. Title 14, Code of Federal Regulations (14 CFR) part 67 provides for the issuance of three classes of medical certificates—first-, second-, and third-class medical certificates.2 At minimum, a third-class medical certificate is required for operations requiring a private pilot certificate, a recreational pilot certificate, a flight instructor certificate (when acting as pilot in command or serving as a required flight crewmember in operations other than glider or balloon), or a student pilot certificate. An applicant who is found to meet the appropriate medical standards,3 based on a medical examination and an evaluation of the applicant's history and condition, is entitled to a medical certificate without restriction or limitation.

    2 In most cases, a first-class medical certificate is required for operations requiring an airline transport pilot (ATP) certificate. At minimum, a second-class medical certificate is required for operations requiring a commercial pilot certificate. The requirement to hold a first or second class medical certificate when exercising the privileges of a commercial or airline transport pilot certificate is not changed by this rulemaking.

    3 Part 67 contains the requirements for medical standards and certification.

    A person obtains a medical certificate by completing an online application (FAA form 8500-8, Application for Medical Certificate) using the FAA's medical certificate application tool, MedXPress, on the FAA Web site and undergoing a physical examination with an FAA-designated Aviation Medical Examiner (AME). The majority of applicants are issued an unrestricted medical certificate by an AME. An AME may defer an applicant to the FAA for further review (which may include further examination by a specialist physician) when there is information indicating the existence or potential of an adverse medical finding that may warrant further FAA medical evaluation and oversight. Title 14 CFR 61.23 specifies the duration of validity for unrestricted medical certificates based on the applicant's age on the date of examination. For third-class medical certificates, certificates for airmen under age 40 are valid for 5 years and for airmen age 40 and over are valid for 2 years.

    B. Section 2307, Medical Certification of Certain Small Aircraft Pilots

    Section 2307, Medical Certification of Certain Small Aircraft Pilots, provides that, within 180 days of enactment of Public Law 114-190, the FAA Extension, Safety and Security Act of 2016, the Administrator of the FAA shall issue or revise regulations to ensure that an individual may operate as pilot in command of a covered aircraft if certain provisions stipulated in section 2307 of FESSA are met. Those provisions, discussed further below, include requirements for the person to:

    • Possess a valid driver's license;

    • Have held a medical certificate at any time after July 15, 2006;

    • Have not had the most recently held medical certificate revoked, suspended, or withdrawn;

    • Have not had the most recent application for airman medical certification completed and denied;

    • Have taken a medical education course within the past 24 calendar months;

    • Have completed a comprehensive medical examination within the past 48 months;

    • Be under the care of a physician for certain medical conditions;

    • Have been found eligible for special issuance of a medical certificate for certain specified mental health, neurological, or cardiovascular conditions;

    • Consent to a National Driver Register check;

    • Fly only certain small aircraft, at a limited altitude and speed, and only within the United States;

    • Not fly for compensation or hire.

    The FAA notes that the use of this rule by any eligible pilot is voluntary. Persons may elect to use this rule or may continue to operate using any valid FAA medical certificate.4 The FAA recognizes that a pilot who holds a medical certificate may choose to exercise this rule and not to exercise the privileges of his or her medical certificate. Even though a pilot chooses not to exercise the privileges of the medical certificate for a particular operation, the FAA retains the authority to pursue enforcement action to suspend or revoke that medical certificate where there is evidence that the pilot does not meet the FAA's medical certification standards. 49 U.S.C. 44709(a).

    4 Section 2307(k) states the provisions and requirements of the section do not apply to anyone who elects to operate under § 61.23(b) and (c)—which govern operations not requiring a medical certificate and operations requiring either a medical certificate or U.S. driver's license, respectively. Because this final rule amends § 61.23(c) to include the relief outlined in FESSA, the reference to § 61.23(c) in section 2307(k) applies to that section as it was written at the time the legislation was enacted.

    IV. Pilot Requirements of Section 2307 of FESSA

    Section 2307(a)(1) through (7) contains several requirements the pilot must meet in order to act as pilot-in-command (PIC) of a covered aircraft. The FAA is implementing those requirements by revising § 61.23(c)(1) and by adding new § 61.23(c)(3).5 The following sections discuss the pilot requirements of section 2307 and the FAA's implementation of those requirements in more detail.

    5 Section 61.23(c) currently addresses operations that may be conducted using either a medical certificate or a U.S. driver's license.

    A. Applicability of Section 2307

    Section 2307(a) states that an “individual” may operate as PIC of a covered aircraft in accordance with the requirements of FESSA. Thus, the privileges of this rule are not limited to persons holding a private pilot certificate; it also applies to persons exercising student pilot, recreational pilot, and private pilot privileges and to persons exercising flight instructor privileges when acting as PIC.6 Accordingly, §§ 61.3 and 61.23 indicate that persons exercising the privileges of these certificates may act as PIC of an operation conducted under the conditions and limitations set forth in § 61.113.7 However, persons exercising privileges of a student pilot or recreational pilot certificate must continue to operate consistent with the limitations on their certificate.8 The FAA is therefore adding new §§ 61.89(d) and 61.101(k) to make clear that while individuals exercising the privileges of a student pilot or recreational pilot certificates may operate under § 61.113(i), they must comply with the limitations in §§ 61.89 and 61.101, as applicable, when those limitations conflict with § 61.113(i). Individuals holding a private pilot certificate issued on the basis of a foreign pilot license under § 61.75 may also operate under this rule, provided they meet the requirements of §§ 61.23(c)(3) and 61.113(i). However, an individual who is applying for a U.S. private pilot certificate under § 61.75 is still required to hold a medical certificate issued under part 67 or a medical license issued by the country that issued the person's foreign pilot license.9 Section 2307 does not apply to persons exercising privileges of a commercial pilot certificate or an airline transport pilot certificate because section 2307 prohibits operations for compensation or hire.10 Persons exercising privileges of a commercial pilot or ATP certificate must continue to hold a first or second class medical certificate in accordance with § 61.23(a)(1) and (2).

    6 The FAA has found that, in conducting flight training, the PIC is not carrying passengers or property for compensation or hire, nor is acting as PIC of an aircraft for compensation or hire. Final Rule, “Pilot, Flight Instructor, Ground Instructor, and Pilot School Certification Rules,” 62 FR 16220, at 16242 (Apr. 4, 1997).

    7 Section 61.113(i) contains the operating requirements of section 2307. Section 61.23(a)(3) requires a person to hold a third class medical certificate when taking a practical test in an aircraft for a recreational pilot, private pilot, commercial pilot, or airline transport pilot certificate, or for a flight instructor certificate. Accordingly, this rule contains a conforming amendment to allow these pilots to operate under the conditions and limitations of § 61.113(i) when taking a practical test.

    8 Section 61.89 contains the general limitations of a student pilot. Section 61.101 contains the privileges and limitations for recreational pilots.

    9 Under § 61.75(b), a person who holds a foreign pilot license issued by a contracting State to the Convention on International Civil Aviation may be issued a U.S. private pilot certificate based on the foreign pilot license without any further showing of proficiency, provided the applicant meets the requirements of § 61.75. One of these requirements is to hold a medical certificate issued under part 67 or a medical license issued by the country that issued the person's foreign pilot license. 14 CFR 61.75(b)(4).

    10 The FAA notes that § 61.113 provides that certain activities conducted by a private pilot acting as PIC are excepted from the general prohibition on operations conducted for compensation or hire. These activities are listed in § 61.113(b)-(h). Although the FAA considers these activities to be operations involving compensation or hire, the compensation or hire exceptions for these operations permit these operations to be conducted under this rule.

    B. Valid Driver's License (§ 61.23(c)(1) and (c)(3))

    Section 2307(a)(1) of FESSA requires that, to be eligible to act as PIC without a medical certificate, an individual possess a valid driver's license issued by a State, territory, or possession of the United States and comply with all medical requirements or restrictions associated with that license. As with other FAA regulations, the FAA interprets “valid driver's license” to mean a current and valid U.S. driver's license. Each State will determine what, if any, medical requirements or restrictions are necessary and associated with each driver's license issued.

    The FAA is implementing section 2307(a)(1) by revising § 61.23(c)(1) and by adding new § 61.23(c)(3). The FAA is adding paragraphs (v) and (vi) to § 61.23(c)(1) to require a person exercising a student pilot certificate, recreational pilot certificate, private pilot certificate, or flight instructor certificate (while acting as the pilot in command or as a required flight crewmember) to hold and possess either a medical certificate or a driver's license issued by a State, territory, or possession of the U.S. when operating under this rule. Additionally, the FAA is adding new § 61.23(c)(3) to require a person using a U.S. driver's license to meet the requirements of § 61.23(c)(1) while operating under section 2307 of FESSA to comply with all medical requirements or restrictions associated with his or her U.S. driver's license.

    The FAA notes that, while some pilots use an official passport as a valid form of photo identification under § 61.3(a)(2), it does not meet the requirements of section 2307(a)(1) of FESSA. All pilots, including pilots who were issued U.S. private pilot certificates in accordance with § 61.75, must hold a U.S. driver's license to operate under this rule. An international driver's license or any driver's license issued by a country or territory other than the United States does not suffice to meet this requirement.

    Individuals who do not have a medical certificate and whose driver's license has been revoked or rescinded for any reason are not eligible to use this rule, unless and until the driver's license is reinstated. Any restrictions on a driver's license (e.g., corrective lenses, prosthetic aids required, daylight driving only) also apply under this rule.

    Since FESSA requires the individual to possess a driver's license, pilots are required to have the driver's license in their personal possession when operating using this rule.

    C. Medical Certificate Issued by the FAA (§ 61.23(c)(3)(i)(B))

    Section 2307(a)(2) of FESSA requires that the individual (1) hold a medical certificate issued by the FAA on the date of enactment of Public Law 114-190, (2) have held a medical certificate at any point during the 10-year period preceding the date of enactment, or (3) obtain a medical certificate after the date of enactment. Because Public Law 114-190 was signed into law on July 15, 2016,11 the FAA calculates the 10-year period preceding the date of enactment as beginning on July 15, 2006. Thus, at any point after July 14, 2006, a person must have held a medical certificate issued under part 67. The FAA is implementing this requirement in § 61.23(c)(3)(i)(B).

    11 Public Law 114-190.

    Consistent with section 2307(a)(3) of FESSA, the medical certificate required under § 61.23(c)(3)(i)(B) may have been a first-, second-, or third-class medical certificate, including a medical certificate issued under an authorization for special issuance (“special issuance medical certificate”).

    A person who has not held a medical certificate at any point after July 14, 2006, must obtain a medical certificate issued under part 67. After that medical certificate expires, that person may use, or continue to use, the alternative pilot physical examination and education requirements, provided that person meets the other conditions and limitations.

    For individuals relying on an already expired certificate, a person should use the date that his or her most recent medical certificate expired to determine whether it meets the 10-year period look-back described in FESSA. Special-issuance medical certificates are always time-limited and will explicitly state the date when the certificate expires or is no longer valid. Therefore, any special-issuance medical certificate with an expiration date on or after July 15, 2006, would meet the 10-year look-back requirement.

    Unrestricted (“regular issuance”) medical certificates do not list a specific expiration date. Therefore, persons with an unrestricted FAA medical certificate should refer to the “Date of Examination” displayed on the certificate, and then use § 61.23(d) to determine when it expired for operations requiring a third-class medical certificate.12 The expiration date is based on a person's age on the date of the examination as calculated from his or her date of birth (i.e., “under age 40” vs. “age 40 and over”). For example, a person born on January 2, 1963 would be “under age 40” if the date of examination was January 1, 2003, but would be “age 40 and over” if the examination occurred one day later on January 2, 2003. The FAA advises individuals to carefully review § 61.23(d), which specifies the duration of medical certificates.13

    12 The FAA notes that a first or second class medical certificate lapses into a third class medical certificate when it exceeds the duration period for first or second class medical certificates under § 61.23(d). For example, for a pilot under the age of 40, a first class medical certificate expires on the 12th month after the month of the date of examination shown on the medical certificate. Upon the date of expiration for a first class medical certificate, the certificate would lapse into a third class medical certificate.

    13 On July 24, 2008, the FAA published a final rule, “Modification of Certain Medical Standards and Procedures and Duration of Certain Medical Certificates,” that extended the duration of certain medical certificates (73 FR 43059). Before the 2008 final rule, first-class medical certificates had a maximum duration of 6 months, regardless of the person's age, while third-class medical certificates had a maximum duration of 3 years for individuals under age 40. With publication of the final rule, the duration of first- and third-class medical certificates for individuals under age 40 was extended to 1 year for first-class medical certificates and 5 years for third-class medical certificates. For persons over age 40, the duration of first- and third-class medical certificates remained 6 months and 2 years, respectively.

    Persons age 40 or over on the date of their examination would meet the 10-year period described in FESSA if their examination was on or after July 15, 2004. This date is based on the two-year validity period for third class medical certificates issued to persons age 40 or over. Persons under age 40 on the date of their examination would meet the 10-year period described in FESSA if their examination was on or after July 15, 2003. This date is based on the three-year validity period for third class medical certificates issued to persons under 40 years of age that was in effect prior to 2008.14

    14 Under the 2008 final rule that extended the duration of third class medical certificates for persons under the age of 40 from three years to five years, the FAA construed the extended validity period as “reviving” expired medical certificates if those certificates would have been valid under the extended period. For example, a third-class medical certificate issued in 2004 (four years before the effective date of the 2008 rule) expired in 2007. When the 2008 final rule became effective, the FAA applied the new five-year duration to the expired certificate. Thus, the medical certificate was revived and remained valid until 2009.

    Individuals operating under this rule are not required to carry or possess the expired medical certificate when operating under this rule.

    D. Requirements of a Medical Certificate (§ 61.23(c)(3)(ii) and (iii))

    Section 2307(a)(3) of FESSA requires that the most recent medical certificate issued by the FAA to the individual: (1) Indicates whether the certificate isfirst-, second-, or third-class; (2) may include authorization for special issuance; (3) may be expired; (4) cannot have been revoked or suspended; and (5) cannot have been withdrawn.

    The requirement that the medical certificate indicate whether the certificate is first-, second-, or third-class is captured in § 61.23(c)(3)(i)(B), which requires the medical certificate to have been issued under part 67.15 The FAA is implementing the remaining requirements of section 2307(a)(3) in § 61.23(c)(3)(ii) and (iii). Accordingly, § 61.23(c)(3)(ii) now states that the most recently issued medical certificate: (1) May include an authorization for special issuance; (2) may be expired; and (3) cannot have been suspended, revoked, or withdrawn.

    15 Under part 67, a person may be issued afirst-, second-, or third-class medical certificate.

    Thus, the most recently issued medical certificate, which the person must have held at any point after July 14, 2006, may have been a special issuance medical certificate and may be expired. However, it may not have been suspended or revoked, or in the case of an authorization for a special issuance (i.e., a restricted medical certificate), it may not have been withdrawn. Unrestricted medical certificates can be suspended or revoked if the certificate holder does not meet the medical standards of part 67 or as the result of noncompliance with other regulatory requirements. The FAA may also suspend or revoke a medical certificate on the basis of a reexamination of that certificate under section 44709 of Title 49 of the United States Code.

    Section 2307 of FESSA states that the medical certificate “cannot have been revoked or suspended.” Accordingly, if a person's most recently issued medical certificate has been suspended or revoked, the person must apply for and be issued a new medical certificate prior to using the privileges afforded under this rule. This holds true even if the medical certificate was suspended and reinstated because FESSA expressly states that the certificate “cannot have been . . . suspended.” 16 Therefore, if a person's last medical certificate was under suspension at any point in time that medical certificate cannot be used for relief under this rule.

    16 If a person's medical certificate is suspended, modified, or revoked under § 67.413(b), that suspension or modification remains in effect until the person provides the requested information, history, or authorization to the FAA and until the FAA determines that the person meets the medical standards set forth in part 67. 14 CFR 67.413(c).

    Further, if the person's medical certificate expired while under suspension, the person must apply for and be issued a new medical certificate to use the privileges of this rule. This requirement is based on the language in FESSA stating that the certificate “cannot have been suspended.” The fact that the certificate expired while under suspension does not change the fact that it was suspended (for purposes of exercising relief under this rule).

    Finally, § 2307 requires that the most recently issued medical certificate “cannot have been withdrawn.” The FAA notes that unrestricted medical certificates may be denied, suspended, or revoked and authorizations for special issuances (i.e., restricted medical certificates) may be denied or withdrawn. Accordingly, the requirement that the most recently issued authorization for special issuance cannot have been withdrawn is implemented in § 61.23(c)(3)(iii).

    E. Application for an Airman Medical Certificate (§ 61.23(c)(3)(iv))

    Section 2307(a)(4) of FESSA requires that the most recent application for airman medical certification submitted to the FAA by the individual cannot have been completed and denied. The FAA is implementing this requirement in § 61.23(c)(3)(iv).

    Consistent with the Guide for Aviation Medical Examiners and online information on the Aerospace Medical Certification Subsystem (AMCS), the FAA considers an application to be completed once the AME imports the individual's MedXPress application data into AMCS.17 If an individual submits a MedXpress application but the information is never imported into AMCS by an AME (e.g., the individual never makes an appointment or does not show up for the appointment), then the un-imported application would not be completed and, as such, the FAA would have no basis to make a denial or other certification action.18 Therefore, any un-imported application would not be subject to the portion of section 2307 relating to “completed and denied” applications, and the individual would look to the most recent application where the FAA either issued or denied a medical certificate in order to determine eligibility under this rule.

    17 “Information for Aviation Medical Examiners Processing MedXPress Applications” instructs AMEs that “MedX applications must be imported before the applicant leaves your [the AME's] office” and “As soon as you [the AME] import an application into AMCS, it is a signed FAA form and should be treated accordingly.” (https://www.faa.gov/other_visit/aviation_industry/designees_delegations/designee_types/ame/amcs/media/MedXPress%20AME%20Procedures_Jan%202012.pdf.)

    18 When an individual does not follow up a MedXPress application by presenting to an AME for an examination, the data entered through MedXPress system remains valid for 60 days, after which the application expires and is deleted from the MedXPress system. (https://www.faa.gov/other_visit/aviation_industry/designees_delegations/designee_types/ame/amcs/media/MedXPress%20AME%20Procedures_Jan%202012.pdf.)

    After importing a MedXPress application into AMCS, the AME may take one of three actions on the completed application. The AME may: (1) Issue a medical certificate; (2) defer issuance to the FAA; or (3) deny the issuance of a medical certificate. Guidance to AMEs makes clear that once the AME has imported the individual's application in MedXpress, the AME is required to transmit the application to the FAA,19 regardless of whether (a) the applicant leaves the AME office in the middle of the examination, (b) all elements of the AME's examination have been accomplished, or (c) the applicant does/does not provide all additional information required by the AME or the FAA.20 Whenever an AME defers an examination, the FAA makes a determination on that application (denial or issuance).

    19 The AME Guide states that all completed applications and medical examinations, unless otherwise directed by the FAA, must be transmitted electronically via AMCS within 14 days after completion to the AMCD (https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/aam/ame/guide/app_process/general/disposition/.

    20 The AME Guide states that, when an applicant is advised by an Examiner that further examination and/or medical records are needed, the applicant may elect not to proceed. The Examiner is directed to note this in Block 60 [of the FAA form 8500-8, Application for medical certificate]. No certificate should be issued, and the Examiner should forward the application form to the AMCD, even if the application is incomplete. (https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/aam/ame/guide/app_process/app_review/item62/.)

    An individual's application is considered completed and denied and that individual is unable to use the privileges of this rule when:

    (1) An AME denies an application immediately after completing the examination and the FAA does not reverse that decision.

    (2) The FAA denies the application after the applicant has been deferred by the AME.

    (3) A denied application remains under judicial appeal (e.g., to the National Transportation Safety Board), since no valid medical certificate has been issued.

    Additionally, if a person held a medical certificate within the 10-year period preceding July 15, 2016, but subsequently submitted a new application that was completed and denied, that person could not revert to the previous medical certificate meeting the 10-year look back requirement. That person would need to re-apply and be issued a new medical certificate to use the privileges of this rule.

    F. Completion of Medical Education Course (§ 61.23(c)(3)(i)(C))

    Section 2307(a)(5) of FESSA requires the individual to have completed a medical education course during the 24 calendar months before acting as pilot in command of a covered aircraft and demonstrate proof of completion of the course. The FAA notes that section 2307(c) prescribes the medical education course requirements, which are implemented in new part 68 and discussed in section VI of this preamble.

    Section 61.23(c)(3)(i)(C) implements the requirement to have completed the medical education course during the 24 calendar months before acting as PIC of an operation under § 61.113(i).21 The term “24 calendar months” as used throughout 14 CFR means “24 unit months,” and “unit months” is defined as beginning on the first of the month and ending on the last day of the month.22 Thus, a pilot has from the beginning of the 24th calendar month before the month in which he or she wants to act as PIC of an operation under § 61.113(i) to complete the medical education course. For example, if a pilot wants to act as PIC of an operation under § 61.113(i) on August 19, 2019, that pilot must have, since August 1, 2017, completed the medical education course.

    21 Section 61.113(i) implements the operating requirements of section 2307 of the Act.

    22 Legal Interpretation to Mr. Sean Conlin (Feb. 24, 2000).

    G. Care and Treatment by a Physician (§ 61.23(c)(3)(i)(E))

    Section 2307(a)(6) of FESSA requires that the individual, when serving as PIC, is under the care and treatment of a physician if the individual has been diagnosed with any medical condition that may impact the ability of the individual to fly. This requirement is implemented in § 61.23(c)(3)(i)(E).

    H. Receipt of Medical Exam During the Previous 48 Months (§ 61.23(c)(3)(i)(D))

    Section 2307(a)(7) of FESSA requires the individual to have received a comprehensive medical examination from a State-licensed physician during the previous 48 months. This requirement is implemented in § 61.23(c)(3)(i)(D). The FAA notes that section 2307(a)(7) contains additional requirements regarding the comprehensive medical examination. Those additional requirements are implemented in new part 68 and discussed in section VII of this preamble.

    In implementing section 2307(a)(7), the FAA notes that section 2307(a)(5) uses the term “calendar months” and section 2307(a)(7) uses the term “months.” As evident from a legal interpretation issued on February 24, 2000,23 the FAA interprets the terms “calendar months” and “months” differently. The term “calendar months” means “unit months,” as previously discussed, which is defined as beginning on the first day of the month and ending on the last day of the month. The term “months,” however, means months from the exact date at issue. For example, under § 61.23(c)(3)(i)(D), if an individual wants to act as PIC of an operation under § 61.113(i) on July 19, 2021, that individual must have received a comprehensive medical examination on or after July 19, 2017.

    23 Id.

    V. Covered Aircraft Requirements and Operating Requirements

    Section 2307(j) of FESSA contains the covered aircraft requirements and section 2307(a)(8) contains the operating requirements. The FAA is implementing these requirements in new § 61.113(i).24 The following sections discuss the FAA's implementation of the covered aircraft and operating requirements in more detail.

    24 Section 61.113 currently addresses private pilot privileges and limitations.

    A. Covered Aircraft Requirements of Section 2307 of FESSA

    Throughout section 2307, FESSA refers to a “covered aircraft.” Section 2307(j) of FESSA defines a covered aircraft as an aircraft that (1) is authorized under Federal law to carry not more than 6 occupants; and (2) has a maximum certificated takeoff weight of not more than 6,000 pounds.

    The FAA is implementing these requirements for type certificated aircraft in § 61.113(i)(1). For type certificated aircraft, the aircraft's design approval would authorize the number of occupants the aircraft may carry and would contain the maximum certificated takeoff weight. The aircraft's design approval may be a type certificate (TC), a supplemental type certificate (STC), or an amended type certificate (ATC). The FAA recognizes that changes could be made to an aircraft's type design. For example, an aircraft type certificated to carry more than 6 occupants may be altered to carry 6 or less occupants. In order to make such a change, that aircraft would have to obtain a new design approval, such as an STC or an ATC. So long as an aircraft's design approval (i.e., TC, STC, or ATC) authorizes the aircraft to carry no more than 6 occupants, that aircraft would meet the requirement of section 2307(j)(1). Additionally, if an aircraft with a maximum certificated takeoff weight of more than 6,000 pounds is altered to have a maximum certificated takeoff weight of less than 6,000 pounds, that aircraft would meet the requirement of section 2307(j)(2).

    The FAA is implementing the requirements of section 2307(j) for experimental aircraft by adding paragraph (j) to § 91.319. Experimental aircraft, which are not type certificated, are issued special airworthiness certificates. The FAA prescribes operating limitations to accompany the special airworthiness certificates. Additionally, § 91.319 prescribes operating limitations for aircraft having experimental certificates. Consistent with section 2307(j) of FESSA, § 91.319(j) states that no person may operate an aircraft that has an experimental certificate under § 61.113(i) unless the aircraft is carrying not more than 6 occupants. The FAA is adding this paragraph to make clear that experimental aircraft meet the requirements for covered aircraft under this rule.

    The FAA notes that the maximum takeoff weight of an experimental aircraft is determined as part of the special airworthiness certification process. Prior to issuing a special airworthiness certificate, the FAA checks the current weight and balance information for an aircraft, which includes the maximum gross weight established by the operator.

    While a person may operate an aircraft that meets the requirements of section 2307(j) under this rule, the FAA notes that section 2307 does not relieve an aircraft from the requirement to be operated in accordance with its operating limitations.25 Accordingly, if an aircraft being operated under this rule has any operating limitations that conflict with § 61.113(i),26 that aircraft must comply with its operating limitations.

    25 14 CFR 91.9(a).

    26 As noted previously, § 61.113(i) implements the covered aircraft requirements and operating requirements of the Act.

    B. Operating Requirements of Section 2307 of FESSA

    Section 2307(a)(8) of FESSA requires that the individual operate in accordance with the following operating requirements:

    • The covered aircraft is carrying not more than 5 passengers.

    • The individual is operating the covered aircraft under visual flight rules or instrument flight rules.

    • The flight, including each portion of that flight, is not carried out—

    • for compensation or hire, including that no passenger or property on the flight is being carried for compensation or hire;

    • at an altitude that is more than 18,000 feet above mean sea level;

    • outside the United States, unless authorized by the country in which the flight is conducted; or

    • at an indicated airspeed exceeding 250 knots.

    The following sections discuss the FAA's implementation of these requirements in more detail.

    1. The Covered Aircraft Is Carrying Not More Than 5 Passengers

    Section 2307(a)(8)(A) of FESSA requires that the covered aircraft carry no more than five passengers. This requirement is implemented in § 61.113(i)(1).

    As previously discussed, section 2307(j) of FESSA requires the covered aircraft to be authorized to carry no more than six occupants. While section 2307(j) and section 2307(a)(8)(A) may appear to conflict, the FAA notes that it interprets the terms “occupants” and “passengers” differently. The term “occupants” includes all persons onboard an aircraft including any required flightcrew members.27 A flightcrew member is required if he or she is required by type certification of the aircraft or by regulation. The term “passengers” does not include required flight crewmembers. Therefore, under this rule, a covered aircraft may be authorized to carry up to 6 occupants (including any required flight crewmembers) and may be operated with up to five passengers on board. For example, a person may operate an aircraft type certificated for one pilot flightcrew member under this rule with up to five additional occupants on board. An aircraft type certificated for two pilot flightcrew members may be operated under this rule with up to four additional occupants on board.28 An occupant in the aircraft (other than the pilot operating under this rule) may be a passenger, a required pilot flightcrew member (if the aircraft is type certificated for more than one pilot or if the regulations require more than one pilot), or a flight instructor (if the flight is a training operation). If a pilot operating an aircraft under this rule carries another pilot on board who is not a required pilot flightcrew member, that additional pilot would be a passenger under the FAA's regulations.

    27 A flightcrew member means a pilot, flight engineer, or flight navigator assigned to duty in an aircraft during flight time. 14 CFR 1.1

    28 An operation requiring two pilots could not carry five passengers under § 2307(a)(8)(A) because it would exceed the number of occupants allowed under § 2307(j). The FAA considers that, due to the limitations for maximum certificated takeoff weight, all, or nearly all, covered aircraft will require only a single pilot.

    The operations under this rule include training operations. As such, a person may receive flight training from an FAA-authorized flight instructor while the person receiving flight training is acting as PIC and operating under this rule. Alternatively, an individual may receive flight instruction from a flight instructor while the flight instructor is acting as PIC and operating under this rule.

    This rule is applicable only to the person acting as the PIC. Thus, for any flight operated under this rule, the status of the medical certificate of any other pilot aboard who is not acting as the PIC is irrelevant. For example, flight instructors meeting the requirements of this rule may act as PIC while giving flight training without holding a medical certificate, regardless of whether the person receiving flight training holds a medical certificate. While flight training for compensation is considered “other commercial flying” for flight and duty requirements under parts 121 and 135,29 “a certificated flight instructor who is acting as PIC and is receiving compensation for his or her flight instruction is exercising flight instructor privileges for the flight training being provided and is exercising private pilot privileges while acting as PIC of the flight.” 30

    29 Legal Interpretation to Richard Martindell (March 11, 2009); Legal Interpretation to Arturo Rodriguez (July 2, 2012).

    30 Pilot, Flight Instructor, Ground Instructor, and Pilot School Certification Rules, 62 FR 16220 (Apr. 4, 1997).

    2. Operate the Aircraft Under Visual Flight Rules or Instrument Flight Rules

    Section 2307(a)(8)(B) of FESSA permits an operation under that section to be conducted under visual flight rules or instrument flight rules. An individual operating under this rule may, therefore, conduct the flight in visual meteorological conditions or instrument meteorological conditions. The FAA notes, however, that FESSA does not relieve an individual from the requirement to hold an instrument rating and be instrument current to act as PIC under instrument flight rules. Nor does FESSA relieve an aircraft from the requirement to be approved for IFR operations in order to be operated under instrument flight rules.

    3. The Flight, Including Each Portion of the Flight

    Section 2307(a)(8)(C) requires that the flight, including each portion of the flight, is not carried out: (i) For compensation or hire, including that no passenger or property on the flight is being carried for compensation or hire; (ii) at an altitude that is more than 18,000 feet above mean sea level; (iii) outside the United States, unless authorized by the country in which the flight is conducted; or (iv) at an indicated air speed exceeding 250 knots.

    Because the statute includes the phrase “. . . flight, including each portion of the flight,” all of the limitations for the operation set forth in section 2307(a)(8)(C)(i)-(iv) (i.e. compensation/hire prohibition, altitude, geographic, and airspeed limitations) apply to the entire flight. Accordingly, if this rule is being exercised in any flight, it must be applied for the entire flight (takeoff to full-stop landing) and all the operational restrictions apply for the entire flight. The FAA is implementing the requirements of section 2307(a)(8)(C)(i)-(iv) in § 61.113(i)(2)(i)-(iv). These requirements are discussed in more detail below.

    i. Flight Is Not Conducted for Compensation or Hire

    Section 2307(a)(8)(C)(i) of FESSA requires that the flight, including each portion of that flight, is not carried out for compensation or hire, including that no passenger or property on the flight is being carried for compensation or hire. Section 61.113(a) already prohibits private pilots from acting as PIC of an aircraft that is carrying passengers or property for compensation or hire and from acting as PIC for compensation or hire. Accordingly, this FESSA requirement is already addressed by the existing regulation.

    ii. Altitude Restriction

    Section 2307(a)(8)(C)(ii) of FESSA requires that the flight, including each portion of that flight, is not carried out at an altitude that is more than 18,000 feet above mean sea level (MSL). This requirement is implemented in § 61.113(i)(2)(ii).

    For pilots operating aircraft capable of flight above 18,000 feet MSL, the pilot's preflight planning must accommodate the altitude limitation. For instance, if weather phenomena like icing or thunderstorms are forecast (or is within reasonable possibility) within the pilot's route of flight that would necessitate climbing above 18,000 feet MSL, the FAA considers initiating such a flight to be contrary to this rule. The aircraft must operate at or below 18,000 feet MSL during the entire flight.

    iii. Geographic Restriction

    Section 2307(a)(8)(C)(iii) of FESSA requires that the flight, including each portion of that flight is conducted within the United States, unless authorized by the country in which the flight is conducted. This requirement is implemented in § 61.113(i)(2)(iii).

    Title 14 CFR 1.1 defines the United States as the States, the District of Columbia, Puerto Rico, and the possessions, including the territorial waters, and the airspace of those areas. Thus, a pilot operating in the United States, as defined in § 1.1, may elect to use this rule.

    Airmen certificated by the FAA are represented to the International Civil Aviation Organization (ICAO) as compliant with ICAO standards for private pilots, among other requirements. As FESSA and this final rule describe standards that divert from ICAO requirements,31 flights must be geographically limited to operations within the United States.

    31 Annex 1 to the Convention on International Civil Aviation, “Personnel Licensing,” Chapter 6 “Medical Provisions for Licensing,” 11th Edition (July 2011).

    iv. Airspeed Restriction

    Section 2307(a)(8)(C)(iv) of FESSA requires that the flight, including each portion of that flight, is conducted at an indicated airspeed not exceeding 250 knots. The FAA is implementing this requirement in § 61.113(i)(2)(iv).

    Recognizing that many aircraft have airspeed indicators that read in miles per hour (mph), 250 knots is equivalent to 288 mph. No aircraft may be operated in any phase of flight at an airspeed greater than 250 KIAS (knots indicated airspeed).

    VI. Medical Education Course Requirements of Section 2307 of FESSA

    The following sections describe the medical education course requirements of section 2307 of FESSA and the FAA's implementation of those requirements.

    A. Development and Availability of the Medical Education Course

    Section 2307(c)(1) requires the medical education course to be available on the internet free of charge. Section 2307(c)(2) requires the course to be developed and periodically updated in coordination with representatives of relevant nonprofit and not-for-profit general aviation stakeholder groups.

    To implement these requirements, the FAA will work with nonprofit and not-for-profit general aviation stakeholder groups to coordinate and develop a medical education course that meets the requirements of FESSA, which are discussed in more detail below. A nonprofit or not-for-profit general aviation stakeholder group may submit a medical education course to the FAA for consideration. Upon receipt of the submission, the FAA will verify the course meets the requirements of § 68.3. If the FAA accepts the course, the FAA will provide a link to the course on the FAA public Web site. Thus, for public awareness, the FAA's Web site will contain a list of each medical education course that the FAA has accepted.

    The FAA has determined that it is appropriate to enter into agreements with nonprofit or not-for-profit general aviation stakeholder groups who elect to provide the course.

    B. Course Requirements

    Pursuant to the requirements of section 2307(c)(3) through (9) of FESSA, the course must:

    • Educate pilots on conducting medical self-assessments;

    • Advise pilots on identifying warning signs of potential serious medical conditions;

    • Identify risk mitigation strategies for medical conditions;

    • Increase awareness of the impacts of potentially impairing over-the-counter and prescription drug medications;

    • Encourage regular medical examinations and consultations with primary care physicians;

    • Inform pilots of the regulations pertaining to the prohibition on operations during medical deficiency and medically disqualifying conditions; and

    • Provide the checklist developed by the Federal Aviation Administration in accordance with section 2307(b).

    The FAA is implementing these requirements in § 68.3(a)(1)-(7). The FAA notes that the requirements for the checklist, which the course must provide, are implemented in § 68.5.

    C. Documents the Course Must Provide to the Individual and Transmit to the FAA

    Pursuant to the requirements of section 2307(c)(10) of FESSA, upon successful completion of the course, the medical education course must electronically provide to the individual and transmit to the FAA—

    • A certification of completion of the medical education course;

    • A release authorizing the National Driver Register through a designated State Department of Motor Vehicles to furnish to the FAA information pertaining to the individual's driving record;

    • A certification by the individual that the individual is under the care and treatment of a physician if the individual has been diagnosed with any medical condition that may impact the ability of the individual to fly;

    • A form that includes information regarding the individual, the physician, the comprehensive medical exam, and a certification by the individual that the checklist was followed and signed by the physician; and

    • A statement signed by the individual certifying that the individual understands the existing prohibition on operations during medical deficiency. A copy of this signed statement must be provided to the pilot and retained by the pilot.

    These requirements are implemented in § 68.3(b)(1)-(5) and are discussed in more detail below.

    1. Certification of Completion

    Section 2307(c)(10)(A) requires the certification of completion of the medical education course to be printed and retained in the individual's logbook and made available upon request. This certification of completion must contain only the individual's name, address, and airman certificate number.32 The FAA is implementing this requirement in § 68.3(b)(1).

    32 The term “certification” was used in the legislation. The FAA notes that this term may cause confusion with the general use of that term within FAA regulations. This document need only contain the information required by FESSA as set forth in § 68.3(b)(1).

    The PIC must maintain the certification of completion along with his or her pilot logbook. The certification must be available along with the logbook at any time the pilot is presenting the logbook to comply with any regulatory requirement (such as applying for a certificate or rating), or upon request by a representative of the FAA Administrator. Under the terms of FESSA, there is no requirement for pilots to carry compliance documentation that shows their compliance with the relief described in this rule.

    The FAA recognizes that many pilots maintain logbooks electronically. Pilots may carry an electronic facsimile or representation of the certification along with their pilot logbook entries, as long as that representation of the certification is available and clearly legible when the logbook is being used to comply with a regulatory requirement or upon request by a representative of the FAA Administrator.

    2. Authorization for Access to National Driver Register

    Section 2307(c)(10)(B) requires a release authorizing the National Driver Register through a designated State Department of Motor Vehicles to furnish to the FAA information pertaining to the individual's driving record. Section 2307(d) states that the authorization under section 2307(c)(10)(B) shall be an authorization for a single access to the information contained in the National Driver Register. The FAA is implementing these requirements in § 68.3(b)(2).

    The National Driver Register (NDR) is a division in the National Center for Statistics and Analysis under the National Highway Traffic Safety Administration (NHTSA). The NDR maintains the computerized database known as the Problem Driver Pointer System (PDPS), which contains information on individuals whose privilege to operate a motor vehicle has been revoked, suspended, canceled or denied or who have been convicted of serious traffic-related offenses.

    Each time an individual indicates his or her consent for the NDR release, the FAA will conduct a single NDR check in an identical manner to the NDR check currently conducted when a person applies for a medical certificate. Similarly, the information the FAA receives from the NDR check will be used in the same way as for an applicant for a medical certificate.

    3. Certification That the Individual Is Under the Care and Treatment of a Physician

    Section 2307(c)(10)(C) requires a certification by the individual that the individual is under the care and treatment of a physician if the individual has been diagnosed with any medical condition that may impact the ability of the individual to fly, as required by section 2307(a)(6).33 This requirement is implemented in § 68.3(b)(3).

    33 Section 2307(a)(6) requires the individual, when serving as PIC, to be under the care and treatment of a physician if the individual has been diagnosed with any medical condition that may impact the ability of the individual to fly. This requirement is implemented in § 61.23(3)(i)(E).

    The FAA recognizes that there are many thousands of diagnosable medical conditions, as well as innumerable medical treatments and medications. Many conditions, treatments, or medications are unlikely to impact a person's ability to safely operate an aircraft. However, there are numerous conditions, treatments, and medications that are aviation safety risks. Potential adverse effects may result from sudden incapacitation (e.g., epilepsy, coronary artery disease, implantable cardioverter-defibrillators, etc.) or reduced cognitive, mental or physical abilities (e.g., visual impairments, neurological diseases, psychiatric diseases, diabetes or other metabolic diseases, sedative-hypnotic medications, etc.). Each of these, independently or in combination, can adversely affect the pilot's ability to safely perform pilot duties and are a hazard to the national air space. Additionally, the adverse effects of many medical conditions and medications are exaggerated under typical flight conditions, including reduced air pressure, available oxygen, or acceleration forces. Pilots should consult with their physician or other medical care provider for care and treatment of their conditions, but also for guidance on the impact their conditions may have on flight safety. Pilots, in discussion with their physician/medical care provider, should also consult available aeromedical resources on the flight hazards associated with medical conditions/medications. The Do not Issue/Do not Fly list (www.faa.gov/about/office_org/headquarters_offices/avs/offices/aam/ame/guide/pharm/dni_dnf/) is readily available in the AME Guide on the FAA Web site. Chapter 8 of the FAA's Aeronautical Information Manual (AIM 8-1-1) also addresses medical factors for pilots. Additional resources include the FAA's AME Guide, other FAA flight safety Web sites, and the Web sites of non-profit and not-for-profit general aviation stakeholders.

    While the pilot is required to attest that he or she is under the care and treatment of a physician for any condition that affects safe flight, the FAA emphasizes that all pilots are expected to exercise good judgment (whether operating under this rule or not) and conduct a personal self-assessment of their condition before every flight.34 The FAA's recommended self-assessment guidance is found in the “IMSAFE” checklist found in Chapter 8 of the FAA Aeronautical Information Manual at https://www.faa.gov/air_traffic/publications/media/aim.pdf.

    34 Section 61.53(c) requires that for operations provided for in § 61.23(c), a person must meet the provisions of § 61.53(b). That paragraph states that a person shall not act as pilot in command, or in any other capacity as a required pilot flight crewmember, while that person knows or has reason to know of any medical condition that would make the person unable to operate the aircraft in a safe manner.

    The FAA notes that under section 2307(e) of FESSA, which prescribes requirements for the special issuance process, an individual clinically diagnosed with a mental health condition or a neurological condition shall certify every 2 years,35 in conjunction with the certification requirement of section 2307(c)(10)(C), that the individual is under the care of a State-licensed medical specialist for that mental health or neurological condition.36 The requirements for the special issuance process are discussed in section VIII of this preamble.

    35 The FAA notes that section 2307(e) uses the phrase “two years” when discussing the certifications made as part of the medical education course, whereas section 2307(c) uses the phrase “24 calendar months.” For purposes of these certifications, the FAA anticipates that the certification will occur in conjunction with completion of the medical education course.

    36 Section 2307(e)(3) contains the special rules for mental health conditions. Section 2307(e)(4) contains the special rules for neurological conditions.

    4. Form

    Section 2307(c)(10)(D) of FESSA requires the form, which must be electronically provided to the individual and transmitted to the FAA upon successful completion of the course, to include the following information:

    • The name, address, telephone number, and airman certificate number of the individual;

    • The name, address, telephone number, and State medical license number of the physician performing the comprehensive medical examination 37 required in section 2307(a)(7);

    37 The FAA notes that the comprehensive medical examination occurs every 48 months while the medical education course must be completed every 24 calendar months. As such, a pilot may be reporting a medical exam that occurred 24 calendar months prior.

    • The date of the comprehensive medical examination required in section 2307(a)(7); and

    • A certification by the individual that the checklist described in subsection (b) was followed and signed by the physician in the comprehensive medical examination required in section 2307(a)(7).

    These requirements are implemented in § 68.3(b)(4)(i)-(iv).

    5. Certification Regarding the Prohibition on Operations During Medical Deficiency

    Section 2307(c)(10)(E) of FESSA requires the individual to sign 38 a statement certifying that the individual understands the existing prohibition on operations during medical deficiency by stating: “I understand that I cannot act as pilot in command, or any other capacity as a required flight crew member, if I know or have reason to know of any medical condition that would make me unable to operate the aircraft in a safe manner.” This statement shall be electronically provided to the individual and transmitted to the FAA upon successful completion of the course. The FAA is implementing this requirement in § 68.3(b)(5).

    38 Section 2307 indicates that the statement should be “printed and signed” prior to being transmitted to the FAA. The FAA is construing this requirement to allow for electronic signature and electronic retention of this statement. See Government Paperwork Elimination Act (GPEA), Public Law 105-277 Title XVII.

    The Advisory Circular (AC) 68-1, Alternative Medical Qualifications, contains additional information about the medical education course requirements.

    VII. Comprehensive Medical Examination

    In order to act as PIC under this rule, an individual must receive a comprehensive medical examination from a State-licensed physician during the previous 48 months in accordance with section 2307(a)(7). This requirement is reflected in § 61.23(c)(3)(i)(D).

    Section 2307(a)(7)(A) requires that prior to the examination, the individual do the following: (1) Complete the individual's section of the medical examination checklist described in section 2307(b); and (2) provide the completed checklist to the physician performing the examination. The FAA is implementing these requirements in § 68.5(a)(1)-(2).

    Section 2307(a)(7)(B) of FESSA requires the physician to: (1) Conduct the comprehensive medical examination in accordance with the checklist; (2) check each item specified during the examination; and (3) address, as medically appropriate, every medical condition listed and any medications the individual is taking. The FAA is implementing these requirements in § 68.5(b)(1)-(3).

    VIII. Comprehensive Medical Examination Checklist A. Checklist Requirements of Section 2307 of FESSA

    Section 2307(b)(1) of FESSA requires that the FAA develop a checklist for an individual to complete and provide to the physician performing the required comprehensive medical examination.

    Section 2307(b)(2) of FESSA requires the checklist to contain three sections: (1) A section for the individual to complete; (2) a section with instructions for the individual to provide the completed checklist to the physician performing the examination; and (3) a section for the physician to complete, which contains instructions for the physician performing the examination. Section 2307(b) prescribes requirements for each of these sections, which are discussed below. The FAA is implementing the comprehensive medical examination checklist requirements in § 68.7 and has developed the checklist in accordance with these requirements.

    1. Section for the Individual To Complete

    Section 2307(b)(2)(A)(i) of FESSA requires the checklist to contain a section for the individual to complete, which contains boxes 3 through 13 and boxes 16 through 19 of the FAA form 8500-8, Application for Airman Medical Certificate (3-99).39 This requirement is implemented in § 68.7(a)(1). The AC contains the specific information required by boxes 3 through 13 and boxes 16 through 19.

    39 Section 2307 of FESSA specifically references the FAA form 8500-8 revision dated 3-99. The FAA notes that since that revision the FAA has revised the form several times, most recently with publication of the final rule Student Pilot Application Requirements, 81 FR 1292 (Jan. 12, 2016). In accordance with the requirements of FESSA, the FAA has developed the comprehensive medical examination checklist using boxes 3-13 and 16-19 as they appeared on the FAA form 8500-8 revision 3-99.

    Section 2307(b)(2)(A)(ii) of FESSA requires the checklist to contain (in the section for the individual) a signature line for the individual to affirm that:

    • The answers provided by the individual on that checklist, including the individual's answers regarding medical history, are true and complete;

    • The individual understands that he or she is prohibited under Federal Aviation Administration regulations from acting as pilot in command, or any other capacity as a required flight crew member, if he or she knows or has reason to know of any medical deficiency or medically disqualifying condition that would make the individual unable to operate the aircraft in a safe manner; and

    • The individual is aware of the regulations pertaining to the prohibition on operations during medical deficiency and has no medically disqualifying conditions in accordance with applicable law.

    The FAA is implementing these requirements in § 68.7(a)(2)(i)-(iii).

    2. Section Containing Instructions for the Individual

    Section 2307(b)(2)(B) requires the checklist to contain a section with instructions for the individual to provide the completed checklist to the physician performing the comprehensive medical examination. The FAA is implementing this requirement in § 68.7(b).

    3. Section for the Physician To Complete With Instructions for the Physician

    Section 2307(b)(2)(C)(i) of FESSA requires the checklist to include a section for the physician to complete, that instructs the physician to perform a clinical examination of the following:

    • Head, face, neck, and scalp;

    • Nose, sinuses, mouth, and throat;

    • Ears, general (internal and external canals), and eardrums (perforation);

    • Eyes (general), ophthalmoscopic, pupils (equality and reaction), and ocular motility (associated parallel movement, nystagmus);

    • Lungs and chest (not including breast examination);

    • Heart (precordial activity, rhythm, sounds, and murmurs);

    • Vascular system (pulse, amplitude, and character, and arms, legs, and others);

    • Abdomen and viscera (including hernia);

    • Anus (not including digital examination);

    • Skin;

    • G-U system (not including pelvic examination);

    • Upper and lower extremities (strength and range of motion);

    • Spine and other musculoskeletal;

    • Identifying body marks, scars, and tattoos (size and location);

    • Lymphatics;

    • Neurologic (tendon reflexes, equilibrium, senses, cranial nerves, and coordination, etc.);

    • Psychiatric (appearance, behavior, mood, communication, and memory);

    • General systemic;

    • Hearing;

    • Vision (distant, near, and intermediate vision, field of vision, color vision, and ocular alignment);

    • Blood pressure and pulse; and

    • Anything else the physician, in his or her medical judgment, considers necessary.

    The FAA is implementing these requirements in § 68.7(c)(1)(i)-(xxii).

    Section 2307(b)(2)(C)(ii) requires the physician to exercise medical discretion to address, as medically appropriate, any medical conditions identified, and to exercise medical discretion in determining whether any medical tests are warranted as part of the comprehensive medical examination. The FAA is implementing this requirement in § 68.7(c)(2).

    Section 2307(b)(2)(C)(iii) of FESSA requires the checklist to instruct the physician to discuss all drugs the individual reports taking (prescription and nonprescription) and their potential to interfere with the safe operation of an aircraft or motor vehicle. The FAA is implementing this requirement in § 68.7(c)(3).

    Furthermore, section 2307(b)(2)(C)(iv) of FESSA requires the checklist to instruct the physician to sign the checklist, stating: “I certify that I discussed all items on this checklist with the individual during my examination, discussed any medications the individual is taking that could interfere with his or her ability to safely operate an aircraft or motor vehicle, and performed an examination that included all of the items on this checklist. I certify that I am not aware of any medical condition that, as presently treated, could interfere with the individual's ability to safely operate an aircraft.” The FAA is implementing this requirement in § 68.7(c)(4).

    Lastly, section 2307(b)(2)(C)(v) of FESSA requires the checklist to instruct the physician to provide the date the comprehensive medical examination was completed, and the physician's full name, address, telephone number, and State medical license number. This requirement is implemented in § 68.7(c)(5).

    The FAA relies on the determination of each State (as well as each territory and possession of the United States) as to which persons it will license as physicians. If the person holds a license as a physician issued by any State, territory, or possession, then he or she meets the requirement as a State-licensed physician. The FAA notes that all States license medical doctors (M.D.s) and doctors of osteopathic medicine (D.O.s) as physicians, although Federal and some State laws may permit the licensure of other persons, such as doctors of dental surgery (D.D.S.) as physicians. While the FAA expects that a specialist physician, (e.g., D.D.S., dentist, podiatrist) who does not also hold an M.D. or D.O. would not have the breadth of training to conduct a medical exam as required in this rule, the FAA will rely on each State-licensed physician to determine whether he or she is qualified to conduct the medical exam required by FESSA.

    Existing FAA prohibitions against self-endorsements would apply, prohibiting a State-licensed physician from conducting the physical examination on himself or herself.

    B. Inclusion of the Completed Checklist in the Pilot's Logbook

    Section 2307(b)(3) of FESSA requires that the completed checklist be retained in the pilot's logbook and be made available upon request. The FAA is implementing this requirement in § 61.113(i)(3).

    The FAA recognizes that many pilots now maintain logbook information electronically. Similar to the requirements described previously for the course completion certification described in section 2307(c)(10)(A), the FAA notes that pilots may retain an electronic version of the completed checklist using whatever method they choose so long as an accurate electronic or physical representation of the document can be made available upon request.

    C. FAA Implementation of the Comprehensive Medical Examination Checklist Requirements of Section 2307 of FESSA

    Section 2307(c)(9) of FESSA requires the medical education course to provide the medical examination checklist developed by the FAA. For purposes of implementation, the FAA will require that any nonprofit or not-for-profit general aviation stakeholder group that provides a medical course for this rule make the checklist available at that group's Web site.

    To implement the medical checklist provisions of FESSA, the FAA has developed the Comprehensive Medical Examination Checklist. The checklist is a fillable PDF form available on the FAA Web site, in addition to the location discussed immediately above. Pilots may complete the form either electronically or may print it out and complete it. Regardless of how the pilot chooses to complete the form, the pilot must print the form, sign it, and take it to the State-licensed physician performing the medical examination. The FAA will provide the blank Comprehensive Medical Examination Checklist but will not be collecting and maintaining the checklist in any FAA system of records. As noted, the pilot will be required to retain the checklist as one of the items necessary for verification that he or she is eligible to operate under this rule.

    IX. Special Issuance Process A. Requirements of Section 2307 of FESSA

    Section 2307(e)(1) of FESSA states that an individual who has qualified for the third-class medical certificate exemption under subsection (a) of section 2307 and is seeking to serve as a PIC of a covered aircraft shall be required to have completed the process for obtaining an Authorization for Special Issuance of a Medical Certificate if that person has any of the following: (1) A mental health disorder; (2) a neurological disorder; or a (3) cardiovascular condition.

    Section 2307(e)(1)(A) states that a mental health disorder is limited to an established medical history or clinical diagnosis of:

    • Personality disorder that is severe enough to have repeatedly manifested itself by overt acts;

    • Psychosis, defined as a case in which an individual: (i) Has manifested delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of psychosis; or (ii) may reasonably be expected to manifest delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of psychosis;

    • Bipolar disorder; or

    • Substance dependence within the previous 2 years, as defined in § 67.307(a)(4) of title 14, Code of Federal Regulations.

    Section 2307(e)(1)(B) states that a neurological disorder is limited to an established medical history or clinical diagnosis of any of the following:

    • Epilepsy.

    • Disturbance of consciousness without satisfactory medical explanation of the cause.

    • A transient loss of control of nervous system functions without satisfactory medical explanation of the cause.

    Section 2307(e)(1)(C) states that a cardiovascular condition is limited to a one-time special issuance for each diagnosis of the following:

    • Myocardial infarction.

    • Coronary heart disease that has required treatment.

    • Cardiac valve replacement.

    • Heart replacement.

    The FAA is implementing the requirements of section 2307(e)(1)(A)-(C) in § 68.9(a)(1)-(3).

    1. Special Rule for Cardiovascular Conditions

    Section 2307(e)(2) of FESSA states that in the case of an individual with a cardiovascular condition, the process for obtaining an Authorization for Special Issuance of a Medical Certificate shall be satisfied with the successful completion of an appropriate clinical evaluation without a mandatory wait period.40

    40 Current guidance establishes mandatory wait periods for certain cardiovascular conditions. For example, there is a 3-month recovery time after a myocardial infarction from non-coronary heart disease before an applicant may be considered for a medical certificate. 2016 Guide for Aviation Medical Examiners.

    The FAA is implementing this requirement in § 68.9(b).

    2. Special Rule for Mental Health Conditions

    Section 2307(e)(3)(A)(i) of FESSA states that in the case of an individual with a clinically diagnosed mental health condition, the ability to operate without a third-class medical certificate under subsection (a) of section 2307 shall not apply if in the judgment of the individual's State-licensed medical specialist, the condition: (1) Renders the individual unable to safely perform the duties or exercise the airman privileges described in the operating requirements of subsection (a)(8); or (2) may reasonably be expected to make the individual unable to perform the duties or exercise the privileges described in the operating requirements of subsection (a)(8).

    Additionally, section 2307(e)(3)(A)(ii) states that in the case of an individual with a clinically diagnosed mental health condition, the ability to operate without a third-class medical certificate under section 2307(a) shall not apply if the individual's driver's license is revoked by the issuing agency as a result of a clinically diagnosed mental health condition.

    The FAA is implementing section 2307(e)(3)(A)(i)-(ii) in § 68.9(c)(1)(i)-(ii).

    Section 2307(e)(3)(B) of FESSA requires that an individual clinically diagnosed with a mental health condition shall certify every 2 years, in conjunction with the certifications under subsection (c)(10)(C), that the individual is under the care of a State-licensed medical specialist for that mental health condition. The FAA is implementing this requirement in § 68.9(c)(2). This certification will be incorporated into the medical education course process. The FAA notes that the certifications required under subsection (c)(10)(C) of FESSA are implemented in § 68.3(b)(3).

    3. Special Rule for Neurological Conditions

    Section 2307(e)(4)(A)(i) states that in the case of an individual with a clinically diagnosed neurological condition, the ability to operate without a third-class medical certificate under subsection (a) of section 2307 shall not apply if in the judgment of the individual's State-licensed medical specialist, the condition: (1) Renders the individual unable to safely perform the duties or exercise the airman privileges described in the operating requirements of subsection (a)(8); or (2) may reasonably be expected to make the individual unable to perform the duties or exercise the privileges described in the operating requirements of subsection (a)(8).

    Section 2307(e)(4)(A)(ii) states that in the case of an individual with a clinically diagnosed neurological condition, the ability to operate without a third-class medical certificate under subsection (a) of section 2307 shall not apply if the individual's driver's license is revoked by the issuing agency as a result of a clinically diagnosed neurological condition.

    The FAA is implementing the requirements of section 2307(4)(A) in § 68.9(d)(1)(i)-(ii).

    Section 2307(4)(B) of FESSA requires that an individual clinically diagnosed with a neurological condition shall certify every 2 years, in conjunction with the certification under subsection (c)(10)(C), that the individual is under the care of a State-licensed medical specialist for that neurological condition. As with the requirements for certain mental health disorders, this certification will be incorporated into the medical education course process.

    Regarding the certification related to mental health disorders and neurological disorders, the FAA recognizes that the inclusion of such a certification could create confusion. So to clarify, the FAA has written the certifications for the individual to attest (1) that the individual does not have a mental health disorder or neurological disorder or, (2) if the individual has a mental health disorder or neurological disorder, that the individual is under the care of a State-licensed medical specialist for that mental health condition or neurological condition. The FAA's intent is to ensure that no medical information is collected. Rather, the FAA views these certifications as a place for the individuals to attest that if they have a mental health or neurological disorder listed in section 2307, then they meet the section 2307 requirement that they are under the care of a State-licensed medical specialist for that condition.

    B. Special Issuance Medical Certificates

    All persons who currently hold an FAA-issued special issuance medical certificate, or who have held an FAA-issued special issuance medical certificate within the 10-year period preceding the enactment of FESSA, for conditions other than the specified cardiovascular, mental health, and neurological conditions listed in FESSA, may elect to use this rule. These persons are no longer required to maintain their special issuance medical certificate if they choose to comply with the requirements of section 2307 of FESSA. The FAA emphasizes that it expects all pilots, including persons who hold or have held a special issuance medical certificate, to comply with care and treatment protocols recommended by their State-licensed physician.

    If a pilot, while using this rule, is diagnosed with a condition that would have, in the past, required the pilot to be considered for a special issuance medical certificate, but is not one of the specified conditions described in FESSA, then that pilot may continue to exercise the privileges of this rule so long as all other requirements of section 2307 of FESSA are met.

    FESSA prescribes specific responsibilities and prohibitions that must be met for pilots who have certain cardiovascular, neurological, or mental health conditions. Persons who have, or are newly diagnosed with, a cardiovascular, neurological, or mental health condition described in FESSA, may not use this rule until they have been found eligible for special issuance of a medical certificate. Once issued a medical certificate, the person may then use this rule if he or she meets all other requirements of FESSA.

    X. Authority To Require Additional Information

    Section 2307(l)(1) of FESSA states that if the Administrator receives credible or urgent information, including from the National Driver Register or the FAA Hotline Program, that reflects on an individual's ability to safely operate a covered aircraft under the third-class medical certificate exemption in subsection (a) of section 2307, the Administrator may require the individual to provide additional information or history so that the Administrator may determine whether the individual is safe to continue operating a covered aircraft. Section 2307(l)(2) states that the Administrator may use credible or urgent information received to request an individual to provide additional information or to take actions under section 44709(b) of title 49, United States Code.

    The FAA has implemented the provisions of section 2307(l) in new § 68.11.

    XI. Advisory Circular

    To further implement this final rule, the FAA has developed Advisory Circular 68-1, Alternative Pilot Physical Examination and Education Requirements. The advisory circular describes the relief and provides guidance on how to comply with the rule's provisions. It also includes frequently asked questions and guidance on how a nonprofit or not-for-profit general aviation stakeholder group can offer an approved course under this rule.

    XII. Section-by-Section Discussion of the Final Rule

    In part 61, Certification: Pilots, flight instructors, and ground instructors, § 61.3, requirement for certificates, ratings, and authorizations, is revised to add operations conducted under this rule to the list of exceptions to the requirement to hold a medical certificate.41 Section 61.3 is also amended to add the documents establishing alternative medical qualification under part 68 to the list of documents available for inspection under paragraph (l).

    41 The FAA notes that § 61.113(i) contains the operating requirements for this rule. The FAA also notes that persons operating under this rule without a medical certificate must hold a valid U.S. driver's license.

    Section 61.23, medical certificates: requirement and duration, is revised to provide an exception for operations conducted under this rule for persons otherwise required to hold a third-class medical certificate.

    For operations requiring either a medical certificate or U.S. driver's license, § 61.23(c)(1) is amended to state that a person must hold and possess either a medical certificate or a U.S. driver's license when exercising the privileges of a student, recreational or private pilot certificate and operating under this rule, or when exercising the privileges of a flight instructor certificate and acting as the PIC or as a required flight crewmember if the flight is conducted under this rule.

    The FAA is also adding § 61.23(c)(3), which contains the requirements for persons using a U.S. driver's license to operate under this rule.

    In § 61.89, the FAA is adding paragraph (d) to allow the holder of a student pilot certificate to operate under this rule without holding a medical certificate.

    In § 61.101, the FAA is adding paragraph (k) to allow a recreational pilot to operate under this rule without holding a medical certificate.

    Section 61.113 is revised to add paragraph (i), which contains the operational requirements of section 2307.

    The FAA is adding part 68, Requirements for operating certain small aircraft without a medical certificate, to title 14 of the Code of Federal Regulations. Section 68.1 provides the applicability of the part.

    Section 68.3 provides the Medical Education Course Requirements.

    Section 68.5 implements the requirements for the Comprehensive Medical Examination, including the requirements for the physician and the individual.

    Section 68.7 provides the requirements for the Comprehensive Medical Examination Checklist.

    Section 68.9 implements the requirements for the Special Issuance Process.

    Section 68.11 provides the FAA with authority to require additional information as described in FESSA.

    In § 91.319, the FAA is adding paragraph (j) to make clear that experimental aircraft may operate under the conditions and limitations of § 61.113(i).

    XIII. Regulatory Notices and Analyses A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39 as amended) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

    In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

    Total Benefits and Costs of This Rule Total Savings and Costs of the Rule [2017 to 2026] SAVINGS COSTS Medical Examination: 3rd Class Medical Certificates for Pilots Age 40-and-Over $290,421,038 Physical Examinations by State-Licensed Physician: Pilots Age 40-and-Over $262,656,213 Physical Examinations by State-Licensed Physician: Special Issuance $3,055,973 Medical Examination: 3rd Class Medical Certificates with a Special Issuances 90,679,136 Online Training Course 42,004,478 FAA Savings 1,782,230 NDR Checks 7,422,763 Total Savings 382,882,405 Total Costs 315,139,427 Present Value (7% discount rate) 272,835,610 Present Value (7% discount rate) 227,799,517 Totals may not add due to rounding. Who is potentially affected by this Rule?

    All pilots with eligible pilot certificates are affected by this rule. Eligible pilots will need to have held a valid FAA medical certificate within the 10 years preceding the date of enactment of FESSA, July 15, 2016, and will need a valid U.S. driver's license.

    Assumptions:

    • Costs and benefits are estimated over 10 years from 2017 through 2026.

    • Costs and benefits are presented in 2016 dollars.

    • The present value discount rate of seven percent is used as required by the Office of Management and Budget.

    • An FAA medical examination with an AME is approximately $117.

    • An FAA follow-up evaluation with an AME is approximately $58.50.

    • A pilot's medical examination with a state-licensed physician is approximately $225.42

    42 Four Coding and Payment Opportunities You Might Be Missing, American Academy of Family Physicians. 2016 May-June;23(3):30-35. http://www.aafp.org/fpm/2016/0500/p30.html.

    • An annual growth rate of 1.0 percent per year is applied to hourly wages per Department of Transportation Guidance.43

    43 2015 Department of Transportation Value of Travel Time Guidance; https://www.transportation.gov/administrations/office-policy/2015-value-travel-time-guidance.

    • Vehicle operating cost per mile (VOC) as determined by the Internal Revenue Service (IRS) is $0.19.44

    44 Internal Revenue Service (IRS) Standard Mileage Rate for 2016, 0.19 cents per mile driven for medical or moving purposes; https://www.irs.gov/uac/newsroom/2016-standard-mileage-rates-for-business-medical-and-moving-announced Dec. 17, 2015.

    • The hourly rate of a pilot's travel time (VTTS) as determined by the Department of Transportation (DOT) is $12.50 in 2013. This value is augmented by 1.0 percent per year to project future benefits of travel time saved from 2013 to 2026.45

    45 2015 Departmental Guidance on Valuation of Travel Time in Economic Analyses; Table 4: Recommended Hourly Values of Travel Time Savings (Personal category for local surface modes of transportation). https://www.transportation.gov/administrations/office-policy/2015-value-travel-time-guidance.

    • The hourly rate of a pilot's time (VPT) as determined by DOT is $25.00 in 2013. This value is augmented by 1.0 percent per year to project the annual growth rate of real median household income from 2013 to 2026.46

    46 2015 Departmental Guidance on Valuation of Travel Time in Economic Analyses; Table 3: Recommended Hourly Earning Rates for Determining Values of Travel Time Savings, https://www.transportation.gov/administrations/office-policy/2015-value-travel-time-guidance.

    • The FAA assumes 0.5 hours to complete the MedXpress form.

    • The FAA assumes that the time required to fill out the MedXpress form will be the same time required to fill out section 1 of the medical checklist that must be partially completed by the pilot and taken to the physician.

    • The FAA assumes 1 hour to complete a medical examination.

    • The FAA assumes 0.5 hours to complete a follow-up evaluation.

    • The value of FAA time to review medical applications per hour is shown in table 1 and includes fringe benefits for federal employees.47

    47http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2008/m08-13.pdf.

    Table 1—2016 Weighted Average of Hourly Wage for FAA Employees Reviewing Applications for Medical Certificates Wages with benefits Number of people A b a × b Legal instrument examiners 48 $50.46 42 $2,119 Regional Flight Surgeons 49 139.59 9 1,256 Senior Executives 50 139.59 3 419 Civil Aerospace Medicine Institute (CAMI) Medical Officers 51 139.59 6 838 Civil Aerospace Medicine Institute (CAMI) Physicians 52 139.59 3 419 Total 63 5,051 Weighted Average Wage Rate = $5,051/63 80.17 Totals may not add due to rounding. Benefits of this Rule

    48 2016 General Schedule (GS) Locality Pay Tables; GS-11 Step 5 locality pay The REST OF UNITED STATES; https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/RUS_h.pdf ; plus fringe benefits; http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2008/m08-13.pdf.

    49 SALARY TABLE NO. 2016-ES plus fringe benefits; https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/ES.pdf, Agencies with a Certified SES Performance Appraisal System Maximum; http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2008/m08-13.pdf.

    50 SALARY TABLE NO. 2016-ES plus fringe benefits; https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/ES.pdf, Agencies with a Certified SES Performance Appraisal System Maximum; http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2008/m08-13.pdf.

    51 2016 General Schedule (GS) Locality Pay Tables; GS-11 Step 5 locality pay The REST OF UNITED STATES; https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/RUS_h.pdf; plus fringe benefits; http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2008/m08-13.pdf.

    52 2016 General Schedule (GS) Locality Pay Tables; GS-11 Step 5 locality pay The REST OF UNITED STATES; https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/RUS_h.pdf ; plus fringe benefits; http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2008/m08-13.pdf.

    The FAA estimates potential savings to pilots, based on age and a pilot's medical condition, from eliminating medical examinations with an AME. The elimination of these examinations will save pilots the time to complete the online medical application (MedXpress), travel time to the medical examination, the time required to complete the medical examination, vehicle operating costs based on miles traveled to the examination, and the cost of the medical examination. For pilots with special-issuances, the FAA anticipates added savings by eliminating follow-up medical evaluations, determined by their medical condition, with an AME. Additionally, the FAA will save time by reducing the number of applications reviewed for special-issuance medical certificates. Total savings are estimated at $382.9 million ($272.8 million at a 7 percent present value) over 10 years.

    Costs of this Rule

    Costs for this rule are attributed to the physical examination completed by a State-licensed physician every 48 months, the medical education course that pilots will complete every 24 calendar months, and an increase in NDR checks for pilots under age 40 with a special issuance medical certificate. Unlike pilots 40 years of age and older, who the FAA expects will benefit from the elimination of the AME examinations, the FAA expects the savings to pilots under 40 years of age will only occur for those pilots requiring Authorization for a special issuance medical certificate. Total costs are estimated at $315.1 million ($227.8 million at a 7 percent present value) over 10 years.

    Overall, the rule results in a net benefit of $67.7 million over 10 years.

    B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

    Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

    The FAA believes that this final rule would not have a significant impact on a substantial number of entities for the following reason: Pilots that choose to use this alternative requirement will receive a savings, however this final rule is voluntary hence there are no costs imposed on small entities.

    If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

    C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will only have a domestic impact and therefore will not create unnecessary obstacles to the foreign commerce of the United States.

    D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million.

    This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

    E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act, (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA will submit these information collection amendments to OMB for its review.

    To implement the Act, the FAA is establishing one new information collection. This information collection includes the medical education course as well as the Individual Checklist for Medical Examination. Pursuant to the requirements of the Paperwork Reduction Act, the FAA published a 60-day notice seeking comment regarding this new information collection.

    For those individuals who elect to use this rule the FAA considers that they no longer possess any airman medical certificate. Thus, the FAA is making a corresponding change to information collection 2120-0034, Application for Airman Medical Certificate, to reduce the burden associated with that information collection. The FAA published a 60-day notice seeking comment regarding the revision of this existing information collection.

    F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed ICAO Standards and Recommended Practices (SARPs) applicable to private pilots.

    The FAA has filed new differences and modified certain existing differences to reflect that certain U.S. private pilots no longer are required to hold a current FAA airman medical certificate. A filing is required for certain ICAO Annex 1 SARPs found in Chapters 1, 2, and 6.

    G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f and involves no extraordinary circumstances.

    XIV. Executive Order Determinations A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have Federalism implications.

    B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

    The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

    C. Executive Order 13609, Promoting International Regulatory Cooperation

    Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

    XVI. Additional Information A. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the Internet by—

    • Searching the Federal eRulemaking Portal (http://www.regulations.gov);

    • Visiting the FAA's Regulations and Policies Web site at http://www.faa.gov/regulations_policies or

    • Accessing the Government Publishing Office's Web site at http://www.fdsys.gov.

    Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9677. Requestors must identify the docket or amendment number of this rulemaking.

    All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced above.

    B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

    List of Subjects 14 CFR part 61

    Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements.

    14 CFR part 68

    Aircraft, Airmen, Health, Reporting and recordkeeping requirements.

    14 CFR part 91

    Aircraft, Airmen, Aviation safety.

    The Amendment

    In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

    PART 61—CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS 1. The authority citation for part 61 is revised to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40113, 44701-44703, 44707, 44709-44711, 44729, 44903, 45102-45103, 45301-45302; Sec. 2307 Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note).

    2. In § 61.3, revise paragraphs (c)(2)(viii) and (x) through (xii), add paragraphs (c)(2)(xiii) and (xiv), and revise paragraph (l) introductory text to read as follows:
    § 61.3 Requirement for certificates, ratings, and authorizations.

    (c) * * *

    (2) * * *

    (viii) Is exercising the privileges of a flight instructor certificate, provided the person is not acting as pilot in command or as a required pilot flight crewmember;

    * * *

    (x) Is operating an aircraft within a foreign country using a pilot license issued by that country and possesses evidence of current medical qualification for that license;

    (xi) Is operating an aircraft with a U.S. pilot certificate, issued on the basis of a foreign pilot license, issued under § 61.75, and holds a medical certificate issued by the foreign country that issued the foreign pilot license, which is in that person's physical possession or readily accessible in the aircraft when exercising the privileges of that airman certificate;

    (xii) Is a pilot of the U.S. Armed Forces, has an up-to-date U.S. military medical examination, and holds military pilot flight status;

    (xiii) Is exercising the privileges of a student, recreational or private pilot certificate for operations conducted under the conditions and limitations set forth in § 61.113(i) and holds a U.S. driver's license; or

    (xiv) Is exercising the privileges of a flight instructor certificate and acting as pilot in command for operations conducted under the conditions and limitations set forth in § 61.113(i) and holds a U.S. driver's license.

    (l) Inspection of certificate. Each person who holds an airman certificate, medical certificate, documents establishing alternative medical qualification under part 68 of this chapter, authorization, or license required by this part must present it and their photo identification as described in paragraph (a)(2) of this section for inspection upon a request from:

    3. In § 61.23, revise paragraphs (a)(3), (c)(1)(iii) and (iv), add paragraphs (c)(1)(v) and (vi), revise paragraph (c)(2) introductory text, and add paragraph (c)(3) to read as follows:
    § 61.23 Medical certificates: Requirement and duration.

    (a) * * *

    (3) Must hold at least a third-class medical certificate—

    (i) When exercising the privileges of a private pilot certificate, recreational pilot certificate, or student pilot certificate, except when operating under the conditions and limitations set forth in § 61.113(i);

    (ii) When exercising the privileges of a flight instructor certificate and acting as the pilot in command or as a required flightcrew member, except when operating under the conditions and limitations set forth in § 61.113(i);

    (iii) When taking a practical test in an aircraft for a recreational pilot, private pilot, commercial pilot, or airline transport pilot certificate, or for a flight instructor certificate, except when operating under the conditions and limitations set forth in § 61.113(i); or

    (iv) When performing the duties as an Examiner in an aircraft when administering a practical test or proficiency check for an airman certificate, rating, or authorization.

    (c) * * *

    (1) * * *

    (iii) Exercising the privileges of a flight instructor certificate with a sport pilot rating while acting as pilot in command or serving as a required flight crewmember of a light-sport aircraft other than a glider or balloon;

    (iv) Serving as an Examiner and administering a practical test for the issuance of a sport pilot certificate in a light-sport aircraft other than a glider or balloon;

    (v) Exercising the privileges of a student, recreational or private pilot certificate if the flight is conducted under the conditions and limitations set forth in § 61.113(i); or

    (vi) Exercising the privileges of a flight instructor certificate and acting as the pilot in command or as a required flight crewmember if the flight is conducted under the conditions and limitations set forth in § 61.113(i).

    (2) A person using a U.S. driver's license to meet the requirements of paragraph (c) while exercising sport pilot privileges must—

    * * *

    (3) A person using a U.S. driver's license to meet the requirements of paragraph (c) while operating under the conditions and limitations of § 61.113(i) must meet the following requirements—

    (i) The person must—

    (A) Comply with all medical requirements or restrictions associated with his or her U.S. driver's license;

    (B) At any point after July 14, 2006, have held a medical certificate issued under part 67 of this chapter;

    (C) Complete the medical education course set forth in § 68.3 of this chapter during the 24-calendar months before acting as pilot in command in an operation conducted under § 61.113(i) and retain a certification of course completion in accordance with § 68.3(b)(1) of this chapter;

    (D) Receive a comprehensive medical examination from a State-licensed physician during the 48 months before acting as pilot in command of an operation conducted under § 61.113(i) and that medical examination is conducted in accordance with the requirements in part 68 of this chapter; and

    (E) If the individual has been diagnosed with any medical condition that may impact the ability of the individual to fly, be under the care and treatment of a State-licensed physician when acting as pilot in command of an operation conducted under § 61.113(i).

    (ii) The most recently issued medical certificate—

    (A) May include an authorization for special issuance;

    (B) May be expired; and

    (C) Cannot have been suspended or revoked.

    (iii) The most recently issued Authorization for a Special Issuance of a Medical Certificate cannot have been withdrawn; and

    (iv) The most recent application for an airman medical certificate submitted to the FAA cannot have been completed and denied.

    4. In § 61.89, add paragraph (d) to read as follows:
    § 61.89 General Limitations.

    (d) The holder of a student pilot certificate may act as pilot in command of an aircraft without holding a medical certificate issued under part 67 of this chapter provided the student pilot holds a valid U.S. driver's license, meets the requirements of § 61.23(c)(3), and the operation is conducted consistent with the requirements of paragraphs (a) and (b) of this section and the conditions of § 61.113(i). Where the requirements of paragraphs (a) and (b) of this section conflict with § 61.113(i), a student pilot must comply with paragraphs (a) and (b) of this section.

    5. In § 61.101, add paragraph (k) to read as follows:
    § 61.101 Recreational pilot privileges and limitations.

    (k) A recreational pilot may act as pilot in command of an aircraft without holding a medical certificate issued under part 67 of this chapter provided the pilot holds a valid U.S. driver's license, meets the requirements of § 61.23(c)(3), and the operation is conducted consistent with this section and the conditions of § 61.113(i). Where the requirements of this section conflict with § 61.113(i), a recreational pilot must comply with this section.

    6. In § 61.113, add paragraph (i) to read as follows:
    § 61.113 Private pilot privileges and limitations: Pilot in command.

    (i) A private pilot may act as pilot in command of an aircraft without holding a medical certificate issued under part 67 of this chapter provided the pilot holds a valid U.S. driver's license, meets the requirements of § 61.23(c)(3), and complies with this section and all of the following conditions and limitations:

    (1) The aircraft is authorized to carry not more than 6 occupants, has a maximum takeoff weight of not more than 6,000 pounds, and is operated with no more than five passengers on board; and

    (2) The flight, including each portion of the flight, is not carried out—

    (i) At an altitude that is more than 18,000 feet above mean sea level;

    (ii) Outside the United States unless authorized by the country in which the flight is conducted; or

    (iii) At an indicated airspeed exceeding 250 knots; and

    (3) The pilot has available in his or her logbook—

    (i) The completed medical examination checklist required under § 68.7 of this chapter; and

    (ii) The certificate of course completion required under § 61.23(c)(3).

    7. Add part 68 to subchapter D to read as follows: PART 68—REQUIREMENTS FOR OPERATING CERTAIN SMALL AIRCRAFT WITHOUT A MEDICAL CERTIFICATE Sec. 68.1 Applicability. 68.3 Medical education course requirements. 68.5 Comprehensive medical examination. 68.7 Comprehensive medical examination checklist. 68.9 Special Issuance process. 68.11 Authority to require additional information. Authority:

    49 U.S.C. 106(f), 44701-44703, sec. 2307 of Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note).

    § 68.1 Applicability.

    This part prescribes the medical education and examination requirements for operating an aircraft under § 61.113(i) of this chapter without holding a medical certificate issued under part 67 of this chapter.

    § 68.3 Medical education course requirements.

    (a) The medical education course required to act as pilot in command in an operation under § 61.113(i) of this chapter must—

    (1) Educate pilots on conducting medical self-assessments;

    (2) Advise pilots on identifying warning signs of potential serious medical conditions;

    (3) Identify risk mitigation strategies for medical conditions;

    (4) Increase awareness of the impacts of potentially impairing over-the-counter and prescription drug medications;

    (5) Encourage regular medical examinations and consultations with primary care physicians;

    (6) Inform pilots of the regulations pertaining to the prohibition on operations during medical deficiency and medically disqualifying conditions; and

    (7) Provide the checklist developed by the FAA in accordance with § 68.7.

    (b) Upon successful completion of the medical education course, the following items must be electronically provided to the individual seeking to act as pilot in command under the conditions and limitations of § 61.113(i) of this chapter and transmitted to the FAA—

    (1) A certification of completion of the medical education course, which shall be retained in the individual's logbook and made available upon request, and shall contain the individual's name, address, and airman certificate number;

    (2) A release authorizing single access to the National Driver Register through a designated State Department of Motor Vehicles to furnish to the FAA information pertaining to the individual's driving record;

    (3) A certification by the individual that the individual is under the care and treatment of a physician if the individual has been diagnosed with any medical condition that may impact the ability of the individual to fly, as required under § 61.23(c)(3) of this chapter;

    (4) A form that includes—

    (i) The name, address, telephone number, and airman certificate number of the individual;

    (ii) The name, address, telephone number, and State medical license number of the physician performing the comprehensive medical examination;

    (iii) The date of the comprehensive medical examination; and

    (iv) A certification by the individual that the checklist described in § 68.7 was followed and signed by the physician during the medical examination required by this section; and

    (5) A statement, which shall be signed by the individual certifying that the individual understands the existing prohibition on operations during medical deficiency by stating: “I understand that I cannot act as pilot in command, or any other capacity as a required flight crew member, if I know or have reason to know of any medical condition that would make me unable to operate the aircraft in a safe manner.”.

    § 68.5 Comprehensive medical examination.

    (a) Prior to the medical examination required by § 61.23(c)(3) of this chapter, an individual must—

    (1) Complete the individual's section of the checklist described in § 68.7; and

    (2) Provide the completed checklist to the State-licensed physician performing the medical examination.

    (b) The physician must—

    (1) Conduct the medical examination in accordance with the checklist set forth in § 68.7,

    (2) Check each item specified during the examination; and

    (3) Address, as medically appropriate, every medical condition listed and any medications the individual is taking.

    § 68.7 Comprehensive medical examination checklist.

    The comprehensive medical examination required to conduct operations under § 61.113(i) must include a checklist containing the following:

    (a) A section, for the individual to complete that contains—

    (1) Boxes 3 through 13 and boxes 16 through 19 of the FAA Form 8500-8 (3-99); and

    (2) A signature line for the individual to affirm that—

    (i) The answers provided by the individual on that checklist, including the individual's answers regarding medical history, are true and complete;

    (ii) The individual understands that he or she is prohibited under FAA regulations from acting as pilot in command, or any other capacity as a required flight crew member, if he or she knows or has reason to know of any medical deficiency or medically disqualifying condition that would make the individual unable to operate the aircraft in a safe manner; and

    (iii) The individual is aware of the regulations pertaining to the prohibition on operations during medical deficiency and has no medically disqualifying conditions in accordance with applicable law;

    (b) A section with instructions for the individual to provide the completed checklist to the State-licensed physician performing the comprehensive medical examination required under § 68.5; and

    (c) A section, for the physician to complete, that instructs the physician—

    (1) To perform a clinical examination of—

    (i) Head, face, neck, and scalp;

    (ii) Nose, sinuses, mouth, and throat;

    (iii) Ears, general (internal and external canals), and eardrums (perforation);

    (iv) Eyes (general), ophthalmoscopic, pupils (equality and reaction), and ocular motility (associated parallel movement, nystagmus);

    (v) Lungs and chest (not including breast examination);

    (vi) Heart (precordial activity, rhythm, sounds, and murmurs);

    (vii) Vascular system (pulse, amplitude, and character, and arms, legs, and others);

    (viii) Abdomen and viscera (including hernia);

    (ix) Anus (not including digital examination);

    (x) Skin;

    (xi) G-U system (not including pelvic examination);

    (xii) Upper and lower extremities (strength and range of motion);

    (xiii) Spine and other musculoskeletal;

    (xiv) Identifying body marks, scars, and tattoos (size and location);

    (xv) Lymphatics;

    (xvi) Neurologic (tendon reflexes, equilibrium, senses, cranial nerves, and coordination, etc.);

    (xvii) Psychiatric (appearance, behavior, mood, communication, and memory);

    (xviii) General systemic;

    (xix) Hearing;

    (xx) Vision (distant, near, and intermediate vision, field of vision, color vision, and ocular alignment);

    (xxi) Blood pressure and pulse; and

    (xxii) Anything else the physician, in his or her medical judgment, considers necessary;

    (2) To exercise medical discretion to address, as medically appropriate, any medical conditions identified, and to exercise medical discretion in determining whether any medical tests are warranted as part of the comprehensive medical examination;

    (3) To discuss all drugs the individual reports taking (prescription and nonprescription) and their potential to interfere with the safe operation of an aircraft or motor vehicle;

    (4) To sign the checklist, stating: “I certify that I discussed all items on this checklist with the individual during my examination, discussed any medications the individual is taking that could interfere with his or her ability to safely operate an aircraft or motor vehicle, and performed an examination that included all of the items on this checklist. I certify that I am not aware of any medical condition that, as presently treated, could interfere with the individual's ability to safely operate an aircraft.”; and

    (5) To provide the date the comprehensive medical examination was completed, and the physician's full name, address, telephone number, and State medical license number.

    § 68.9 Special Issuance process.

    (a) General. An individual who has met the qualifications to operate an aircraft under § 61.113(i) of this chapter and is seeking to serve as a pilot in command under that section must have completed the process for obtaining an Authorization for Special Issuance of a Medical Certificate for each of the following:

    (1) A mental health disorder, limited to an established medical history or clinical diagnosis of—

    (i) A personality disorder that is severe enough to have repeatedly manifested itself by overt acts;

    (ii) A psychosis, defined as a case in which an individual—

    (A) Has manifested delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of psychosis; or

    (B) May reasonably be expected to manifest delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of psychosis;

    (iii) A bipolar disorder; or

    (iv) A substance dependence within the previous 2 years, as defined in § 67.307(a)(4) of this chapter.

    (2) A neurological disorder, limited to an established medical history or clinical diagnosis of any of the following:

    (i) Epilepsy;

    (ii) Disturbance of consciousness without satisfactory medical explanation of the cause; or

    (iii) A transient loss of control of nervous system functions without satisfactory medical explanation of the cause.

    (3) A cardiovascular condition, limited to a one-time special issuance for each diagnosis of the following:

    (i) Myocardial infarction;

    (ii) Coronary heart disease that has required treatment;

    (iii) Cardiac valve replacement; or

    (iv) Heart replacement.

    (b) Special rule for cardiovascular conditions. In the case of an individual with a cardiovascular condition, the process for obtaining an Authorization for Special Issuance of a Medical Certificate shall be satisfied with the successful completion of an appropriate clinical evaluation without a mandatory wait period.

    (c) Special rule for mental health conditions. (1) In the case of an individual with a clinically diagnosed mental health condition, the ability to operate an aircraft under § 61.113(i) of this chapter shall not apply if—

    (i) In the judgment of the individual's State-licensed medical specialist, the condition—

    (A) Renders the individual unable to safely perform the duties or exercise the airman privileges required to operate an aircraft under § 61.113(i) of this chapter; or

    (B) May reasonably be expected to make the individual unable to perform the duties or exercise the privileges required to operate an aircraft under § 61.113(i) of this chapter; or

    (ii) The individual's driver's license is revoked by the issuing agency as a result of a clinically diagnosed mental health condition.

    (2) Subject to paragraph (c)(1) of this section, an individual clinically diagnosed with a mental health condition shall certify every 2 years, in conjunction with the certification under § 68.3(b)(3), that the individual is under the care of a State-licensed medical specialist for that mental health condition.

    (d) Special rule for neurological conditions. (1) In the case of an individual with a clinically diagnosed neurological condition, the ability to operate an aircraft under § 61.113(i) of this chapter shall not apply if—

    (i) In the judgment of the individual's State-licensed medical specialist, the condition—

    (A) Renders the individual unable to safely perform the duties or exercise the airman privileges required to operate an aircraft under § 61.113(i) of this chapter; or

    (B) May reasonably be expected to make the individual unable to perform the duties or exercise the privileges required to operate an aircraft under § 61.113(i) of this chapter; or

    (ii) The individual's driver's license is revoked by the issuing agency as a result of a clinically diagnosed neurological condition.

    (2) Subject to paragraph (d)(1) of this section, an individual clinically diagnosed with a neurological condition shall certify every 2 years, in conjunction with the certification under § 68.3(b)(3), that the individual is under the care of a State-licensed medical specialist for that neurological condition.

    § 68.11 Authority to require additional information.

    (a) If the Administrator receives credible or urgent information, including from the National Driver Register or the Administrator's Safety Hotline, that reflects on an individual's ability to safely operate an aircraft under § 61.113(i) of this chapter, the Administrator may require the individual to provide additional information or history so that the Administrator may determine whether the individual is safe to continue operating under that section.

    (b) The Administrator may use credible or urgent information received under paragraph (a) to request an individual to provide additional information or to take actions under 49 U.S.C. 44709(b).

    PART 91—GENERAL OPERATING AND FLIGHT RULES 8. The authority citation for part 91 is revised to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note); articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

    9. In § 91.319, add paragraph (j) to read as follows:
    § 91.319 Aircraft having experimental certificates: Operating limitations.

    (j) No person may operate an aircraft that has an experimental certificate under § 61.113(i) of this chapter unless the aircraft is carrying not more than 6 occupants.

    Issued in Washington, DC, under the authority of 49 U.S.C. 106(f) and Sec. 2307 of Public Law 114-190 on December 22, 2016. Michael P. Huerta, Administrator.
    [FR Doc. 2016-31602 Filed 1-10-17; 11:15 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-8163; Airspace Docket No. 16-ANM-2] Establishment of Class E Airspace, Thermopolis, WY AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E airspace extending upward from 700 feet above the surface at Hot Springs County Airport, Thermopolis, WY, to support the development of Instrument Flight Rules (IFR) operations under standard instrument approach and departure procedures at the airport, for the safety and management of aircraft within the National Airspace System.

    DATES:

    Effective 0901 UTC, March 2, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    History

    On November 4, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace extending upward from 700 feet above the surface at Hot Springs County Airport, Thermopolis, WY. (81 FR 76886) Docket FAA-2016-8163. 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 part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11A, 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 Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 4.8-mile radius of the Hot Springs County Airport, Thermopolis, WY with segments extending to 7 miles southwest of the airport, and 5.5 miles northeast of the airport. This airspace is established to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures developed for the airport.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM WY E5 Thermopolis, WY [New] Hot Springs County Airport, WY (Lat. 43°42′49″ N., long. 108°23′23″ W.) That airspace extending upward from 700 feet above the surface within a 4.8-mile radius of Hot Spring County Airport, and within 4.8 miles each side of the airport 230° bearing extending from the 4.8 mile radius to 7 miles southwest of the airport, and within 1.8 miles each side of the airport 055° bearing extending from the 4.8-mile radius to 5.5 miles northeast of the airport. Issued in Seattle, Washington, on January 4, 2017. Richard Roberts, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2017-00288 Filed 1-10-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF STATE 22 CFR Parts 35, 103, 127 and 138 RIN 1400-AE09 Public Notice: 9828] 2017 Civil Monetary Penalties Inflationary Adjustment AGENCY:

    Department of State.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule is issued to adjust the civil monetary penalties (CMP) for regulatory provisions maintained and enforced by the Department of State. The revised CMP adjusts the amount of civil monetary penalties assessed by the Department of State based on the December 2016 guidance from the Office of Management and Budget. The new amounts will apply only to those penalties assessed on or after the effective date of this rule, regardless of the date on which the underlying facts or violations occurred.

    DATES:

    This final rule is effective on January 11, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Alice Kottmyer, Attorney-Adviser, Office of Management, [email protected] ATTN: Regulatory Change, CMP Adjustments, (202) 647-2318.

    SUPPLEMENTARY INFORMATION:

    The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410 (the 1990 Act), as amended by the Debt Collection Improvement Act of 1996, Public Law 104-134 (the 1996 Act), required the head of each agency to adjust its CMPs for inflation no later than October 23, 1996 and required agencies to make adjustments at least once every four years thereafter. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Section 701 of Public Law 114-74 (the 2015 Act) further amended the 1990 Act by requiring agencies to adjust CMPs, if necessary, pursuant to a “catch-up” adjustment methodology prescribed by the 2015 Act, which mandated that the catch-up adjustment take effect no later than August 1, 2016. Additionally, the 2015 Act required agencies to make annual adjustments to their respective CMPs in accordance with guidance issued by the Office of Management and Budget (OMB).

    Based on these statutes, the Department of State (the Department) published a final rule on June 8, 2016, to implement the “catch-up” provisions (“June 2016 final rule”). See 81 FR 36791.

    On December 16, 2016, OMB notified agencies that the annual cost-of-living adjustment multiplier for 2017, based on the Consumer Price Index, is 1.01636. Additional information may be found in OMB Memorandum M-17-11, which can be found at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf. This final rule amends Department CMPs for fiscal year 2017.

    Within the Department of State (Title 22, Code of Federal Regulations), this rule affects four areas:

    (1) Part 35, which implements the Program Fraud Civil Remedies Act of 1986 (PFCRA), codified at 31 U.S.C. 3801-3812;

    (2) Part 103, which implements the Chemical Weapons Convention Implementation Act of 1998 (CWC Act);

    (3) Part 127, which implements the penalty provisions of sections 38(e), 39A(c), and 40(k) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(e), 2779a(c), 2780(k)); and

    (4) Part 138, which implements Section 319 of Public Law 101-121, codified at 31 U.S.C. 1352, and prohibits recipients of federal contracts, grants, and loans from using appropriated funds for lobbying the Executive or Legislative Branches of the federal government in connection with a specific contract.

    Specific Changes to 22 CFR Made by This Rule I. Part 35

    The PFRCA, enacted in 1986, authorizes agencies, with approval from the Department of Justice, to pursue individuals or firms for false claims. According to the June 2016 final rule, the maximum liability under the PFRCA is $10,781, up to a maximum of $323,442. Applying the 2016 multiplier (1.01636) provided by OMB, the new maximum liabilities are as follows: $10,957, up to a maximum of $328,734.

    II. Part 103

    The CWC Act provided domestic implementation of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. The penalty provisions of the CWC Act are codified at 22 U.S.C. 6761. Based on the June 2016 final rule, a person violating 22 U.S.C. 6761(a)(1)(A), Prohibited acts relating to inspections, is subject to a civil penalty of an amount not to exceed $36,256 for each such violation. A person violating 22 U.S.C. 6761(a)(1)(B), Recordkeeping violations, is subject to a civil penalty in an amount not to exceed $7, 251 for each such violation.

    Applying the 2016 multiplier (1.01636), the new maximum amounts are as follows: Prohibited acts related to inspections, $36,849; for Recordkeeping violations, $7,370.

    III. Part 127

    The Assistant Secretary of State for Political-Military Affairs is responsible for the imposition of CMPs under the International Traffic in Arms Regulations (ITAR), which is administered by the Directorate of Defense Trade Controls (DDTC).

    (1) AECA section 38(e):

    According to the June 2016 final rule, the new maximum penalty under 22 U.S.C. 2778(e), or Section 38(e) of the AECA, is $1,094,010 per violation. Applying the 2016 multiplier (1.01636), the new maximum penalty is $1,111,908.

    (2) AECA section 39A(c):

    According to the June 2016 final rule, the new maximum adjusted penalty for 22 U.S.C. 2779a(c), or Section 39A(c) of the AECA, is $795,445 per violation. Applying the 2016 multiplier (1.01636), the new maximum penalty is $808,458.

    (3) AECA section 40(k):

    According to the June 2016 final rule, the maximum penalty for 22 U.S.C. 2780(k), or Section 40(k) of the AECA, is $946,805 per violation. Applying the 2016 multiplier (1.01636), the new maximum penalty is $962,295.

    IV. Part 138

    Section 319 of Public Law 101-121, codified at 31 U.S.C. 1352, provides penalties for recipients of federal contracts, grants, and loans who use appropriated funds to lobby the Executive or Legislative Branches of the federal government in connection with a specific contract, grant, or loan. Any person who violates that prohibition is subject to a civil penalty. The statute also requires each person who requests or receives a federal contract, grant, cooperative agreement, loan, or a federal commitment to insure or guarantee a loan, to disclose any lobbying; there is a penalty for failure to disclose.

    The June 2016 final rule raised the maximum penalties for both improper expenditures and failure to disclose, to not less than $18,936 and not more than $189,361. Applying the 2016 multiplier (1.01636), the new maximum penalty under 31 U.S.C. 1352 is: not less than $19,246, and not more than $192,459.

    Effective Date of Penalties

    The revised CMP amounts will go into effect on the date this rule is published. All violations for which CMPs are assessed on or after the effective date of this rule, regardless of whether the violation occurred before the effective date, will be assessed at the adjusted penalty level.

    Future Adjustments and Reporting

    The 2015 Act directed agencies to undertake an annual review of CMPs using a formula prescribed by the statute. Annual adjustments to CMPs are made in accordance with the guidance issued by OMB. As in this rulemaking, the Department of State will publish notification of annual inflation adjustments to CMPs in the Federal Register no later than January 15 of each year, with the adjusted amount taking effect immediately upon publication.

    Regulatory Analysis and Notices Administrative Procedure Act

    The Department of State is publishing this rule using the “good cause” exception to the Administrative Procedure Act (5 U.S.C. 553(b)), as the Department has determined that public comment on this rulemaking would be impractical, unnecessary, or contrary to the public interest. This rulemaking is mandatory; it implements Public Law 114-74.

    Regulatory Flexibility Act

    Because this rulemaking is exempt from Section 553 of the Administrative Procedures Act, a Regulatory Flexibility Analysis is not required.

    Unfunded Mandates Reform Act of 1995

    This rule 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.

    Small Business Regulatory Enforcement Fairness Act of 1996

    This rule has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

    Executive Orders 12372 and 13132

    This amendment 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 amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

    Executive Orders 12866 and 13563

    The Department believes that benefits of the rulemaking outweigh any costs, and there are no feasible alternatives to this rulemaking. It is the Department's position that this rulemaking is not an economically significant rule under the criteria of Executive Order 12866, and is consistent with the provisions of Executive Order 13563.

    Executive Order 12988

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

    Executive Order 13175

    The Department of State has 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, Executive Order 13175 does not apply to this rulemaking.

    Paperwork Reduction Act

    This rulemaking does not impose or revise any information collections subject to 44 U.S.C. Chapter 35.

    List of Subjects 22 CFR Part 35

    Administrative practice and procedure, Claims, Fraud, Penalties.

    22 CFR Part 103

    Administrative practice and procedure, Chemicals, Classified information, Foreign relations, Freedom of information, International organization, Investigations, Penalties, Reporting and recordkeeping requirements.

    22 CFR Part 127

    Arms and munitions, Exports.

    22 CFR Part 138

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

    For the reasons set forth above, 22 CFR parts 35, 103, 127, and 138 are amended as follows:

    PART 35—PROGRAM FRAUD CIVIL REMEDIES 1. The authority citation for part 35 continues to read as follows: Authority:

    22 U.S.C. 2651a; 31 U.S.C. 3801 et seq.; Pub. L. 114-74, 129 Stat. 584.

    § 35.3 [Amended]
    2. In § 35.3: a. Remove “$10,781” and add in its place “$10,957”, wherever it occurs. b. In paragraph (f), remove “$323,442” and add in its place “$328,734”. PART 103—REGULATIONS FOR IMPLEMENTATION OF THE CHEMICAL WEAPONS CONVENTION AND THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT OF 1998 ON THE TAKING OF SAMPLES AND ON ENFORCEMENT OF REQUIREMENTS CONCERNING RECORDKEEPING AND INSPECTIONS 3. The authority citation for part 103 continues to read as follows: Authority:

    22 U.S.C. 2651a; 22 U.S.C. 6701 et seq.; Pub. L. 114-74, 129 Stat. 584.

    § 103.6 [Amended]
    4. Amend § 103.6 to remove “$36,256” and add in its place “$36,849” in paragraph (a)(1), and to remove “$7,251” and add in its place “$7,370” in paragraph (a)(2). PART 127—VIOLATIONS AND PENALTIES 5. The authority citation for part 127 continues to read as follows: Authority:

    Sections 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22 U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129; Pub. L. 114-74, 129 Stat. 584.

    § 127.10 [Amended]
    6. Section 127.10 is amended as follows: a. In paragraph (a)(1)(i), remove “$1,094,010” and add in its place “$1,111,908”; b. In paragraph (a)(1)(ii), remove “$795,445” and add in its place “$808,458”; and c. In paragraph (a)(1)(iii), remove “$946,805” and add in its place “962,295.” PART 138—RESTRICTIONS ON LOBBYING 7. The authority citation for part 138 continues to read as follows: Authority:

    22 U.S.C. 2651a; 31 U.S.C. 1352; Pub. L. 114-74, 129 Stat. 584.

    8. Revise the heading of part 138 to read as set forth above.
    § 138.400 [Amended]
    9. Amend § 138.400 by removing “$18,936” and “$189,361” and adding in their place “$19,246” and “$192,459”, respectively, wherever they occur. Dated: January 4, 2017. Alicia Frechette, Executive Director, Office of the Legal Adviser & Bureau of Legislative Affairs, Department of State.
    [FR Doc. 2017-00166 Filed 1-10-17; 8:45 am] BILLING CODE 4710-08-P
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 29 CFR Part 1614 RIN 3046-AA94 Affirmative Action for Individuals With Disabilities in Federal Employment; Correction AGENCY:

    Equal Employment Opportunity Commission.

    ACTION:

    Final rule; correction.

    SUMMARY:

    The Equal Employment Opportunity Commission (EEOC or Commission) is correcting a final rule that appeared in the Federal Register of January 3, 2017 (82 FR 654). The document amended the regulations that require federal agencies to engage in affirmative action for individuals with disabilities, clarifying the obligations that the Rehabilitation Act of 1973 imposes on federal agencies, as employers, that are over and above the obligation not to discriminate on the basis of disability. The document published January 3 neglected to indicate its effective date. This document corrects that omission. The applicability date remains January 3, 2018.

    DATES:

    Effective March 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Kuczynski, Assistant Legal Counsel, (202) 663-4665, or Aaron Konopasky, Senior Attorney-Advisor, (202) 663-4127 (voice), or (202) 663-7026 (TTY), Office of Legal Counsel, U.S. Equal Employment Opportunity Commission. (These are not toll free numbers.) Requests for this document in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 663-4191 (voice) or (202) 663-4494 (TTY). (These are not toll free numbers.)

    SUPPLEMENTARY INFORMATION:

    In FR Doc. 2016-31397 appearing on page 654 in the Federal Register of Tuesday, January 3, 2017, the following correction is made:

    1. On page 654, in the first column, in DATES:, “Effective date: This final rule will be applicable on March 6, 2017.” is corrected to read “Effective date: This final rule will be effective March 6, 2017.”

    Dated: January 5, 2017.

    For the Commission.

    Peggy R. Mastroianni, Legal Counsel.
    [FR Doc. 2017-00340 Filed 1-10-17; 8:45 am] BILLING CODE 6570-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2014-0222; FRL-9956-55-Region 6] Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution From Visible Emissions and Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is approving revisions to the Texas State Implementation Plan (SIP) submitted by the State of Texas that pertain to particulate matter and outdoor burning regulations. The State submitted the SIP revisions in the years 1989, 2004, 2006 and 2014.

    DATES:

    This rule is effective on February 10, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2014-0222. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Randy Pitre, 214-665-7299, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background

    The background for this action is discussed in detail in our proposal at 81 FR 74739 (October 27, 2016). In that document we proposed to approve five Texas SIP revisions that pertain to particulate matter and outdoor burning regulations. We did not receive comments regarding our proposal.

    II. Final Action

    We are approving the Texas SIP revisions dated from 1989, 2004, 2006 and 2014. Specifically, we are approving the August 21, 1989, and June 9, 2006, submittals that repealed Rule 105.2 of the Texas Administrative Code (TAC) (subsequently renumbered as 30 TAC Section 111.155 and repealed). We are also approving the July 18, 2006, submittal that revises 30 TAC Section 111.203. We are also approving the November 15, 2004, and July 18, 2006, submittals that revise 30 TAC Section 111.209. We are also approving the March 3, 2014, submittal that revises 30 TAC Section 111.211.

    III. Incorporation by Reference

    In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the Texas regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 13, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

    Dated: December 28, 2016. Ron Curry, Regional Administrator, Region 6. 40 CFR part 52 is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart SS—Texas 2. In § 52.2270(c) the table titled “EPA Approved Regulations in the Texas SIP” is amended by removing the entry for “Rule 105.2” under Chapter 111, Subchapter A, Division 5 and revising the entries for sections 111.203, 111.209 and 111.211.

    The amendments read as follows:

    § 52.2270 Identification of plan

    (c) * * *

    EPA Approved Regulations in the Texas SIP State citation Title/subject State approval/
  • submittal date
  • EPA approval date Explanation
    *         *         *         *         *         *         * Subchapter B—Outdoor Burning *         *         *         *         *         *         * Section 111.203 Definitions 6/28/2006 1/11/2017, [Insert Federal Register citation] *         *         *         *         *         *         * Section 111.209 Exception for Disposal Fires 6/28/2006 1/11/2017, [Insert Federal Register citation] Section 111.211 Exception for Prescribed Burn 1/15/2014 1/11/2017, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2017-00087 Filed 1-10-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R06-OAR-2016-0275; FRL-9957-57-Region 6] Determination of Nonattainment and Reclassification of the Houston-Galveston-Brazoria 2008 8-Hour Ozone Nonattainment Area; Texas; Correction AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Correcting amendment.

    SUMMARY:

    EPA issued a final rule on December 14, 2016, (81 FR 90207), that determined that the Houston-Galveston-Brazoria, Texas nonattainment area (HGB area) failed to attain the 2008 8-hour ozone national ambient air quality standard (NAAQS) by the applicable attainment deadline of July 20, 2016, and thus was classified by operation of law as “Moderate”. In that action, EPA also determined January 1, 2017 as the deadline by which Texas must submit to the EPA the State Implementation Plan (SIP) revisions that meet the Clean Air Act (CAA) statutory and regulatory requirements that apply to 2008 ozone NAAQS nonattainment areas reclassified as Moderate. The language in the December 14, 2016 Federal Register amended the table in 40 CFR 81.344 (Subpart C-Section 107 Attainment Status Designations) titled “Texas—2008 8-Hour Ozone NAAQS (Primary and secondary)”. The amendatory language failed to update the table for the classification date for HGB nonattainment area to 12/14/2016. This document corrects the listed classification date in the December 14, 2016 final rule document.

    DATES:

    This final rule correction is effective on January 11, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Nevine Salem, (214) 665-7222, [email protected]

    SUPPLEMENTARY INFORMATION:

    EPA issued a final rule on December 14, 2016, (81 FR 90207) (EPA-R06-OAR-2016-0275; FRL-9956-08-Region 6), that reclassified the HGB nonattainment area from Marginal to Moderate for the 2008 8-hour Ozone NAAQS standards. In that document, EPA incorrectly listed the classification date for the HGB ozone nonattainment area in § 81.344, the table titled “Texas—2008 8-Hour Ozone NAAQS (Primary and secondary)” to be 1/13/17. Instead the document should have the classification date in the table as 12/14/2016. This document corrects that mistake.

    List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control.

    Dated: January 3, 2017. Ron Curry, Regional Administrator, Region 6.

    40 CFR part 81 is corrected as follows:

    PART 81-DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 1. The authority citation for part 81 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart C—Section 107 Attainment Status Designations 2. In § 81.344, the table titled “Texas—2008 8-Hour Ozone NAAQS (Primary and secondary)” is amended by revising the entry for “Houston-Galveston-Brazoria, TX” to read as follows:
    § 81.344 Texas. Texas—2008 8-Hour Ozone NAAQS (Primary and Secondary) 2 Designated area Designation Date1 Type Classification Date1 Type *         *         *         *         *         *         * Houston-Galveston-Brazoria, TX: 2 Nonattainment 12/14/2016 Moderate. Brazoria County Chambers County Fort Bend County Galveston County Harris County Liberty County Montgomery County Waller County *         *         *         *         *         *         * 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.
    [FR Doc. 2017-00086 Filed 1-10-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY DEPARTMENT OF DEFENSE 40 CFR Part 1700 [EPA-HQ-OW-2013-0469; FRL-9957-85-OW] RIN 2040-AD39 Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II Batch One AGENCY:

    Environmental Protection Agency and Department of Defense.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Defense (DoD) are promulgating discharge performance standards for 11 discharges incidental to the normal operation of a vessel of the Armed Forces into the navigable waters of the United States, the territorial seas, and the contiguous zone. When implemented, the discharge performance standards will reduce the adverse environmental impacts associated with the vessel discharges, stimulate the development of improved vessel pollution control devices, and advance the development of environmentally sound vessels of the Armed Forces. The 11 discharges addressed by the final rule are the following: aqueous film-forming foam (AFFF), chain locker effluent, distillation and reverse osmosis brine, elevator pit effluent, gas turbine water wash, non-oily machinery wastewater, photographic laboratory drains, seawater cooling overboard discharge, seawater piping biofouling prevention, small boat engine wet exhaust, and welldeck discharges.

    DATES:

    This final rule is effective on February 10, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket No. EPA-HQ-OW-2013-0469. All documents in the docket are listed on the http://regulations.gov Web site. The complete public record for this rulemaking, including responses to comments received during the rulemaking, can be found under Docket No. EPA-HQ-OW-2013-0469.

    FOR FURTHER INFORMATION CONTACT:

    Katherine B. Weiler, Marine Pollution Control Branch (4504T), U.S. EPA, 1200 Pennsylvania Avenue NW., Washington, DC 20460; (202) 566-1280; [email protected], or Mike Pletke, Chief of Naval Operations (N45), 2000 Navy Pentagon (Rm 2D253), Washington, DC 20350-2000; (703) 695-5184; [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Legal Authority for the Final Rule B. Purpose of the Final Rule C. What vessels are regulated by the final rule? D. What is the geographic scope of the final rule? E. Rulemaking Process F. Summary of Public Outreach and Consultation With Federal Agencies, States, Territories, and Tribes G. Supporting Documentation II. UNDS Performance Standards Development A. Nature of the Discharge B. Environmental Effects C. Cost, Practicability, and Operational Impacts D. Applicable U.S. and International Law E. Definitions III. UNDS Performance Standards A. Aqueous Film-Forming Foam B. Chain Locker Effluent C. Distillation and Reverse Osmosis Brine D. Elevator Pit Effluent E. Gas Turbine Water Wash F. Non-Oily Machinery Wastewater G. Photographic Laboratory Drains H. Seawater Cooling Overboard Discharge I. Seawater Piping Biofouling Prevention J. Small Boat Engine Wet Exhaust K. Welldeck Discharges IV. Additional Information in the Final Rule V. Key Changes and Improvements Since the Proposed Rule A. Public Comment B. Endangered Species Act (ESA) Consultation C. Coastal Zone Management Act (CZMA) Consistency Determination D. Development of Performance Standards in Batches E. Revisions to Definitions and Standards VI. Related Acts of Congress and Executive Orders A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Coastal Zone Management Act H. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act K. Endangered Species Act L. Executive Order 13112: Invasive Species M. Executive Order 13089: Coral Reef Protection N. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations O. Congressional Review Act I. General Information A. Legal Authority for the Final Rule

    The EPA and DoD promulgate this rule under the authority of Clean Water Act (CWA) section 312 (33 U.S.C. 1322). Section 325 of the National Defense Authorization Act of 1996 (“NDAA”), entitled “Discharges from Vessels of the Armed Forces” (Pub. L. 104-106, 110 Stat. 254), amended CWA section 312, to require the Administrator of the U.S. Environmental Protection Agency (Administrator) and the Secretary of Defense of the U.S. Department of Defense (Secretary) to develop uniform national standards to control certain discharges incidental to the normal operation of a vessel of the Armed Forces. The term Uniform National Discharge Standards, or UNDS, is used in this preamble to refer to the provisions in CWA section 312(a)(12) through (14) and (n) (33 U.S.C. 1322(a)(12) through (14) and (n)).

    B. Purpose of the Final Rule

    UNDS are intended to enhance the operational flexibility of vessels of the Armed Forces domestically and internationally, stimulate the development of innovative vessel pollution control technology, and advance the development of environmentally sound ships. Section 312(n)(3)(A) of the CWA requires the EPA and DoD to promulgate uniform national discharge standards for certain discharges incidental to the normal operation of a vessel of the Armed Forces (CWA section 312(a)(12)), unless the Secretary finds that compliance with UNDS would not be in the national security interests of the United States (CWA section 312(n)(1)).

    This rule amends title 40 Code of Federal Regulations (CFR) part 1700 to establish discharge performance standards for 11 discharges incidental to the normal operation of a vessel of the Armed Forces from among the 25 discharges for which the EPA and DoD previously determined (64 FR 25126, May 10, 1999) that it is reasonable and practicable to require a marine pollution control device (MPCD). The 11 discharges addressed by this rule are the following: Aqueous film-forming foam; chain locker effluent; distillation and reverse osmosis brine; elevator pit effluent; gas turbine water wash; non-oily machinery wastewater; photographic laboratory drains; seawater cooling overboard discharge; seawater piping biofouling prevention; small boat engine wet exhaust; and welldeck discharges.

    These discharge performance standards do not become enforceable until after promulgation of a final rule, as well as promulgation of regulations by DoD under CWA section 312(n)(5)(C) to govern the design, construction, installation, and use of a MPCD.

    UNDS do not apply to the following discharges from vessels of the Armed Forces: Overboard discharges of rubbish, trash, garbage, or other such materials; sewage; air emissions resulting from the operation of a vessel propulsion system, motor-driven equipment, or incinerator; or discharges that require permitting under the National Pollutant Discharge Elimination System (NPDES) program, including operational discharges and other discharges that are not incidental to the normal operation of a vessel of the Armed Forces.

    C. What vessels are regulated by the final rule?

    The final rule applies to vessels of the Armed Forces. For the purposes of the rulemaking, the term “vessel of the Armed Forces” is defined at CWA section 312(a)(14). “Vessel of the Armed Forces” means any vessel owned or operated by the U.S. Department of Defense (i.e., U.S. Navy, Military Sealift Command, U.S. Marine Corps, U.S. Army, and U.S. Air Force), other than a time- or voyage-chartered vessel, as well as any U.S. Coast Guard vessel designated by the Secretary of the Department in which the U.S. Coast Guard is operating. The preceding list is not intended to be exhaustive, but rather provides a guide for the reader regarding the vessels of the Armed Forces to be regulated by the final rule. The final rule does not apply to commercial vessels; private vessels; vessels owned or operated by state, local, or tribal governments; vessels under the jurisdiction of the U.S. Army Corps of Engineers; certain vessels under the jurisdiction of the U.S. Department of Transportation; vessels preserved as memorials and museums; vessels under construction; vessels in drydock; amphibious vehicles; and, as noted above, time- or voyage-chartered vessels. For answers to questions regarding the applicability of this action to a particular vessel, consult one of the contacts listed in the FOR FURTHER INFORMATION CONTACT section.

    D. What is the geographic scope of the final rule?

    This rule is applicable to discharges from a vessel of the Armed Forces operating in the navigable waters of the United States, territorial seas, and the contiguous zone (CWA section 1322(n)(8)(A)). The rule applies in both fresh and marine waters and can include bodies of water such as rivers, lakes, and oceans. Together, the preamble refers to these waters as “waters subject to UNDS.”

    Sections 502(7), 502(8), and 502(9) of the CWA define the term “navigable waters,” “territorial seas,” and “contiguous zone,” respectively. The term “navigable waters” means waters of the United States including the territorial seas, where the United States includes the states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands. The term “territorial seas” means the belt of seas that generally extends three miles seaward from the line of ordinary low water along the portion of the coast in direct contact with the open sea and the line marking the seaward limit of inland waters. The term “contiguous zone” means the entire zone established or to be established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone. Generally, the contiguous zone extends seaward for the next nine miles (i.e., from three to 12 miles from the U.S. coastline). The final rule is not applicable seaward of the contiguous zone.

    E. Rulemaking Process

    The UNDS rulemaking is a joint rulemaking between the EPA and DoD and is under development in three phases. The first two phases reflect joint rulemaking between the EPA and DoD; the third phase is a DoD-only rule.

    Phase I

    The EPA and DoD promulgated the Phase I regulations on May 10, 1999 (64 FR 25126), and these existing regulations are codified at 40 CFR part 1700. During Phase I, the EPA and DoD identified the discharges incidental to the normal operation of a vessel of the Armed Forces for which it is reasonable and practicable to require control with a MPCD to mitigate potential adverse impacts on the marine environment (CWA section 312(n)(2)), as well as those discharges for which it is not. Section 312(a)(13) of the CWA defines a MPCD as any equipment or management practice, for installation or use on a vessel of the Armed Forces, that is designed to receive, retain, treat, control, or discharge a discharge incidental to the normal operation of a vessel; and determined by the Administrator and the Secretary to be the most effective equipment or management practice to reduce the environmental impacts of the discharge consistent with the considerations set forth by UNDS.

    During Phase I, the EPA and DoD identified the following 25 discharges as requiring control with a MPCD: Aqueous film-forming foam; catapult water brake tank and post-launch retraction exhaust; chain locker effluent; clean ballast; compensated fuel ballast; controllable pitch propeller hydraulic fluid; deck runoff; dirty ballast; distillation and reverse osmosis brine; elevator pit effluent; firemain systems; gas turbine water wash; graywater; hull coating leachate; motor gasoline and compensating discharge; non-oily machinery wastewater; photographic laboratory drains; seawater cooling overboard discharge; seawater piping biofouling prevention; small boat engine wet exhaust; sonar dome discharge; submarine bilgewater; surface vessel bilgewater/oil-water separator effluent; underwater ship husbandry; and welldeck discharges (40 CFR 1700.4).

    During Phase I, the EPA and DoD identified the following 14 discharges as not requiring control with a MPCD: Boiler blowdown; catapult wet accumulator discharge; cathodic protection; freshwater layup; mine countermeasures equipment lubrication; portable damage control drain pump discharge; portable damage control drain pump wet exhaust; refrigeration/air conditioning condensate; rudder bearing lubrication; steam condensate; stern tube seals and underwater bearing lubrication; submarine acoustic countermeasures launcher discharge; submarine emergency diesel engine wet exhaust; and submarine outboard equipment grease and external hydraulics.

    As of the effective date of the Phase I rule (June 9, 1999), neither states nor political subdivisions of states may adopt or enforce any state or local statutes or regulations with respect to the 14 discharges that were identified as not requiring control, except to establish no-discharge zones (CWA sections 312(n)(6)(A) and 312(n)(7)). However, section 312(n)(5)(D) of the CWA authorizes a Governor of any state to submit a petition to the EPA and DoD and requesting the re-evaluation of a prior determination that a MPCD is required for a particular discharge (40 CFR 1700.4) or that a MPCD is not required for a particular discharge (40 CFR 1700.5), if there is significant new information not considered previously, that could reasonably result in a change to the determination (CWA section 312(n)(5)(D) and 40 CFR 1700.11).

    Phase II

    Section 312(n)(3) of the CWA provides for Phase II and requires the EPA and DoD to develop federal discharge performance standards for each of the 25 discharges identified in Phase I as requiring control. In doing so, the EPA and DoD are required to consult with the Department in which the U.S. Coast Guard is operating, the Secretary of Commerce, interested states, the Secretary of State, and other interested federal agencies. In promulgating Phase II discharge performance standards, CWA section 312(n)(2)(B) directs the EPA and DoD to consider seven factors: The nature of the discharge; the environmental effects of the discharge; the practicability of using the MPCD; the effect that installation or use of the MPCD would have on the operation or the operational capability of the vessel; applicable U.S. law; applicable international standards; and the economic costs of installation and use of the MPCD. Section 312(n)(3)(C) of the CWA further provides that the EPA and DoD may establish discharge standards that (1) distinguish among classes, types, and sizes of vessels; (2) distinguish between new and existing vessels; and (3) provide for a waiver of applicability of standards as necessary or appropriate to a particular class, type, age, or size of vessel.

    The EPA and DoD developed a process to establish the Phase II discharge performance standards in three batches (three separate rulemakings). The first batch of discharge performance standards was proposed on February 3, 2014 (79 FR 6117) and addressed 11 of the 25 discharges identified as requiring control (64 FR 25126). A notice of proposed rulemaking for the second batch of discharge performance standards was published on October 7, 2016 (81 FR 69753) and addressed 11 additional discharges identified as requiring control (64 FR 25126). The third batch of discharge performance standards that will address the remaining three discharges will be proposed in a separate rule.

    In developing the Phase II discharge performance standards, the EPA and DoD reference the 2013 NPDES Vessel General Permit and the 2014 NPDES Small Vessel General Permit (hereinafter referred to collectively as the NPDES VGPs) as the baseline for each comparable discharge incidental to the normal operation of a vessel of the Armed Forces (78 FR 21938, April 12, 2013 and 79 FR 53702, September 10, 2014). The NPDES VGPs provide for CWA authorization of discharges incidental to the normal operation of non-military and non-recreational vessels extending to the outer reach of the three-mile territorial sea as defined in CWA section 502(8). The NPDES VGPs include effluent limits that are based on both the technology available to treat pollutants (i.e., technology-based effluent limitations), and limits that would be protective of the designated uses of the receiving waters (i.e., water quality-based effluent limits), including both non-numeric and numeric limitations. Additional information on NPDES permitting can be found on-line at http://www.epa.gov/npdes/.

    Using the NPDES VGPs as a baseline for developing the performance standards for discharges incidental to the normal operation of a vessel of the Armed Forces allowed the EPA and DoD to maximize the use of the EPA's scientific and technical work developed to support the NPDES VGPs. The NPDES VGPs technology-based and water quality-based effluent limitations were then adapted, as appropriate, for the relevant discharges from vessels of the Armed Forces.

    Phase III

    Phase III of UNDS requires DoD, in consultation with the EPA and the Secretary of the Department in which the U.S. Coast Guard is operating, within one year of finalization of the Phase II standards, to promulgate regulations governing the design, construction, installation, and use of MPCDs necessary to meet the discharge performance standards. DoD will implement the Phase III regulations under the authority of the Secretary as a DoD publication. The Phase III regulations will be publicly released and are expected to be made available on the Defense Technical Information Center Web site: http://www.dtic.mil/whs/directives/. Similar to Phase II, Phase III will be promulgated in three batches.

    Following the effective date of regulations under Phase III, it will be unlawful for a vessel of the Armed Forces to operate within waters subject to UNDS if the vessel is not equipped with a MPCD that meets the Phase II standards (CWA section 312 (n)(7)). It also will be unlawful for a vessel of the Armed Forces to discharge a regulated UNDS discharge into an UNDS no-discharge zone (i.e., waters where a prohibition on a discharge has been established) (CWA section 312(n)(8)). Any person in violation of this requirement shall be liable to a civil penalty of not more than $5,000 for each violation (CWA section 312(j)). The Secretary of the Department in which the U.S. Coast Guard is operating shall enforce these provisions and may utilize law enforcement officers, EPA personnel and facilities, other federal agencies, or the states to carry out these provisions. States may also enforce these provisions (CWA section 312(k) and (n)(9)).

    In addition, as of the effective date of the Phase III regulations, neither a state nor political subdivision a of state may adopt or enforce any state or local statute or regulation with respect to discharges identified as requiring control, except to establish no-discharge zones (CWA section 312(n)(6)). CWA section 312(n)(7) provides for the establishment of no-discharge zones either (1) by state prohibition after application and a determination by the EPA, or (2) directly by EPA prohibition. The Phase I UNDS regulations established the criteria and procedures for establishing UNDS no-discharge zones (40 CFR 1700.9 and 40 CFR 1700.10).

    If a state determines that the protection and enhancement of the quality of some or all of its waters require greater environmental protection, the state may prohibit one or more discharges incidental to the normal operation of a vessel of the Armed Forces, whether treated or not, into those waters (40 CFR 1700.9). A state prohibition does not apply until after the Administrator determines that (1) the protection and enhancement of the quality of the specified waters within the state require a prohibition of the discharge into the waters; (2) adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and (3) the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the federal government, or the military function, of the vessel (40 CFR 1700.9(b)(2)).

    Alternatively, a state may request that the EPA prohibit, by regulation, the discharge of one or more discharges incidental to the normal operation of a vessel of the Armed Forces, whether treated or not, into specified waters within a state (40 CFR 1700.10). In this case, the EPA would make a determination that the protection and enhancement of the quality of the specified waters requires a prohibition of the discharge. As with the application of a state prohibition described above, the Administrator would need to determine that (1) the protection and enhancement of the quality of the specified waters within the state require a prohibition of the discharge into the waters; (2) adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and (3) the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the federal government, or the military function, of the vessel (40 CFR 1700.9(b)(2)). The EPA may not, however, disapprove a state application for this latter type of prohibition for the sole reason that there are not adequate facilities for the safe and sanitary removal of such discharges (CWA section 312(n)(7)(B)(ii) and 40 CFR 1700.10(b)).

    The statute also requires the EPA and DoD to review the determinations and standards every five years and, if necessary, to revise them based on significant new information. Specifically, CWA section 312(n)(5)(A) and (B) contain provisions for reviewing and modifying both of the following determinations: (1) Whether control should be required for a particular discharge, and (2) the substantive standard of performance for a discharge for which control is required. A Governor also may petition the Administrator and the Secretary to review a UNDS determination or standard if there is significant new information, not considered previously, that could reasonably result in a change to the determination or standard (CWA section 312(n)(5)(D) and 40 CFR 1700.11).

    F. Summary of Public Outreach and Consultation With Federal Agencies, States, Territories, and Tribes

    During the development of the rule, the EPA and DoD consulted with other federal agencies, states, and tribes regarding the reduction of adverse environmental impacts associated with discharges from vessels of the Armed Forces; development of innovative vessel pollution control technology; and advancement of environmentally sound vessels of the Armed Forces. In addition, the EPA and DoD reviewed comments on the NPDES VGPs.

    G. Supporting Documentation

    This rule is supported by “Technical Development Document (TDD) Phase I Uniform National Discharge Standards (UNDS) for Vessels of the Armed Forces,” the UNDS Phase I rules, the “Final 2013 Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (VGP),” the “Vessel General Permit (VGP) Fact Sheet,” the “Final Small Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels Less Than 79 Feet (sVGP),” the “Small Vessel General Permit (sVGP) Fact Sheet,” the “Economics and Benefits Analysis of the Final 2013 Vessel General Permit (VGP),” the “Economics and Benefits Analysis of the Final 2013 Small Vessel General Permit (sVGP),” the “February 2014 Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II,” the “Report to Congress: Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and Other Non-Recreational Vessels Less than 79 Feet,” the “Environmentally Acceptable Lubricants,” the “Biological Evaluation for the Uniform National Discharge Standards (UNDS) Program Phase II Batch One,” and the “National Consistency Determination: Uniform National Discharge Standards (UNDS) Program for Phase II Batch One Discharges.” These documents are available from the EPA Water Docket, Docket No. EPA-HQ-OW-2013-0469 (Email: [email protected]; Phone Number: (202) 566-2426; Mail: Water Docket, Mail Code: 2822-IT, 1200 Pennsylvania Avenue NW., Washington, DC 20460; or Online: http://www.regulations.gov). The NPDES VGPs background documents also are available online: https://www.epa.gov/npdes/vessels.

    II. UNDS Performance Standards Development

    During the development of the discharge performance standards, the EPA and DoD analyzed the information from the Phase I of UNDS, considered the relevant language in the NPDES VGPs effluent limitations, and took into the consideration the seven statutory factors listed in CWA section 312(n)(2)(B). These seven statutory factors are: The nature of the discharge; the environmental effects of the discharge; the practicability of using the MPCD; the effect that installation or use of the MPCD would have on the operation or operational capability of the vessel; applicable U.S. law; applicable international standards; and the economic costs of the installation and use of the MPCD. The EPA and DoD determined that the NPDES VGPs effluent limitations, which include technology-based and water quality-based effluent limitations, provide a sound basis to serve as a baseline for developing the discharge performance standards for the 11 discharges in this rule. The subsections below outline the EPA and DoD's approach to considering the seven statutory factors listed in CWA section 312(n)(2)(B).

    A. Nature of the Discharge

    During Phase I, the EPA and DoD gathered information on the discharges incidental to the normal operation of a vessel of the Armed Forces and developed nature of the discharge reports. The nature of the discharge reports discuss how the discharge is generated, volumes and frequencies of the generated discharge, where the discharge occurs, and the constituents present in the discharge. In addition, the EPA and DoD reviewed relevant discharge information in the supporting documentation of the NPDES VGPs. The EPA and DoD briefly describe the nature of each of the 11 discharges below; however, the complete nature of the discharge reports can be found in Appendix A of the Technical Development Document—EPA 821-R-99-001.

    B. Environmental Effects

    Discharges incidental to the normal operation of a vessel of the Armed Forces have the potential to negatively impact the aquatic environment. The discharges contain a wide variety of constituents that have the potential to negatively impact aquatic species and habitats. These discharges can cause thermal pollution and can contain aquatic nuisance species (ANS), nutrients, bacteria and pathogens (e.g., E. coli and fecal coliforms), oil and grease, metals, most conventional pollutants (e.g., organic matter, bicarbonate, and suspended solids), and other toxic and non-conventional pollutants with toxic effects. While it is unlikely that these discharges would cause an acute or chronic exceedance of the EPA recommended water quality criteria across a large water body, these discharges have the potential to cause adverse environmental impacts on a more localized scale due to the end-of-pipe nature of the discharges. For each of the 11 discharges below, the EPA and DoD discuss the constituents of concern released into the environment and potential water quality impacts. The discharge performance standards will reduce the discharge of constituents of concern and mitigate the environmental risks to the receiving waters.

    C. Cost, Practicability, and Operational Impacts

    The universe of vessels of the Armed Forces affected by the rule encompasses more than 6,000 vessels distributed among the U.S. Navy, Military Sealift Command, U.S. Coast Guard, U.S. Army, U.S. Marine Corps, and U.S. Air Force. These vessels range in design and size from small boats with lengths of less than 20 feet for coastal operations, to aircraft carriers with lengths of over 1,000 feet for global operations. Approximately 80 percent of the vessels of the Armed Forces are less than 79 feet in length. Larger vessels (i.e., vessels with length greater than or equal to 79 feet) comprise 20 percent of the vessels of the Armed Forces. The EPA and DoD considered vessel class, type, and size when developing the discharge standards, as not all vessels of the Armed Forces have the same discharges. For more information on the various vessel classes, characteristics, and missions, see Appendix A.

    The EPA and DoD assessed the relative costs, practicability, and operational impacts of the rule by comparing current operating conditions and practices of vessels of the Armed Forces with the anticipated operating conditions and practices that will be required to meet the discharge performance standards. The EPA and DoD determined that the discharge performance standards applicable to operating conditions and practices for the 11 discharges will only result in a marginal increase in performance costs, practicability, and operational impacts.

    D. Applicable U.S. and International Law

    The EPA and DoD reviewed U.S. laws and international standards that would be relevant to discharges incidental to the normal operation of a vessel of the Armed Forces. A number of U.S. environmental laws include specific provisions for federal facilities and properties that may result in different environmental requirements for federal and non-federal entities. Similarly, many international treaties do not apply to vessels of the Armed Forces either because vessels of the Armed Forces are entitled to sovereign immunity under international law or because any particular treaty may apply different approaches to the adoption of appropriate environmental control measures consistent with the objects and purposes of such treaties. The EPA and DoD incorporated any relevant information in the development of the discharge standards after reviewing the requirements of the following treaties and domestic implementing legislation, as well as other relevant and potentially applicable U.S. environmental laws: International Convention for the Prevention of Pollution from Ships (also referred to as MARPOL); International Convention on the Control of Harmful Anti-Fouling Systems on Ships; Act to Prevent Pollution from Ships; CWA section 311, as amended by the Oil Pollution Control Act of 1990; CWA section 402 and the National Pollutant Discharge Elimination System Vessel General Permit and small Vessel General Permit; Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); Hazardous Materials Transportation Act; Title X of the Coast Guard Authorization Act of 2010; National Marine Sanctuaries Act; Antiquities Act of 1906; Resource Conservation and Recovery Act; Toxic Substances Control Act; and the St. Lawrence Seaway Regulations.

    E. Definitions

    The EPA and DoD added UNDS definitions to 40 CFR part 1700. Specifically, this rule defines the terms: Bioaccumulative; biodegradable; environmentally acceptable lubricants; federally-protected waters; hazardous material; minimally-toxic; not bioaccumulative; person in charge; toxic materials; and waters subject to UNDS.

    III. UNDS Performance Standards

    This section describes the performance standards determined to be reasonable and practicable to mitigate the adverse impacts to the marine environment for the 11 discharges. In developing these standards, the EPA and DoD considered the information from Phase I of UNDS, the NPDES VGPs effluent limitations, and the seven statutory factors listed in CWA section 312(n)(2)(B). For more information on each discharge included in this rule, please see the Phase I Uniform National Discharge Standards for Vessels of the Armed Forces: Technical Development Document; EPA 821-R-99-001.

    The 11 discharge performance standards described in each section below apply to vessels of the Armed Forces operating within waters subject to UNDS, except as otherwise expressly excluded in the “exceptions” in 40 CFR 1700.39. In addition, if two or more regulated discharge streams are combined prior to discharge, then the resulting discharge would need to meet the discharge performance standards applicable to each of the discharges that are being combined (40 CFR 1700.40). Furthermore, recordkeeping (40 CFR 1700.41) and non-compliance reporting (40 CFR 1700.42) apply generally to each discharge performance standard unless expressly provided in a particular discharge performance standard.

    A. Aqueous Film-Forming Foam

    The EPA and DoD prohibit the discharge of AFFF (i.e., AFFF used during training, testing, or maintenance operations) for vessels that sail seaward of waters subject to UNDS at least once per month. For vessels that do not sail seaward of waters subject to UNDS at least once per month, discharges of fluorinated AFFF are prohibited and discharges of non-fluorinated or alternative foaming agent are prohibited in port or in or near federally-protected waters, and must occur as far from shore as possible.

    B. Chain Locker Effluent

    The EPA and DoD require that all anchor chains from surface vessels (submarines are not subject to this requirement) must be carefully and thoroughly washed down (i.e., more than a cursory rinse) as they are being hauled out of the water to remove sediment and organisms. The EPA and DoD also require that all chain lockers must be cleaned periodically to eliminate accumulated sediments and any potential accompanying pollutants. The dates of all chain locker inspections must be recorded in the ship's log or other vessel recordkeeping documentation.

    In addition, the EPA and DoD prohibit the rinsing or pumping out of chain lockers for vessels that sail seaward of waters subject to UNDS at least once per month. For vessels that do not sail seaward of waters subject to UNDS at least once per month, the rinsing or pumping out of chain lockers must occur as far from shore as possible and, if technically feasible, must not occur in federally-protected waters.

    C. Distillation and Reverse Osmosis Brine

    The EPA and DoD prohibit the discharge of the distillation and reverse osmosis brine and the discharge of reverse osmosis reject water if it comes in contact with machinery or industrial equipment (other than distillation or reverse osmosis machinery), toxic or hazardous materials, or wastes.

    D. Elevator Pit Effluent

    The EPA and DoD prohibit the direct discharge of elevator pit effluent. Notwithstanding the prohibition of direct discharges of elevator pit effluent, elevator pit effluent can be discharged when commingled with another discharge for the purposes of treatment prior to discharge; under no circumstances may oils, including oily mixtures, be discharged from that combined discharge in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., International Organization for Standardization (ISO) Method 9377) or U.S. Coast Guard, or are otherwise harmful to the public health or welfare of the United States.

    E. Gas Turbine Water Wash

    The EPA and DoD prohibit the direct discharge of gas turbine water wash. To the greatest extent practicable, gas turbine water wash must be collected separately and disposed of onshore in accordance with any applicable solid waste and hazardous substance management and disposal requirements. Notwithstanding the prohibition of direct discharges of gas turbine water wash overboard, if gas turbine water wash is commingled with any other discharge for the purposes of treatment prior to discharge, then under no circumstances may oils, including oily mixtures, be discharged from that combined discharge in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard, or are otherwise harmful to the public health or welfare of the United States.

    F. Non-Oily Machinery Wastewater

    The EPA and DoD require that discharges of non-oily machinery wastewater must not contain any additives that are toxic or bioaccumulative in nature. In addition, under no circumstances may oils, including oily mixtures be discharged in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard, or otherwise are harmful to the public health or welfare of the United States.

    G. Photographic Laboratory Drains

    The EPA and DoD prohibit the discharge of photographic laboratory drain effluent.

    H. Seawater Cooling Overboard Discharge

    The EPA and DoD require that non-contact engine cooling water, hydraulic system cooling water, refrigeration cooling water, and other seawater cooling overboard discharges be minimized, to the greatest extent practicable, when the vessel is in port. In addition, the standard provides for the reduction in production and discharge of seawater cooling overboard by urging the use of shore power in port if: (1) Shore power is readily available; (2) shore-based power supply systems are capable of providing the needed electricity; and (3) the vessel is equipped to connect to shore-based power. Specifically, the EPA and DoD require that, for vessels that are less than 79 feet in length, fouling organisms must be removed from seawater piping on a regular basis and the discharge of such removed organisms is prohibited. For vessels that are greater than or equal to 79 feet in length, maintenance of all piping and seawater cooling systems must meet the requirements of 40 CFR 1700.32 (Seawater Piping Biofouling Prevention) and fouling organisms removed from seawater piping must not be discharged. Submarines have suction clearing procedures, which must be performed for vessel safety purposes; therefore, submarines are not required to meet these operational removal requirements.

    I. Seawater Piping Biofouling Prevention

    The EPA and DoD require a performance standard for seawater piping biofouling prevention that minimizes, to the greatest extent practicable, the amount of biofouling chemicals (e.g., chlorine) used to keep fouling under control. Fouling organisms must be removed from seawater piping on a regular basis. Fouling organisms removed during a cleaning event are prohibited from being discharged. For all vessels, except submarines, the discharge of fouling organisms removed during cleanings is prohibited.

    Lastly, this performance standard requires practices consistent with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136 et seq.) registration requirements for chemicals used to control biofouling of seawater piping, and prohibits the discharge of pesticides or chemicals banned for use in the United States.

    J. Small Boat Engine Wet Exhaust

    The EPA and DoD require that low sulfur or alternative fuels be used to the greatest extent practicable. In addition, the performance standard requires that, to the greatest extent practicable, four-stroke engines be used instead of two-stroke engines. Vessels using two-stroke engines are required to use environmentally acceptable lubricants (found in the definitions for this term at 40 CFR 1700.3) unless such use would be technologically infeasible. If technologically infeasible, the use and justification for the use of a non-environmentally acceptable lubricant must be recorded in the vessel recordkeeping documentation.

    K. Welldeck Discharges

    The EPA and DoD prohibit welldeck discharges containing graywater from smaller vessels. In addition, discharges containing washdown of gas turbine engines within nautical miles of the United States is prohibited and, to the greatest extent practicable, must be discharged seaward of waters subject to UNDS. Welldeck discharges from equipment and vehicle washdowns need to be free from garbage, and must not contain oil in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines, or contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard, or otherwise are harmful to the public health or welfare of the United States.

    IV. Additional Information in the Final Rule

    This section provides an overview of the additional amendments for 40 CFR part 1700. These changes include an amendment to subsections referenced Effect (section 1700.2), a provision that authorizes certain discharges notwithstanding the performance standards in situations where vessel safety or lives are endangered (section 1700.39), a provision that requires combined discharge streams to meet the requirements applicable to all discharge streams that are combined (section 1700.40), a requirement for recordkeeping (section 1700.41), and a requirement to report instances of non-compliance with MPCD performance standards (section 1700.42).

    1. Amendment to Subsections Referenced in Section 1700.2 Effect

    The EPA and DoD amend the reference sections noted in the Effect Section 1700.2 (a) by amending “Federal standards of performance for each required Marine Pollution Control Device are listed in section 1700.14” to “Federal standards of performance for each required Marine Pollution Control Device are listed in sections 1700.14 through 1700.38. Federal standards of performance apply to all vessels, whether existing or new, and regardless of vessel class, type, or size, unless otherwise expressly provided in sections 1700.14 through 1700.38.”

    2. Reservation of Sections

    As noted previously, the EPA and DoD are proposing the Phase II standards in three batches. For the purpose of proposing the remaining batches, this rule reserves the following sections for those future rulemaking actions:

    Section 1700.17 Clean Ballast; Section 1700.18 Compensated Fuel Ballast; Section 1700.21 Dirty Ballast; 3. Section 1700.39 Exceptions

    The EPA and DoD add an “Exceptions” subsection at section 1700.39, which provides a place to identify certain excluded discharges from the scope of UNDS, notwithstanding the performance standards, in situations where vessel safety or lives are endangered. The section also identifies requirements for maintaining records of all discharge exceptions.

    4. Section 1700.40 Commingling of Discharges

    The EPA and DoD add a “Commingling of Discharges” subsection at section 1700.40. By adding this subsection, the EPA and DoD stipulate that if two or more regulated discharge streams are combined into one, the resulting discharge stream must meet the requirements applicable to all discharge streams that are combined prior to discharge unless otherwise specified by the specific discharge standard.

    5. Section 1700.41 Records

    The EPA and DoD add a “Records” subsection at section 1700.41. By adding this subsection, the EPA and DoD include recordkeeping requirements that shall document all inspections, instances of non-compliance, and instances of an exception.

    6. Section 1700.42 Non-Compliance Reports

    The EPA and DoD add a “Non-Compliance Reports” subsection at section 1700.42. By adding this subsection, the EPA and DoD include reporting requirements for any non-compliance with performance standards prescribed for this Part.

    V. Key Changes and Improvements Since the Proposed Rule A. Public Comment

    On February 3, 2014, the EPA and DoD published proposed discharge performance standards for the 11 discharges in Batch One. The proposed rule established a public comment period of 60 days that closed on April 4, 2014. The public had the option of submitting comments by email, mail, hand delivery, or electronically via the Federal eRulemaking Portal (www.regulations.gov). The public comments are available for public viewing in the docket under Docket No. EPA-HQ-OW-2013-0469.

    The EPA and DoD consider the public comment period vital to creating a rule that is effective at meeting regulatory standards and also is readily understandable and useful to the public. The EPA and DoD received one comment on the proposed rule regarding some of the terms and definitions used in the UNDS Phase II Batch One Proposed Rule. The comment noted that the definitions used in the UNDS proposed rule were slightly different than the definitions used in the NPDES VGP and could potentially cause confusion in production and sales of certain goods, such as lubricants, that are widely used on both commercial vessels and vessels of the Armed Forces. The EPA and DoD agreed with the comment and incorporated changes to the following definitions in Section 1700.3 of this final rule:

    Aquatic Toxicity: The EPA and DoD define and use the term “minimally-toxic,” found in the final 2013 VGP, rather than the “non-toxic” terminology used in the UNDS Phase II Batch One proposed rule.

    Bioaccumulation: The proposed UNDS rule defines “bioaccumulative” as determined by test methods; this is not consistent with the “not bioaccumulative” definition used in the 2013 VGP for lubricants. The 2013 VGP does not require bioaccumulation testing of biodegradable portions of lubricants as, by definition, they will not persist and accumulate in the environment. This final rule revises the term “bioaccumulative” to be consistent with the final 2013 VGP.

    Biodegradability: In the proposed rule, the EPA and DoD proposed testing the biodegradability of mixtures. However, to increase consistency with the terms and definitions found in the final 2013 VGP, the EPA and DoD use the definition of biodegradability established in the final 2013 VGP in place of the definition presented in the UNDS Phase II Batch One proposed rule. The VGP does not require testing the biodegradability of mixtures.

    B. Endangered Species Act (ESA) Consultation

    Pursuant to Section 7(a)(2) of the Endangered Species Act (ESA) the EPA and DoD consulted the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively “the Services.” The Biological Evaluation developed by the EPA and DoD concluded that the issuance of the Batch One final rule for the Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II is not likely to adversely affect listed or proposed species or adversely modify designated or proposed critical habitat.

    C. Coastal Zone Management Act (CZMA) Consistency Determination

    Pursuant to Section 307 of the CZMA, the EPA and DoD have determined that the performance standards are consistent to the maximum extent practicable with the enforceable policies of federally-approved coastal state and territory Coastal Management Plans (CMPs) for the coastal zones including state waters where discharges from vessels of the Armed Forces would be regulated by UNDS. Following proposal of the Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II issued on February 3, 2014, the EPA and DoD provided 34 states and territories with the EPA and DoD's August 2016 “National Consistency Determination: Uniform National Discharge Standards (UNDS) Program for Phase II Batch One Discharges.”

    D. Development of Performance Standards in Batches

    The EPA and DoD are modifying the batch process. In the proposed rule, the EPA and DoD indicated that Phase II—the establishment of discharge performance standards—would be completed in two batches. The EPA and DoD have since determined to develop the discharge performance standards in three batches to allow for more time to collect and incorporate additional information into the development of the discharge performance standards.

    E. Revisions to Definitions and Standards

    The EPA and DoD are modifying the definitions and standards to make them more clear and concise, in addition to changes made due to the public and federal comments. The non-substantive changes made to the definitions and standards are intended to clarify, simplify, and/or improve understanding and readability of the discharge performance standards. There are no technical changes to the definitions or standards.

    VI. Related Acts of Congress and Executive Orders

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act

    This action does not impose any new information collection burden, as the EPA and DoD have determined that Phase II of UNDS does not create any additional collection of information beyond that already mandated under the Phase I of UNDS. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR part 1700) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2040-0187. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

    C. Regulatory Flexibility Act (RFA)

    We certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in CWA section 312 without the exercise of any policy discretion by the EPA.

    E. Executive Order 13132: Federalism

    The EPA and DoD concluded that the rule, once finalized in Phase III, will have federalism implications. Once the discharge performance standards are promulgated in Phase III by DoD, adoption and enforcement of new or existing state or local regulations for the discharges will be preempted.

    Accordingly, the EPA and DoD provide the following federalism summary impact statement. During Phase I of UNDS, the EPA and DoD conducted two rounds of consultation meetings (i.e., outreach briefings) to allow states and local officials to have meaningful and timely input into the development of the rulemaking. Twenty-two states accepted the offer to be briefed on UNDS and discuss state concerns. The EPA and DoD provided clarification on the technical aspects of the UNDS process, including preliminary discharge determinations and analytical information supporting decisions to control or not control discharges. State representatives were provided with discharge summaries containing the description, analysis, and preliminary determination of each of the 39 discharges from vessels of the Armed Forces—25 of which were determined to require control.

    During Phase II, the EPA and DoD consulted again with state representatives early in the process of developing the regulation to allow them to have meaningful and timely input into the development of the discharge standards. On March 14, 2013, the EPA held a Federalism consultation briefing in Washington, DC, which was attended by representatives from the National Governors Association, the National Conference of State Legislatures, the National League of Cities, the National Association of Counties, the United States Conference of Mayors, the County Executives of America, the Environmental Council of States, the Association of Clean Water Administrators, two U.S. states and one U.S. territory, in order to obtain meaningful and timely input in the development of the proposed discharge standards. The EPA and DoD informed the state representatives that the two agencies planned to use the NPDES VGPs effluent limitations as a baseline for developing the discharge performance standards for the 25 discharges identified in Phase I as requiring control.

    Pursuant to the terms of Executive Order 13132, as well as EPA policy for implementing it, a federalism summary impact statement is required to summarize not only the issues and concerns raised by state and local government commenters during the course of the rule's development, but also to describe how and the extent to which the agencies addressed those concerns. No formal, substantive comments were received from state and local government entities during the course of developing this action.

    As required by section 8(a) of Executive Order 13132, the EPA included a certification from its Federalism Official stating that the EPA had met the Executive Order's requirements in a meaningful and timely manner. A copy of this certification is included in the public version of the official record for this final action.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implication as specified in Executive Order 13175. The UNDS rulemaking will not impact vessels operated by tribes because the rule only regulates discharges from vessels of the Armed Forces. However, tribes may be interested in this action because vessels of the Armed Forces, including U.S. Coast Guard vessels, may operate in or near tribal waters. The EPA hosted a National Teleconference on March 23, 2013, in order to obtain meaningful and timely input during the development of the discharge standards. The EPA and DoD informed the representatives that the two agencies planned to use the NPDES VGPs effluent limitations as a baseline for developing the discharge performance standards for the 25 discharges identified in Phase I as requiring control. During the Tribal consultation period, the EPA and DoD did not receive any substantive comments from the Indian Tribal Governments.

    G. Coastal Zone Management Act

    The Coastal Zone Management Act (CZMA) and its implementing regulations (15 CFR part 930) require that any Federal agency activity or Federally licensed or permitted activity occurring within (or outside but affecting) the coastal zone of a state with an approved Coastal Management Plan (CMP) be consistent with the enforceable policies of that approved program to the maximum extent practicable. According to the August 2016 “National Consistency Determination: Uniform National Discharge Standards (UNDS) Program for Phase II Batch One Discharges,” the EPA and DoD have determined that the performance standards are consistent to the maximum extent practicable with the enforceable policies of the 34 federally-approved state and territory CMPs.

    H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA and DoD do not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The 11 discharge standards are designed to control discharges incidental to the normal operation of a vessel of the Armed Forces that could adversely affect human health and the environment. The standards reduce the impacts to the receiving waters and any person using the receiving waters, regardless of age.

    I. Executive Order 13211: Actions That Concern Regulations That Significantly Affect Energy Supply, Distribution, and Use

    This action is not subject to Executive Order 13211, because is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act

    This action involves technical standards. The EPA and DoD propose to use ISO Method 9377—determination of hydrocarbon oil index. ISO Method 9377 is a voluntary consensus standard developed by an independent, non-governmental international organization.

    K. Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act (ESA) requires each Federal agency, in consultation with and with the assistance of the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), collectively “the Services,” to ensure that the actions they authorize, fund, or carry out are not likely to adversely affect the continued existence of any endangered or threatened species (referred to as “listed species”) or result in the destruction or adverse modification of their designated critical habitats.

    The Services have published regulations implementing ESA section 7 at 50 CFR part 402. The regulations provide that a federal agency (such as the EPA and DoD) must consult with FWS, NMFS, or both if the agency determines that an activity authorized, funded, or carried out by the agency may affect listed species or critical habitat. The kinds of effects that trigger the consultation obligation could include, among other things, beneficial, detrimental, direct and indirect effects. The EPA and DoD commenced discussion with the Services in November 2014. The consultation process included multiple steps: Briefings with the Services on the contents of the rulemaking, discussions of the EPA and DoD's proposed outline and methodological approach, information exchanges and requests on current species lists, rulemaking schedule, and ultimately the submittal of a consultation package on October 11, 2016.

    L. Executive Order 13112: Invasive Species

    Executive Order 13112, entitled “Invasive Species” (64 FR 6183, February 8, 1999), requires each federal agency, whose actions may affect the status of invasive species, to identify such actions, and, subject to the availability of appropriations, use relevant programs and authorities to, among other things, prevent, detect, control, and monitor the introduction of invasive species. As defined by this Executive Order, “invasive species” means an alien species whose introduction causes, or is likely to cause, economic or environmental harm or harm to human health.

    As part of the environmental effects analyses, the EPA and DoD considered the control of invasive species when developing the discharge performance standards for all 11 discharges (See Section II).

    M. Executive Order 13089: Coral Reef Protection

    Executive Order 13089, entitled “Coral Reef Protection” (63 FR 32701, June 16, 1998), requires all federal agencies to identify actions that may affect U.S. coral reef ecosystems; utilize their programs and authorities to protect the conditions of such ecosystems; and to the extent permitted by law, ensure that any actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems. These discharge standards are designed to control or eliminate the discharges incidental to the normal operation of vessels of the Armed Forces, ultimately minimizing the potential for causing adverse impacts to the marine environment including coral reefs.

    N. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA and DoD believe that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The discharge performance standards only apply to vessels of the Armed Forces and ultimately increase environmental protection.

    O. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 1700

    Environmental protection, Armed Forces, Vessels, Coastal zone, Reporting and recordkeeping requirements, Water pollution control.

    Dated: December 8, 2016. Gina McCarthy, Administrator, Environmental Protection Agency. Dated: December 22, 2016. Steven R. Iselin, Acting Assistant Secretary of the Navy, Energy, Installations, and Environment. For the reasons stated in the preamble, title 40, chapter VII, of the Code of Federal Regulations is amended as follows: PART 1700—UNIFORM NATIONAL DISCHARGE STANDARDS FOR VESSELS OF THE ARMED FORCES 1. The authority citation for 40 CFR part 1700 continues to read as follows: Authority:

    33 U.S.C. 1322, 1361.

    Subpart A—Scope 2. Amend § 1700.2 by revising paragraph (a) to read as follows:
    § 1700.2 Effect.

    (a) This part identifies those discharges, other than sewage, incidental to the normal operation of vessels of the Armed Forces that require control within the navigable waters of the United States, including the territorial seas and the waters of the contiguous zone, and those discharges that do not require control. Discharges requiring control are identified in § 1700.4. Discharges not requiring control are identified in § 1700.5. Federal standards of performance for each required Marine Pollution Control Device are listed in §§ 1700.14 through 1700.38. Federal standards of performance apply to all vessels, whether existing or new, and regardless of vessel class, type, or size, unless otherwise expressly provided in §§ 1700.14 through 1700.38.

    3. Amend § 1700.3 by adding in alphabetical order definitions for “Bioaccumulative”, “Biodegradable”, “Environmentally acceptable lubricants”, “Federally-protected waters”, “Hazardous material”, “Minimally-toxic”, “Not bioaccumulative”, “Person in charge”, “Toxic materials”, and “Waters subject to UNDS”, to read as follows:
    § 1700.3 Definitions.

    Bioaccumulative means the opposite of not bioaccumulative.

    Biodegradable means the following for purposes of the standards:

    (1) Regarding environmentally acceptable lubricants and greases, biodegradable means lubricant formulations that contain at least 90% (weight in weight concentration or w/w) or grease formulations that contain at least 75% (w/w) of a constituent substance or constituent substances (only stated substances present above 0.10% must be assessed) that each demonstrate either the removal of at least 70% of dissolved organic carbon, production of at least 60% of the theoretical carbon dioxide, or consumption of at least 60% of the theoretical oxygen demand within 28 days. Test methods include: Organization for Economic Co-operation and Development Test Guidelines 301 A-F, 306, and 310, ASTM 5864, ASTM D-7373, OCSPP Harmonized Guideline 835.3110, and International Organization for Standardization 14593:1999. For lubricant formulations, the 10% (w/w) of the formulation that need not meet the above biodegradability requirements, up to 5% (w/w) may be non-biodegradable, but not bioaccumulative, while the remaining 5-10% must be inherently biodegradable. For grease formulations, the 25% (w/w) of the formulation that need not meet the above biodegradability requirement, the constituent substances may be either inherently biodegradable or non-biodegradable, but may not be bioaccumulative. Test methods to demonstrate inherent biodegradability include: OECD Test Guidelines 302C (>70% biodegradation after 28 days) or OECD Test Guidelines 301 A-F (>20% but <60% biodegradation after 28 days).

    (2) Regarding cleaning products, biodegradable means products that demonstrate either the removal of at least 70% of dissolved organic carbon, production of at least 60% of the theoretical carbon dioxide, or consumption of at least 60% of the theoretical oxygen demand within 28 days. Test methods include: Organization for Economic Cooperation and Development Test Guidelines 301 A-F, 306, and 310, and International Organization for Standardization 14593:1999.

    (3) Regarding biocidal substances, biodegradable means a compound or mixture that yields 60% of theoretical maximum carbon dioxide and demonstrate a removal of at least 70% of dissolved organic carbon within 28 days as described in EPA 712-C-98-075 (OPPTS 835.3100 Aerobic Aquatic Biodegradation).

    Environmentally acceptable lubricants means lubricants that are biodegradable, minimally-toxic, and not bioaccumulative as defined in this subpart. The following labeling programs and organizations meet the definition of being environmentally acceptable lubricants: Blue Angel, European Ecolabel, Nordic Swan, the Swedish Standards SS 155434 and 155470, Safer Choice, and the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) requirements.

    Federally-protected waters means waters within 12 miles of the United States that are also part of any of the following:

    (1) Marine sanctuaries designated under the National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.) or Marine National Monuments designated under the Antiquities Act of 1906;

    (2) A unit of the National Wildlife Refuge System, including Wetland Management Districts, Waterfowl Production Areas, National Game Preserves, Wildlife Management Areas, and National Fish and Wildlife Refuges;

    (3) National Wilderness Areas; and

    (4) Any component designated under the National Wild and Scenic Rivers System.

    Hazardous material means any hazardous material as defined in 49 CFR 171.8.

    Minimally-toxic means a substance must pass either OECD 201, 202, and 203 for acute toxicity testing, or OECD 210 and 211 for chronic toxicity testing. For purposes of the standards, equivalent toxicity data for marine species, including methods ISO/DIS 10253 for algae, ISO TC147/SC5/W62 for crustacean, and OSPAR 2005 for fish, may be substituted for OECD 201, 202, and 203. If a substance is evaluated for the formulation and main constituents, the LC50 of fluids must be at least 100 mg/L and the LC50 of greases, two-stroke oils, and all other total loss lubricants must be at least 1000 mg/L. If a substance is evaluated for each constituent substance, rather than the complete formulation and main compounds, then constituents comprising less than 20% of fluids can have an LC50 between 10-100 mg/L or a no-observed-effect concentration (NOEC) between 1-10 mg/L, constituents comprising less than 5% of fluids can have an LC50 between 1-10 mg/L or a NOEC between 0.1-1 mg/L, and constituents comprising less than 1% of fluids, can have an LC50 less than 1 mg/L or a NOEC between 0-0.1 mg/L.

    Not bioaccumulative means any of the following: The partition coefficient in the marine environment is log Kow <3 or >7 using test methods OECD 117 and 107; molecular mass >800 Daltons; molecular diameter >1.5 nanometer; bioconcentration factor (BCF) or bioaccumulation factor (BAF) is <100 L/kg, using OECD 305, OCSPP 850.1710 or OCSPP 850.1730, or a field-measured BAF; or polymer with molecular weight (MW) fraction below 1,000 g/mol is <1%.

    Person in charge (PIC) means the single individual named master of the vessel or placed in charge of the vessel, by the U.S. Department of Defense or by the Department in which the U.S. Coast Guard is operating, as appropriate, and who is responsible for the operation, manning, victualing, and supplying of the vessel of the Armed Forces. Examples of a PIC include, but are not limited to:

    (1) A Commanding Officer, Officer in Charge, or senior commissioned officer on board the vessel;

    (2) A civilian, military, or U.S. Coast Guard person assigned to a shore command or activity that has been designated as the PIC for one or more vessels, such as a group of boats or craft;

    (3) A Tugmaster, Craftmaster, Coxswain, or other senior enlisted person onboard the vessel;

    (4) A licensed civilian mariner onboard a Military Sealift Command vessel; or

    (5) A contracted commercial person at a shore installation that is not part of the Armed Forces but as identified by the U.S. Department of Defense or the Department in which the U.S. Coast Guard is operating.

    Toxic materials means any toxic pollutant identified in 40 CFR 401.15.

    Waters subject to UNDS means the navigable waters of the United States, including the territorial seas and the waters of the contiguous zone, as these terms are defined in the Clean Water Act (33 U.S.C. 1362).

    4. Revise subpart D to read as follows: Subpart D—Marine Pollution Control Device (MPCD) Performance Standards Sec. 1700.14 Aqueous film-forming foam. 1700.15 [Reserved] 1700.16 Chain locker effluent. 1700.17-1700.21 [Reserved] 1700.22 Distillation and reverse osmosis brine. 1700.23 Elevator pit effluent. 1700.24 [Reserved] 1700.25 Gas turbine water wash. 1700.26-1700.28 [Reserved] 1700.29 Non-oily machinery wastewater. 1700.30 Photographic laboratory drains. 1700.31 Seawater cooling overboard discharge. 1700.32 Seawater piping biofouling prevention. 1700.33 Small boat engine wet exhaust. 1700.34-1700.37 [Reserved] 1700.38 Welldeck discharges. 1700.39 Exceptions. 1700.40 Commingling of discharges. 1700.41 Records. 1700.42 Non-compliance reports. Subpart D—Marine Pollution Control Device (MPCD) Performance Standards
    § 1700.14 Aqueous film-forming foam.

    (a) For the purposes of this section, regulated aqueous film-forming foam (AFFF) refers only to firefighting foam and seawater mixture discharged during training, testing, or maintenance operations.

    (b) For all vessels that sail seaward of waters subject to UNDS at least once per month, the discharge of AFFF is prohibited.

    (c) For all vessels that do not sail seaward of waters subject to UNDS at least once per month:

    (1) The discharge of fluorinated AFFF is prohibited; and

    (2) The discharges of non-fluorinated or alternative foaming agent are prohibited in port or in or near federally-protected waters, and must occur as far from shore as possible.

    § 1700.15 [Reserved]
    § 1700.16 Chain locker effluent.

    (a) For all vessels, except submarines, the anchor chain must be carefully and thoroughly washed down (i.e., more than a cursory rinse) as it is being hauled out of the water to remove sediment and organisms.

    (b) For all vessels, the chain lockers must be cleaned periodically to eliminate accumulated sediments and any potential accompanying pollutants. The dates of all chain locker inspections must be recorded in the ship's log or other vessel recordkeeping documentation.

    (c) For all vessels that sail seaward of waters subject to UNDS at least once per month, the rinsing or pumping out of chain lockers is prohibited.

    (d) For all vessels that do not sail seaward of waters subject to UNDS at least once per month, the rinsing or pumping out of chain lockers must occur as far from shore as possible and, if technically feasible, the rinsing or pumping out of chain lockers must not occur in federally-protected waters.

    §§ 1700.17-1700.21 [Reserved]
    § 1700.22 Distillation and reverse osmosis brine.

    The discharge of brine from the distillation system and the discharge of reverse osmosis reject water are prohibited if they come in contact with machinery or industrial equipment (other than distillation or reverse osmosis machinery), toxic or hazardous materials, or wastes.

    § 1700.23 Elevator pit effluent.

    (a) The direct discharge of elevator pit effluent is prohibited.

    (b) Notwithstanding the prohibition of direct discharges of elevator pit effluent overboard, if the elevator pit effluent is commingled with any other discharge for the purposes of treatment prior to discharge, then under no circumstances may oils, including oily mixtures, be discharged from that combined discharge in quantities that:

    (1) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or

    (2) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or

    (3) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or

    (4) Otherwise are harmful to the public health or welfare of the United States.

    § 1700.24 [Reserved]
    § 1700.25 Gas turbine water wash.

    (a) The direct discharge of gas turbine water wash is prohibited.

    (b) To the greatest extent practicable, gas turbine water wash must be collected separately and disposed of onshore in accordance with any applicable solid waste and hazardous substance management and disposal requirements.

    (c) Notwithstanding the prohibition of direct discharges of gas turbine water wash overboard, if the gas turbine water wash is commingled with any other discharge for the purposes of treatment prior to discharge then under no circumstances may oils, including oily mixtures be discharged from that combined discharge in quantities that:

    (1) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or

    (2) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or

    (3) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or

    (4) Otherwise are harmful to the public health or welfare of the United States.

    §§ 1700.26-1700.28 [Reserved]
    § 1700.29 Non-oily machinery wastewater.

    The discharge of non-oily machinery wastewater must not contain any additives that are toxic or bioaccumulative in nature, and under no circumstances may oils, including oily mixtures, be discharged in quantities that:

    (a) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or

    (b) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or

    (c) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or

    (d) Otherwise are harmful to the public health or welfare of the United States.

    § 1700.30 Photographic laboratory drains.

    The discharge of photographic laboratory drains is prohibited.

    § 1700.31 Seawater cooling overboard discharge.

    (a) For discharges from vessels that are less than 79 feet in length:

    (1) To the greatest extent practicable, minimize non-contact engine cooling water, hydraulic system cooling water, refrigeration cooling water and other seawater cooling overboard discharges when the vessel is in port.

    (2) To reduce the production and discharge of seawater cooling overboard discharge, the vessel should use shore based power when in port if:

    (i) Shore power is readily available for the vessel from utilities or port authorities; and

    (ii) Shore based power supply systems are capable of providing all needed electricity required for vessel operations; and

    (iii) The vessel is equipped to connect to shore-based power and such systems are compatible with the available shore power.

    (3) Fouling organisms must be removed from seawater piping on a regular basis. The discharge of fouling organisms removed during cleanings is prohibited.

    (b) For discharges from vessels that are greater than or equal to 79 feet in length:

    (1) To the greatest extent practicable, minimize non-contact engine cooling water, hydraulic system cooling water, refrigeration cooling water and other seawater cooling overboard discharges when the vessel is in port.

    (2) To reduce the production and discharge of seawater cooling overboard discharge, the vessel should use shore based power when in port if:

    (i) Shore power is readily available for the vessel from utilities or port authorities; and

    (ii) Shore based power supply systems are capable of providing all needed electricity required for vessel operations; and

    (iii) The vessel is equipped to connect to shore-based power and such systems are compatible with the available shore power.

    (3) Maintenance of all piping and seawater cooling systems must meet the requirements of § 1700.32 (Seawater Piping Biofouling Prevention). For all vessels, except submarines, fouling organisms removed during maintenance must not be discharged.

    § 1700.32 Seawater piping biofouling prevention.

    (a) Seawater piping biofouling chemicals subject to registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136 et seq.) must be used in accordance with the FIFRA label. Pesticides or chemicals banned for use in the United States must not be discharged.

    (b) To the greatest extent practicable, only the minimum amount of biofouling chemicals must be used to keep fouling under control.

    (c) Fouling organisms must be removed from seawater piping on a regular basis. For all vessels, except submarines, the discharge of fouling organisms removed during cleanings is prohibited.

    § 1700.33 Small boat engine wet exhaust.

    (a) For the purposes of this section small boat engine wet exhaust discharges refers only to discharges from vessels that are less than 79 feet in length.

    (b) Vessels generating small boat engine wet exhaust must be maintained in good operating order, well-tuned, and functioning according to manufacturer specifications, in order to decrease pollutant concentrations and volumes in small boat engine wet exhaust.

    (c) To the greatest extent practicable, low sulfur or alternative fuels must be used to reduce the concentration of pollutants in discharges from small boat engine wet exhaust.

    (d) To the greatest extent practicable, use four-stroke engines instead of two-stroke engines for vessels generating small boat engine wet exhaust.

    (e) Vessels using two-stroke engines must use environmentally acceptable lubricants unless use of such lubricants is technologically infeasible. If technologically infeasible, the use and justification for the use of a non-environmentally acceptable lubricant must be recorded in the vessel recordkeeping documentation.

    §§ 1700.34-1700.37 [Reserved]
    § 1700.38 Welldeck discharges.

    (a) Welldeck discharges that contain graywater from smaller vessels are prohibited.

    (b) Welldeck discharges containing washdown from gas turbine engines are prohibited within three miles of the United States and to the greatest extent practicable must be discharged seaward of waters subject to UNDS.

    (c) Welldeck discharges from equipment and vehicle washdowns must not contain garbage and must not contain oil in quantities that:

    (1) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or

    (2) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or

    (3) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (e.g., ISO Method 9377) or U.S. Coast Guard; or

    (4) Otherwise are harmful to the public health or welfare of the United States.

    § 1700.39 Exceptions.

    (a) Notwithstanding each of the MPCD performance standards established in this Part, a vessel of the Armed Forces is authorized to discharge, into waters subject to UNDS, when the PIC or their designated representative determines that such discharge is necessary to prevent loss of life, personal injury, vessel endangerment, or severe damage to the vessel.

    (b) A vessel of the Armed Forces must maintain the following records for all discharges under paragraph (a) of this section:

    (1) Name and title of the PIC who determined the necessity of the discharge;

    (2) Date, location, and estimated volume of the discharge;

    (3) Explanation of the reason the discharge occurred; and

    (4) Actions taken to avoid, minimize, or otherwise mitigate the discharge.

    (c) All records prepared under paragraph (b) of this section must be maintained in accordance with § 1700.41.

    § 1700.40 Commingling of discharges.

    If two or more regulated discharge streams are combined into one, the resulting discharge stream must meet the requirements applicable to all discharge streams that are combined prior to discharge.

    § 1700.41 Records.

    (a) All records must be generated and maintained in the ship's logs (main, engineering, and/or damage control) or an UNDS Record Book and must include the following information:

    (1) Vessel owner information (e.g., U.S. Navy, U.S. Coast Guard);

    (2) Vessel name and class; and

    (3) Name of the PIC.

    (b) The PIC must maintain complete records of the following information:

    (1) Any inspection or recordkeeping requirement as specified in §§ 1700.14 through 1700.38;

    (2) Any instance of an exception and the associated recordkeeping requirements as specified in § 1700.39; and

    (3) Any instance of non-compliance with any of the performance standards as specified in §§ 1700.14 through 1700.38. The information recorded must include the following:

    (i) Description of any non-compliance and its cause;

    (ii) Date of non-compliance;

    (iii) Period of non-compliance (time and duration);

    (iv) Location of the vessel during non-compliance;

    (v) Corrective action taken;

    (vi) Steps taken or planned to reduce, eliminate, and prevent non-compliance in the future; and

    (vii) If the non-compliance has not been corrected, an estimate of the time the non-compliance is expected to continue.

    (c) All records prepared under this section must be maintained for a period of five years from the date they are created. The information in this paragraph will be available to the EPA, states, or the U.S. Coast Guard upon request. Any information made available upon request must be appropriately classified, as applicable, and handled in accordance with applicable legal requirements regarding national security.

    § 1700.42 Non-compliance reports.

    The PIC must report any non-compliance, including the information as required under § 1700.41, to the Armed Service's designated office in writing and/or electronically within five days of the time the PIC becomes aware of the circumstances.

    [FR Doc. 2017-00153 Filed 1-10-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 98 [Docket No. 2016-22986] RIN 0970-AC67 Child Care and Development Fund (CCDF) Program; Correction AGENCY:

    Office of Child Care (OCC), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).

    ACTION:

    Correcting amendment.

    SUMMARY:

    The Department of Health and Human Services published a final rule in the Federal Register on September 30, 2016 that revised regulations for the Child Care and Development Fund (CCDF) program. The final rule inadvertently included incorrect numbering of two paragraphs. This document corrects the numbering of those two paragraphs.

    DATES:

    Effective on January 11, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Andrew Williams, Office of Child Care, at 202-401-4795 (not a toll-free call). Deaf and hearing impaired individuals may call the Federal Dual Party Relay Services at 1-800-877-8339 between 8 a.m. and 7 p.m. Eastern Time.

    SUPPLEMENTARY INFORMATION:

    The Department of Health and Human Services published a final rule in the Federal Register on September 30, 2016 (81 FR 67438) that revised regulations for the Child Care and Development Fund (CCDF) program based on the Child Care and Development Block Grant Act of 2014. The final rule inadvertently included incorrect numbering of two paragraphs in 45 CFR 98.83(d)(1) regarding requirements for tribal CCDF programs. This document corrects the final regulations by revising this section.

    List of Subjects in 45 CFR Part 98

    Child care, Grant programs—social programs.

    Accordingly, 45 CFR part 98 is corrected by making the following correcting amendments:

    PART 98—CHILD CARE AND DEVELOPMENT FUND 1. The authority citation for part 98 continues to read as follows: Authority:

    42 U.S.C. 618, 9858.

    2. Revise paragraph (d)(1) of § 98.83 to read as follows:
    § 98.83 Requirements for tribal programs.

    (d)(1) Tribal Lead Agencies shall not be subject to:

    (i) The requirement to produce a consumer education Web site at § 98.33(a). Tribal Lead Agencies still must collect and disseminate the provider-specific consumer education information described at § 98.33(a) through (d), but may do so using methods other than a Web site;

    (ii) The requirement to have licensing applicable to child care services at § 98.40;

    (iii) The requirement for a training and professional development framework at § 98.44(a);

    (iv) The market rate survey or alternative methodology described at § 98.45(b)(2) and the related requirements at § 98.45(c), (d), (e), and (f);

    (v) The requirement that Lead Agencies shall give priority for services to children of families with very low family income at § 98.46(a)(1);

    (vi) The requirement that Lead Agencies shall prioritize increasing access to high-quality child care in areas with significant concentrations of poverty and unemployment at § 98.46(b);

    (vii) The requirements about Mandatory and Matching Funds at § 98.50(e);

    (viii) The requirement to complete the quality progress report at § 98.53(f);

    (ix) The requirement that Lead Agencies shall expend no more than five percent from each year's allotment on administrative costs at § 98.54(a); and

    (x) The Matching Fund requirements at §§ 98.55 and 98.63.

    Dated: January 3, 2017. Madhura C. Valverde, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2017-00093 Filed 1-10-17; 8:45 am] BILLING CODE 4150-28-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R3-ES-2015-0112; 4500030113] RIN 1018-BB66 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Rusty Patched Bumble Bee AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the rusty patched bumble bee (Bombus affinis), a species that occurs in the eastern and Midwestern United States and Ontario, Canada. The effect of this regulation will be to add this species to the List of Endangered and Threatened Wildlife.

    DATES:

    This rule becomes effective February 10, 2017.

    ADDRESSES:

    This final rule is available on the internet at http://www.regulations.gov and on the Midwest Region Web site at http://www.fws.gov/midwest/Endangered/. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov. Comments, materials, and documentation that we considered in this rulemaking will be available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Twin Cities Ecological Services Field Office, 4101 American Blvd. E., Bloomington, MN 55425; telephone 952-252-0092, extension 210.

    FOR FURTHER INFORMATION CONTACT:

    Peter Fasbender, Field Supervisor, U.S. Fish and Wildlife Service, Twin Cities Ecological Services Field Office, 4101 American Blvd. E., Bloomington, MN 55425, by telephone 952-252-0092, extension 210. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. This rule will finalize the listing of the rusty patched bumble bee (Bombus affinis) as an endangered species.

    The basis for our action. Under the Endangered Species Act, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. While the exact cause of the species' decline is uncertain, the primary causes attributed to the decline include habitat loss and degradation, pathogens, pesticides, and small population dynamics.

    Peer review and public comment. We sought comments on the species status assessment (SSA) from independent specialists to ensure that our analysis was based on scientifically sound data, assumptions, and analyses. We also invited these peer reviewers to comment on our listing proposal. We also considered all comments and information received during the public comment period.

    An SSA team prepared an SSA for the rusty patched bumble bee. The SSA team was composed of U.S. Fish and Wildlife Service biologists, in consultation with other species experts. The SSA represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the rusty patched bumble bee. The SSA underwent independent peer review by 15 scientists with expertise in bumble bee biology, habitat management, and stressors (factors negatively affecting the species). We incorporated peer review suggestions into the SSA. The SSA and other materials relating to this final rule can be found on the Midwest Region Web site at http://www.fws.gov/midwest/Endangered/ or on http://www.regulations.gov.

    Previous Federal Action

    Please refer to the proposed listing rule for the rusty patched bumble bee (81 FR 65324; September 22, 2016) for a detailed description of previous Federal actions concerning this species.

    Background

    A thorough review of the taxonomy, life history, and ecology of the rusty patched bumble bee (Bombus affinis) is presented in the species status assessment report (Szymanski et al. 2016, Chapter 2; available at http://www.fws.gov/midwest/Endangered/ and at http://www.regulations.gov under Docket No. FWS-R3-ES-2015-0112). All bumble bees, including the rusty patched, belong to the genus Bombus (within the family Apidae) (Williams et al. 2008, p. 53).

    The rusty patched bumble bee is a eusocial (highly social) organism forming colonies consisting of a single queen, female workers, and males. Colony sizes of the rusty patched bumble bee are considered large compared to other bumble bees, and healthy colonies may consist of up to 1,000 individual workers in a season (Macfarlane et al. 1994, pp. 3-4). Queens and workers differ slightly in size and coloration; queens are larger than workers (Plath 1922, p. 192, Mitchell 1962, p. 518). All rusty patched bumble bees have entirely black heads, but only workers and males have a rusty reddish patch centrally located on the abdomen.

    The rusty patched bumble bee's annual cycle begins in early spring with colony initiation by solitary queens and progresses with the production of workers throughout the summer and ending with the production of reproductive individuals (males and potential queens) in mid- to late summer and early fall (Macfarlane et al. 1994, p. 4; Colla and Dumesh 2010, p. 45; Plath 1922, p. 192). The males and new queens (gynes, or reproductive females) disperse to mate, and the original founding queen, males, and workers die. The new queens go into diapause (a form of hibernation) over winter. The following spring, the queen, or foundress, searches for suitable nest sites and collects nectar and pollen from flowers to support the production of her eggs, which are fertilized by sperm she has stored since mating the previous fall. She is solely responsible for establishing the colony. As the workers hatch and the colony grows, they assume the responsibility of food collection, colony defense, and care of the young, while the foundress remains within the nest and continues to lay eggs. During later stages of colony development, in mid-July or August to September, the new queens and males hatch from eggs.

    The rusty patched bumble bee has been observed and collected in a variety of habitats, including prairies, woodlands, marshes, agricultural landscapes, and residential parks and gardens (Colla and Packer 2008, p. 1381; Colla and Dumesh 2010, p. 46; USFWS rusty patched bumble bee unpublished geodatabase 2016). The species requires areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sites for hibernating queens (Goulson et al. 2015, p. 2; Potts et al. 2010, p. 349). Rusty patched bumble bees live in temperate climates, and are not likely to survive prolonged periods of high temperatures (over 35 °Celsius (C) (95 °F (F)) (Goulson 2016, pers. comm.).

    Bumble bees are generalist foragers, meaning they gather pollen and nectar from a wide variety of flowering plants (Xerces 2013, pp. 27-28). The rusty patched bumble bee is one of the first bumble bees to emerge early in the spring and the last to go into hibernation, so to meet its nutritional needs, the species requires a constant and diverse supply of blooming flowers.

    Rusty patched bumble bee nests are typically in abandoned rodent nests or other similar cavities (Plath 1922, pp. 190-191; Macfarlane et al. 1994, p. 4). Little is known about the overwintering habitats of rusty patched bumble bee foundress queens, but other species of Bombus typically form a chamber in soft soil, a few centimeters deep, and sometimes use compost or mole hills to overwinter (Goulson 2010, p. 11).

    Prior to the mid- to late 1990s, the rusty patched bumble bee was widely distributed across areas of 31 States/Provinces: Connecticut, Delaware, District of Columbia, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Ontario, Pennsylvania, Quebec, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin. Since 2000, the rusty patched bumble bee has been reported from 14 States/Provinces: Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, North Carolina, Ontario, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin (figure 1).

    Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the rusty patched bumble bee, and prepared a report of the assessment, which provides a thorough account of the species' overall viability. We define viability as the ability of the species to persist over the long term and, conversely, to avoid extinction. In this section, we summarize the conclusions of that assessment, which can be accessed at Docket No. FWS-R3-ES-2015-0112 on http://www.regulations.gov and at http://www.fws.gov/midwest/Endangered/. The reader is directed to the Rusty Patched Bumble Bee (Bombus affinis) Species Status Assessment (SSA; Szymanski et al. 2016) for a detailed discussion of our evaluation of the biological status of the rusty patched bumble bee and the influences that may affect its continued existence.

    To assess rusty patched bumble bee viability, we used the three conservation biology principles of resiliency, representation, and redundancy (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes); and redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In general, the more redundant, representative, and resilient a species is, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

    We evaluated the change in resiliency, representation, and redundancy from the past until the present, and projected the anticipated future states of these conditions. To forecast the biological condition into the future, we devised plausible future scenarios by eliciting expert information on the primary stressors anticipated in the future to the rusty patched bumble bee: Pathogens, pesticides, habitat loss and degradation, effects of climate change, and small population dynamics. To assess resiliency, we evaluated the trend in rusty patched bumble bee occurrences (populations) over time. To forecast future abundance, we used a population model to project the number of populations expected to persist based on plausible future risk scenarios. To assess representation (as an indicator of adaptive capacity) of the rusty patched bumble bee, we evaluated the spatial extent of occurrences over time. That is, we tallied the number of counties, States, and ecoregions occupied by the species historically, currently, and projected into the future. Ecoregions are areas delineated to capture the variation (representation) in the species. We relied on unique climate conditions to delineate variations, and thus, used the Bailey Ecoregions (Bailey 1983, Bailey et al. 1994) and the equivalent Canadian Ecoregions (Ecological Stratification Working Group, 1996) in our analyses. To assess redundancy, we calculated the risk of ecoregion-wide extirpations given the past frequency of catastrophic drought events in each of the ecoregions.

    Our analyses indicate that the resiliency, representation, and redundancy of the rusty patched bumble bee have all declined since the late 1990s and are projected to continue to decline over the next several decades. Historically, the species was abundant and widespread, with hundreds of populations across an expansive range, and was the fourth-ranked Bombus species in our relative abundance analysis. This information has also been reported by others.

    Since the late 1990s, rusty patched bumble bee abundance and distribution has declined significantly. Historically, the rusty patched bumble bee has been documented from 926 populations; since 1999, the species has been observed at 103 populations, which represents an 88 percent decline from the number of populations documented prior to 2000). We assumed any population with at least one record (one individual rusty patched bumble bee seen) since 1999 is current, and thus, the overall health and status of these 103 current populations is uncertain. Indeed, many populations have not been reconfirmed since the early 2000s and may no longer persist. For example, no rusty patched bumble bees were observed at 41 (40 percent) of the current sites since 2010 and at 75 (73 percent) of the 103 sites since 2015. Furthermore, many of the current populations are documented by only a few individuals; 95 percent of the populations are documented by 5 or fewer individuals; the maximum number found at any site was 30. The number of individuals constituting a healthy colony is typically several hundred, and a healthy population typically contains tens to hundreds of colonies (Macfarlane et al. 1994, pp. 3-4).

    Along with the loss of populations, a marked decrease in the range and distribution has occurred in recent times. As noted above, the rusty patched bumble bee was broadly distributed historically across the Eastern United States, upper Midwest, and southern Quebec and Ontario, an area comprising 15 ecoregions, 31 States/Provinces, and 394 U.S. counties and 38 county-equivalents in Canada. Since 2000, the species' distribution has declined across its range, with current records from 6 ecoregions, 14 States or Provinces, and 55 counties (figure 1); this represents an 87-percent loss of spatial extent (expressed as a loss of counties with the species) within the historical range. The losses in both the number of populations and spatial extent render the rusty patched bumble bee vulnerable to extinction even without further external stressors (e.g., habitat loss, insecticide exposure) acting upon the species.

    ER11JA17.014

    Many of the existing populations, however, continue to face the effects of past and ongoing stressors, including pathogens, pesticides, habitat loss and degradation, small population dynamics, and effects of climate change. A brief summary of these primary stressors is presented below; for a full description of these stressors, refer to chapter 5 of the SSA report.

    Pathogens—The precipitous decline of several bumble bee species (including the rusty patched) from the mid-1990s to the present was contemporaneous with the collapse in populations of commercially bred western bumble bees (B. occidentalis), raised primarily to pollinate greenhouse tomato and sweet pepper crops, beginning in the late 1980s (for example, Szabo et al. 2012, pp. 232-233). This collapse was attributed to the microsporidium (fungus) Nosema bombi. Around the same time, several North American wild bumble bee species also began to decline rapidly (Szabo et al. 2012, p. 232). The temporal congruence and speed of these declines led to the suggestion that they were caused by transmission or “spillover” of N. bombi from the commercial colonies to wild populations through shared foraging resources. Patterns of losses observed, however, cannot be completely explained by exposure to N. bombi. Several experts have surmised that N. bombi may not be the culpable (or only culpable) pathogen in the precipitous decline of certain wild bumble bees in North America (for example, Goulson 2016, pers. comm.; Strange and Tripodi 2016, pers. comm.), and the evidence for chronic pathogen spillover from commercial bumble bees as a main cause of decline remains debatable (see various arguments in Colla et al. 2006, entire; Szabo et al. 2012, entire; Manley et al. 2015, entire).

    In addition to fungi such as N. bombi, other viruses, bacteria, and parasites are being investigated for their effects on bumble bees in North America, such as deformed wing virus, acute bee paralysis virus, and parasites such as Crithidia bombi and Apicystis bombi (for example, Szabo et al. 2012, p. 237; Manley et al. 2015, p. 2; Tripodi 2016, pers. comm.; Goulson et al. 2015, p. 3). Little is known about these diseases in bumble bees, and no studies specific to the rusty patched bumble bee have been conducted. Refer to Szymanski et al. (2016, pp. 40-43) for a brief summary of those that have the greatest potential to affect the rusty patched bumble bee.

    Pesticides—A variety of pesticides are widely used in agricultural, urban, and even natural environments, and native bumble bees are simultaneously exposed to multiple pesticides, including insecticides, fungicides, and herbicides. The pesticides with greatest effects on bumble bees are insecticides and herbicides: Insecticides are specifically designed to directly kill insects, including bumble bees, and herbicides reduce available floral resources, thus indirectly affecting bumble bees. Although the overall toxicity of pesticides to rusty patched or other bumble bees is unknown, pesticides have been documented to have both lethal and sublethal effects (for example, reduced or no male production, reduced or no egg hatch, and reduced queen production and longevity) on bumble bees (for example, Gill et al. 2012, p. 107; Mommaerts et al. 2006, pp. 3-4; Fauser-Misslin et al. 2014, pp. 453-454).

    Neonicotinoids are a class of insecticides used to target pests of agricultural crops, forests (for example, emerald ash borer), turf, gardens, and pets and have been strongly implicated as the cause of the decline of bees in general (European Food Safety Authority 2015, p. 4211; Pisa et al. 2015, p. 69; Goulson 2013, pp. 7-8), and specifically for rusty patched bumble bees, due to the contemporaneous introduction of neonicotinoid use and the precipitous decline of the species (Colla and Packer 2008, p. 10). The neonicotinoid imidacloprid became widely used in the United States starting in the early 1990s, and clothianidin and thiamethoxam entered the commercial market beginning in the early 2000s (Douglas and Tooker 2015, pp. 5091-5092). The use of neonicotinoids rapidly increased as seed-applied products were introduced in field crops, marking a shift toward large-scale, preemptive insecticide use. If current trends continue, Douglas and Tooker (2015, p. 5093) predict that neonicotinoid use will increase further, through application to more soybeans and other crop species.

    Most studies examining the effect of neonicotinoids on bees have been conducted using the European honey bee (Apis mellifera) (Lundin et al. 2015, p. 7). Bumble bees, however, may be more vulnerable to pesticide exposure for several reasons: (1) They are more susceptible to pesticides applied early in the year, because for 1 month the entire bumble bee population depends on the success of the queens to forage and establish new colonies; (2) bumble bees forage earlier in the morning and later in the evening than honey bees, and thus are susceptible to pesticides applied in the early morning or evening to avoid effects to honey bees; (3) most bumble bees have smaller colonies than honey bees; thus, a single bumble bee worker is more important to the survival of the colony (Thompson and Hunt 1999, p. 155); (4) bumble bees nest underground, and thus are also exposed to pesticide residues in the soil (Arena and Sgolastra 2014, p. 333); and (5) bumble bee larvae consume large amounts of unprocessed pollen (as opposed to honey), and therefore are much more exposed to pesticide residues in the pollen (Arena and Sgolastra 2014, p. 333).

    Habitat loss and degradation—The rusty patched bumble bee historically occupied native grasslands of the Northeast and upper Midwest; however, much of this landscape has now been lost or is fragmented. Estimates of native grassland losses since European settlement of North America are as high as 99.9 percent (Samson and Knofp 1994, p. 418). Habitat loss is commonly cited as a long-term contributor to bee declines through the 20th century, and may continue to contribute to current declines, at least for some species (Goulson et al. 2015, p. 2; Goulson et al. 2008; Potts et al. 2010, p. 348; Brown and Paxton 2009, pp. 411-412). However, the rusty patched bumble bee may not be as severely affected by habitat loss compared to habitat specialists, such as native prairie endemics, because it is not dependent on specific plant species, but can use a variety of floral resources. Still, loss or degradation of habitat has been shown to reduce both bee diversity and abundance (Potts et al. 2010, pp. 348-349). Large monocultures do not support the plant diversity needed to provide food resources throughout the rusty patched bumble bees' long foraging season, and small, isolated patches of habitat may not be sufficient to support healthy bee populations (Hatfield and LeBuhn 2007, pp. 154-156; Öckinger and Smith 2007, pp. 55-56).

    Although habitat loss has established negative effects on bumble bees (Goulson et al. 2008; Williams and Osborne 2009, pp. 371-373), many researchers believe it is unlikely to be a main driver of the recent, widespread North American bee declines (Szabo et al. 2012; p. 236; Colla and Packer 2008, p. 1388; Cameron et al. 2011b, p. 665). However, the past effects of habitat loss and degradation may continue to have impacts on bumble bees that are stressed by other factors. If there is less food available or if the bumble bees must expend more energy and time to find food, they are less healthy overall, and thus less resilient to other stressors (for example, nutritional stress may decrease the ability to survive parasite infection (Brown et al. 2000, pp. 425-426) or cope with pesticides (Goulson et al. 2015, p. 5)). Furthermore, bumble bees may be more vulnerable to extinction than other animals because their colonies have long cycles, where reproductive individuals are primarily produced near the end of those cycles. Thus, even slight changes in resource availability could have significant cumulative effects on colony development and productivity (Colla and Packer 2008, p. 1380).

    Small population dynamics—The social organization of bees has a large effect on their population biology and genetics (Pamilo and Crozier 1997, entire; Chapman and Bourke 2001, entire; Zayed 2009, entire). The rusty patched bumble bee is a eusocial bee species (cooperative brood care, overlapping generations within a colony of adults, and a division of labor into reproductive and nonreproductive groups), and a population is made up of colonies rather than individuals. Consequently, the effective population size (number of individuals in a population who contribute offspring to the next generation) is much smaller than the census population size (number of individuals in a population). Genetic effects of small population sizes depend on the effective population size (rather than the actual size), and for the rusty patched bumble bee the effective population sizes are inherently small due to the species' eusocial structure, haplodiploidy reproduction, and the associated “diploid male vortex.”

    Like many insect species, the rusty patched bumble bee has haplodiploidy sex differentiation, in which haploid (having one set of chromosomes) males are produced from unfertilized eggs and diploid (containing two complete sets of chromosomes) females from fertilized eggs (Zayed 2009, p. 239). When females mate with related males (as is more likely to happen in small populations), however, half of the females' progeny will develop into diploid males instead of females. Having fewer females decreases the health of the colony, as males do not contribute food resources to the colony (Ellis et al. 2006, p. 4376). Additionally, diploid males are mostly unviable or, if viable and mate, produce unviable eggs or sterile daughters (Zayed 2009, p. 239 and references within), so those males that are produced are unable to contribute to next year's cohort. (See Szymanski et al. 2016, pp. 17-18 for a more detailed explanation of this life-history characteristic). This reproductive strategy (haplodiploidy) makes the rusty patched bumble bee particularly vulnerable to the effects of a small population size, as the species can experience a phenomenon called a “diploid male vortex,” where the proportion of nonviable males increases as abundance declines, thereby further reducing population size. Given this, due to the small sizes of the current populations, some populations may not persist and others are likely already quasi-extirpated (the level at which a population will go extinct, although it is not yet at zero individuals) (Szymanski et al. 2016, p. 66).

    Effects of climate change—Global climate change is broadly accepted as one of the most significant risks to biodiversity worldwide; however, specific impacts of climate change on pollinators are not well understood. The changes in climate likely to have the greatest effects on bumble bees include: Increased drought, increased flooding, increased storm events, increased temperature and precipitations, early snow melt, late frost, and increased variability in temperatures and precipitation. These climate changes may lead to decreased resource availability (due to mismatches in temporal and spatial co-occurrences, such as availability of floral resources early in the flight period), decreased availability of nesting habitat (due to changes in rodent populations or increased flooding or storms), increased stress from overheating (due to higher temperatures), and increased pressures from pathogens and nonnative species, (Goulson et al. 2015, p. 4; Goulson 2016, pers. comm.; Kerr et al. 2015, pp. 178-179; Potts et al. 2010, p. 351; Cameron et al. 2011a, pp. 35-37; Williams and Osborne 2009, p. 371).

    Synergistic effects—It is likely that several of the above summarized risk factors are acting synergistically or additively on the species, and the combination of multiple stressors is likely more harmful than a single stressor acting alone. Although the ultimate source of the decline is debated, the acute and widespread decline of rusty patched bumble bees is undisputable.

    Beneficial factors—We are aware of only a few specific measures for bumble bee conservation at any of the current rusty patched bumble bee locations in the United States. In Canada, the species was listed as endangered on Schedule 1 of the Species at Risk Act in 2012, and a recovery strategy has been proposed (Environment and Climate Change Canada 2016, entire). However, we are aware of only nine current occurrences (three populations) in Canada. The rusty patched bumble bee is listed as State endangered in Vermont and Special Concern in Connecticut, Michigan, and Wisconsin. Of these 4 States, Wisconsin is the only State with current records (18 populations). Existing regulatory mechanisms that address threats to the species vary across the species' range; one such mechanism is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), under which the U.S. Environmental Protection Agency (EPA) determines the ecological risk of all registered pesticides. Also, one way the Service works to ensure pesticides are used with the least amount of hazards to human and environmental health is through its pesticide consultations with the EPA. Since 2013, the Service and EPA, together with the National Marine Fisheries Service (NOAA-Fisheries), have been working collaboratively on the Act's section 7 consultation process. The agencies are currently working together to complete consultations on nine pesticides (carbaryl, chlorpyrifos, diazinon, malathion, methomyl, atrazine, simazine, propazine, and glyphosate), with biological opinions to be completed in December 2017, 2018, and 2022 for those chemicals.

    A few organizations have or may soon start monitoring programs, such as Bumble Bee Watch (www.bumble beewatch.org), a collaborative citizen science effort to track North American bumble bees, and the Xerces Society. Also, the International Union of Concerned Scientists Conservation Breeding Specialist Group has developed general conservation guidelines for bumble bees (Hatfield et al. 2014b, pp. 11-16; Cameron et al. 2011a, entire). There is an increased awareness on pollinators in general, and thus efforts to conserve pollinators may have a fortuitous effect on the rusty patched bumble bee. An example of such efforts is the Ohio Pollinator Habitat Initiative, which is working to improve and create pollinator habitat and raise awareness of the importance of pollinators in Ohio (http://www.ophi.info/ (accessed December 14, 2016)). Actions such as planting appropriate flowers may contribute to pollinator conservation; however, there is a need to develop regionally appropriate, bumble bee-specific recommendations based on evidence of use (Goulson 2015, p. 6).

    In summary, the magnitude of population losses and range contraction to date has greatly reduced the rusty patched bumble bee's ability to adapt to changing environmental conditions and to guard against further losses of adaptive diversity and potential extinction due to catastrophic events. In reality, the few populations persisting and the limited distribution of these populations have substantially reduced the ability of the rusty patched bumble bee to withstand environmental variation, catastrophic events, and changes in physical and biological conditions. Coupled with the increased risk of extirpation due to the interaction of reduced population size and its haplodiploidy reproductive strategy, the rusty patched bumble bee may lack the resiliency required to sustain populations into the future, even without further exposure to stressors.

    Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered comments from the public and peer reviewers on the proposed rule. This final rule incorporates minor changes to our proposed listing based on the comments we received, as discussed below in Summary of Comments and Recommendations, and newly available occurrence data. These data allowed us to refine occurrence information, thus, the final numerical results are slightly different from those in the proposed rule.

    We have reevaluated the viability of the rusty patched bumble bee in the SSA given this new information, and found that the probability of the species' persistence has not changed from the proposed rule. Specifically, in four of the ecoregions, the probability of extirpation exceeds 90 percent within 10 years, and extirpation in the remaining ecoregions is greater than 90 percent by year 30. The new information we received in response to the proposed rule did not change our determination that the rusty patched bumble bee is an endangered species, nor was it significant enough to warrant reopening the public comment period.

    Summary of Comments and Recommendations

    In the proposed rule published on September 22, 2016 (81 FR 65324), we requested that all interested parties submit written comments on the proposal by November 21, 2016. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in USA Today on October 6, 2016. We did not receive any requests for a public hearing.

    We reviewed all comments received in response to the proposed rule for substantive issues and new information. Over 70 commenters provided substantive information. Those commenters included members of the general public, local governments, nongovernmental organizations, State agencies, species experts, agricultural organizations, and industry. We did not receive comments from Federal agencies or Tribes.

    We also received more than 100 individual comments supporting the proposed rule to list rusty patched bumble bee, and thousands (more than 90,000) of supportive comments submitted in form-letter format by members of Environment America, Environmental Action, Friends of the Earth, League of Conservation Voters, Sierra Club, and the Natural Resources Defense Council. Although comments simply expressing support or opposition to the proposed action do not affect the final determination, we appreciate knowing of the public's opinion regarding our action.

    All substantive information provided during the comment period has either been incorporated directly into this final determination or addressed below. The new occurrence data we received was incorporated into our SSA analysis.

    Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited review of the SSA report from 25 knowledgeable individuals with scientific expertise that included familiarity with the rusty patched bumble bee and its habitat, biological needs, and threats. We received responses from 15 of the peer reviewers.

    We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the rusty patched bumble bee. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the assessment. Peer reviewer comments are addressed in an appendix to the SSA, as appropriate; therefore, our proposal and this final rule were developed in consideration of peer reviewer comments.

    Comments From States

    (1) Comment: One State transportation agency recommended the Service review literature on bumble bee mortality from vehicle collisions prior to listing, particularly in regard to areas where suitable habitat and highway rights-of-way intersect. The commenting agency was concerned about undue constraints being placed on transportation agencies that may be responsible for implementing wildlife-friendly road crossings.

    Our Response: To date, we have not found evidence that suggests vehicle collision is a threat to the rusty patched bumble bee. Through the recovery process, we will be conducting population-specific assessments to identify the stressors acting upon the populations. If vehicle collisions are found to be a problem for a specific population, the Service will work with the applicable county, State, or Federal agency to strategize on measures that could be used to reduce the mortality.

    (2) Comment: A few State transportation and agriculture agencies and other commenters indicated that we should conduct additional population surveys prior to listing, because they believed additional populations would likely be found.

    Our Response: The listing decision must be made using the best scientific and commercial data available at that time. In this case, we have access to rangewide, rusty patched bumble bee specific survey data from the late 1990s through 2016. Since we published the proposed listing rule, additional survey data have become available to us from large-scale bumble bee surveys in the States of Maine, Michigan, and Minnesota, as well as several smaller scale searches for the species, including citizen science surveys. These surveys were generally focused on prairies and grasslands with good-quality habitat for the species and, therefore, a good potential of hosting the species. However, as in the majority of previous surveys, the rusty patched bumble bee was not detected at most sites.

    In 2016, no rusty patched bumble bees were found at the 50 sites surveyed in Michigan, and the species was detected at 15 of the approximately 120 locations surveyed in Minnesota. Maine initiated a statewide 5-year bumble bee atlas program in 2015 to better understand the status of the State's bumble bees through citizen science. The rusty patched bumble bee was not among approximately 4,500 submitted vouchers and photos from Maine in 2015, nor was it detected in the 2016 survey effort. Given the amount of sampling within the range of the rusty patched bumble bee, we find that the likelihood of discovering a significant number of new populations is low. Further, given the condition of the persisting populations and the stressors that those populations face, adding a small number of new populations does not change our endangered determination, since the additional populations likely face similar stressors.

    (3) Comment: One State agency expressed an interest in converting more rights-of-way into pollinator habitat to benefit the rusty patched bumble bee and other species, but is concerned that, as these areas become suitable habitat for a listed species, projects in these locations may require section 7 consultations. The agency further stated that consultation concerns could be alleviated via a rule issued under the authority of section 4(d) of the Act, if evidence supports the species being listed as threatened, or by other methods such as assurances from the Service, Safe Harbor Agreements, or programmatic consultations. A few industry groups also requested that the Service develop a species-specific section 4(d) rule, if threatened status is warranted. Such a rule, they state, would help protect the species and allow ongoing conservation efforts. One commenter suggested that a threatened listing, as opposed to endangered, would be a more appropriate classification for this species.

    Our Response: We appreciate the agency's interest in enhancing pollinator habitat. These plantings can offer foraging and breeding habitats for pollinators and may connect previously separated habitats and aid in species recovery. Although an increased workload for section 7 consultations may be associated with listing, section 4 of the Act requires the Service to determine whether any species is an endangered or threatened species because of any of the section 4(a)(1) factors. The Service will work with the consulting agency as expeditiously as possible to complete the section 7 consultation processes in a timely manner. Once a species is listed, we offer private or other non-Federal property owners voluntary Safe Harbor Agreements that can contribute to the recovery of species, Habitat Conservation Plans that facilitate private activities (e.g., grazing) while minimizing effects to species, funding through the Partners for Fish and Wildlife Program to help promote conservation actions, and grants to the States under section 6 of the Act.

    We have determined that, based on the best scientific and commercial data available at the time of listing, the rusty patched bumble bee warrants listing as an endangered species. A complete discussion is provided in the Determination section of the preamble to this rule. Section 4(d) of the Act allows for development of rules for species listed as threatened. As this species is being listed as an endangered species, a section 4(d) rule cannot be promulgated.

    (4) Comment: Several commenters stated that, because the rusty patched bumble bee has such a large historical range, overly burdensome regulations could be placed on a large geographic area. Specifically, one State transportation agency commented that, based on the available status information, the State would support listing with rules that would encourage conservation plan elements that allow State transportation agencies to plan highway roadside management without a large section 7 consultation burden. The agency further commented that it is willing to maintain roadsides that provide environmental benefits, as long as safety of the traveling public is not compromised and resources are available. Also, the agency wanted to ensure that the Service is aware of potential conflicts with other federally mandated practices related to roadside vegetation management.

    Our Response: For federally listed species, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency enters into consultation with the Service regarding the degree of impact and measures available to avoid or minimize adverse effects. We look forward to working with the States and other agencies and organizations in developing ways to conserve the rusty patched bumble bee while streamlining consultation requirements. We may also issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified in title 50 of the Code of Federal Regulations at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

    (5) Comment: One State agency was concerned that, although habitat loss and pesticide use may be less likely to be the causes of the decline than pathogens and the effects of climate change, habitat and pesticide use will be the only two factors addressed in the species' recovery plan. If the Service focuses on only those two threats, the commenter stated that recovery will be less efficient, and the listing will impact landowners and farmers to a greater degree than other members of the regulated community. The commenter believes that the Service should consider approaches to pollinators that address all of the relevant factors to truly protect and preserve the rusty patched bumble bee.

    Our Response: Landowners deserve great credit for their land stewardship, and we want to continue to encourage those management practices that support bumble bees and other insect pollinators. The Service also strives to find ways to meet people's needs while protecting imperiled species. The Service is committed to working with private landowners, public land managers, conservation agencies, nongovernmental organizations, and the scientific community to conserve the rusty patched bumble bee. Determining why populations persist in some areas and not others will be a key question during recovery planning for this species. All primary stressors will be considered during recovery planning and implementation. More information about stressors acting on each remaining population will help inform effective and efficient recovery planning and recovery actions.

    (6) Comment: One State transportation agency recommended that the Service more clearly define the phrase “where the rusty patched bumble bee is known to occur” in the discussion of activities that could result in take if performed in areas currently occupied by the species. The agency requested that the Service clarify what is considered as occupied habitat (historical range, current range, or specific known locations). The agency recommended limiting the definition of occupied habitat to current collection records, and limiting requirements for survey work to areas within and directly adjacent to currently known locations.

    Our Response: The Service maintains a list of counties that are within the current range of the species on publicly accessible Web sites. We suggest that project proponents contact their State's U.S. Fish and Wildlife Service Ecological Services Field Office for specific information for their locality. The species is likely to be present only in areas with suitable habitat. Suitable habitats are described in the Background section of the preamble to this final listing rule. The phrase “known to occur” was inserted to clarify that the rusty patched bumble bee would have to be exposed to actions for those actions to cause take and that the bees would be exposed only if they occur in the area that would be affected by a particular action. That is, we want to avoid the interpretation that the general use of pesticides, for example, could be prohibited per the listing of the rusty patched bumble bee. However, the species will be protected under the Act in any area where it is found to occur.

    (7) Comment: The Ohio Department of Transportation (DOT) recommended allowing specialists to start applying for collector's permits before the species is listed so that permitted surveyors are available as needed once the listing process is complete.

    Our Response: The Service can include proposed species on section 10(a)(1)(a) permits and encourages the submission of permit applications as soon as possible.

    (8) Comment: The Ohio DOT provided information about past conservation projects in Ohio that may benefit the rusty patched bumble bee, even though they were not specifically designed to conserve the species. Examples of existing conservation efforts that have been completed by the agency include protection of mitigation areas that are under conservation easement, development of procedures to limit moving certain rights-of-way, partnerships with the Ohio Pollinator Habitat Initiative, and pilot testing of pollinator plots within rights-of-way.

    Our Response: We appreciate Ohio's interest and contribution to conservation and look forward to continuing a cooperative relationship with Ohio and other States as we proceed with recovery planning and implementation for the rusty patched bumble bee. Despite these beneficial measures, however, the status of the species remains dire.

    (9) Comment: The Pennsylvania Department of Agriculture noted that one of the threats to the rusty patched bumble bee identified in the proposal is the spread of pathogens from commercial honey and bumble bees. The commenter stated that the Pennsylvania Department of Agriculture does not have the authority or the mandate to regulate or inspect bumble bee colonies that are reared for agricultural purposes. The commenter expressed concern over this lack of oversight if the spread of pathogens from captive to wild bees is going to be better understood and addressed.

    Our Response: We appreciate this information and will consider it during the recovery planning process.

    (10) Comment: Several State agencies and other commenters provided information regarding ongoing or planned pollinator conservation actions and plans that the Service should consider. One State agency commented that its government is in the process of developing a Pollinator Protection Plan intended to improve and protect the health of pollinators, while also protecting crops, property, and human health. The plan is a nonregulatory guidance document that provides voluntary measures for apiarists and pesticide applicators. Two other State agencies provided information regarding planned future conservation actions, specifically in the States of Ohio and North Dakota. These activities include seeking funding for population surveys, monitoring, and research, and developing pollinator strategy plans. Other commenters cited, for example, that the White House has developed several documents outlining measures to protect honey bees and other pollinators and that a number of other groups and companies are involved in voluntary efforts to support pollinator health. The commenters note that these efforts will contribute to conservation of the rusty patched bumble bee.

    Our Response: We appreciate the pollinator conservation efforts our State partners and others are currently implementing and planning for the future. We look forward to working cooperatively on pollinator, and specifically rusty patched bumble bee, conservation. Despite these beneficial measures, however, the status of the species remains dire.

    (11) Comment: Several State agencies and other organizations expressed their support for bumble bee and general pollinator conservation. The commenters conveyed their commitment and willingness to continue or initiate cooperative participation in habitat management and other conservation efforts. Some commenters mentioned beneficial actions they are able to fulfill, such as the following: (1) Creating and maintaining flowering plant habitat and overwintering sites by revegetating project areas with appropriate native seed mixes, (2) timing vegetation-related maintenance activities to minimize impacts to the rusty patched bumble bee and other pollinators, and (3) restricting pesticide and herbicide use at appropriate times of the year.

    Our Response: The Service appreciates the commenters' support and interest in rusty patched bumble bee and other pollinator conservation efforts. We agree that the actions as described will contribute to the conservation of the rusty patched bumble bee and other pollinator species. We welcome the involvement of these agencies and organizations as stakeholders in recovery planning for the species. We will work with stakeholders through recovery planning to identify areas that would aid in recovery of this species and to determine the appropriate actions to take. The Service understands the importance of stakeholder participation and support in the recovery of the rusty patched bumble bee and will continue to work with all stakeholders to this end.

    (12) Comment: One State agriculture agency questioned the relative role of habitat loss versus other stressors as the true cause of population declines. Specifically, the commenter indicated the Service contradicts the statement that the rusty patched bumble bee may find suitable habitat in agricultural cropping systems by then noting that the flowering period for most crops is too short to sustain their population.

    Our Response: Our assessment determined that there is uncertainty about the relative role of the cause(s) of the population declines and range contraction since 1990. Based on the available information, we cannot narrow the primary driver down to a single cause, nor do we have reason to assume that bumble bee losses were due to uniform impacts across the range. Although listing the rusty patched bumble bee is based on population trends showing a severe decline over the past 2.5 decades with no evident prospect of a natural reversal, the individual and combined effects of the multiple possible causes of this decline cannot be ascertained based on available information. Further research into past and ongoing stressors on the species will be an essential component of any future conservation strategy for this species. Rusty patched bumble bees have been observed in agricultural landscapes, although such observances are declining with the decrease in diversity of floral resources in such areas.

    (13) Comment: Two North Dakota State agencies commented that the range where the rusty patched bumble bee would be listed should not include North Dakota, nor should critical habitat be designated in the State, because the species has not been found there since 2000.

    Our Response: The species receives the protections of the Act wherever found; thus, if the species does occur in North Dakota, it would be protected there. We will consider a range of recovery actions following listing, and will work with local and State partners to determine and implement actions in locations that will benefit the species.

    (14) Comment: A few State natural resource agencies, several species experts, and numerous other public commenters concluded that endangered species protections would benefit the recovery of the rusty patched bumble bee and provided additional suggestions for future conservation actions. Some examples of suggested actions include: Creating new pollinator habitat; enhancing existing habitat, limiting, reducing, or eliminating pesticide use and exposure (in part through work with the EPA, U.S. Department of Agriculture, and other agencies); limiting novel disease exposure by regulating commercial bumble bee colony movement; incentivizing habitat improvement activities; increasing or enacting penalties for failure to comply with restrictions and regulations; requiring municipalities to set aside a proportion of undisturbed areas for pollinator use; protecting habitat; initiating captive-rearing programs; conducting additional population surveys; limiting mowing and herbicide spraying; addressing legal barriers (e.g., local weed ordinances) to planting and maintaining habitat with flowering plants; and conducting public outreach and education.

    Our Response: There are potentially many pathways to achieving rusty patched bumble bee conservation, including many of the actions suggested by commenters. The most prudent course for recovering the rusty patched bumble bee will be developed in the ensuing years, with input from species experts, appropriate agency personnel, and the public.

    Public Comments

    (15) Comment: Several commenters questioned the validity of the data sets we used or the analytical methods of those data. Those commenters stated that the Service's assessment relied on incomplete or nontarget survey data and that the analysis had significant data gaps and uncertainties. Thus, those commenters questioned the species' decline as depicted in the SSA. Other commenters validated the Service's use of the best available science and a robust dataset. For example, one of the commenters (a scientist with bumble bee expertise) stated that the analyses and data are reliable and the SSA employs similar techniques as other status assessment tools (e.g., NatureServe rank calculator or IUCN ranking process). They also stated that the SSA analyses are consistent with internationally accepted quantitative methods for assessing extinction risk (Mace et al. 2008; IUCN 2012). Several species experts and State natural resource agencies commented that there is strong evidence suggesting that the species has experienced a severe decline and warrants protection.

    Our Response: Our analysis of the species' status and the determination to list it as an endangered species is based on the best available information. We thoroughly searched the published literature and sought out unpublished information from bumble bee and other subject matter experts in the United States, Canada, England, and Germany, as well as information from all States within the historical range of the rusty patched bumble bee. The datasets on which we relied span more than 100 years and contain more than 94,000 bumble bee records from within the rusty patched bumble bee's range. Each record has been verified. Furthermore, although surveys were not targeted for any specific bumble bee, the rusty patched bumble bee was consistently and routinely observed prior to the late 1990s; since then, however, the observations have dropped off precipitously. In response to the decline, a concerted effort was put forth by several experts in the early 2000s to search for rusty patched bumble bees. Despite this increase in effort specifically targeting the rusty patched bumble bee, observations of the rusty patched bumble bee continued to drop. Further, to account for the lack of standardization in the annual survey interval, we grouped records into 10-year blocks to assess populations over time. Finally, although we agree that there are gaps in our knowledge of rusty patched bumble bee ecology, this information is not germane to determining whether the species warrants protection under the Act. These unknowns are important to devising a conservation strategy, and we will be working with partners to resolve many of these information gaps as we proceed with recovery.

    (16) Comment: Several industry groups commented that there is no evidence in the SSA report, proposed rule, or elsewhere in the administrative record that the Service requested all available data from each of the States within the historical range of the rusty patched bumble bee or from the cooperative extensions of the USDA Natural Resources Conservation Service.

    Our Response: In December of 2015, we requested data and reports from all of the 31 States within the known historical range of the species. We also invited them to attend a followup webinar regarding the SSA process and reminded them of the information request. Furthermore, we requested a review of the draft SSA report from numerous species experts and State natural resources agency staff (e.g., Department of Natural Resources or equivalent) within the range of the rusty patched bumble bee. During that review, we received responses from 15 species experts (as peer reviewers), and 6 State agencies provided us with additional data and information. We also used verified location data available from Bumble Bee Watch (www.bumblebeewatch.org), a collaborative project to gather baseline data about the distribution and abundance of North America's bumble bees. Thus, we requested available data from all State agencies, multiple species experts, and other organizations throughout the historical range of the species. Additionally, we requested comments and information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, and any other interested party during the public comment period on the proposed rule. We considered all information that we received throughout the process in this final listing determination.

    (17) Comment: A few commenters stated that the Service did not utilize the best available science and should revise the SSA and the proposed rule to ensure that it is based on the best available science. Further, two commenters requested that the proposed listing be withdrawn until a more complete and thorough evaluation is completed.

    Our Response: In accordance with section 4 of the Act, we are required to make listing determinations on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (www.fws.gov/informationquality/), provide criteria and guidance and establish procedures to ensure that our decisions are based on the best scientific data available. They require us, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to make listing determinations.

    Primary or original information sources are those that are closest to the subject being studied, as opposed to those that cite, comment on, or build upon primary sources. The Act and our regulations do not require us to use only peer-reviewed literature, but instead they require us to use the “best scientific and commercial data available” in listing determinations. We have relied on published articles, unpublished research, habitat modeling reports, digital data publicly available on the Internet, and the expertise of subject biologists to make our determination for the rusty patched bumble bee. Although many information sources were used, we acknowledge that data gaps for the species still exist; however, our analyses made the data gaps explicit and we utilized expert opinion to help bridge the data gaps.

    Furthermore, in accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited peer review from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. Additionally, we requested comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties concerning the proposed rule. Comments and information we received helped inform this final rule.

    (18) Comment: A few industry organizations commented that the existing administrative record does not support the proposed listing decision. One commenter further stated that, for the Service to find that a species is “endangered” or “in danger of extinction throughout all or a significant portion of its range,” it needs to show that the species is “currently on the brink of extinction in the wild.” They stated that, while the proposed rule suggests that the Service likely believes that the rusty patched bumble bee fits into the third and/or fourth category in the December 22, 2010, memo to the polar bear listing determination file, “Supplemental Explanation for the Legal Basis of the Department's May 15, 2008, Determination of Threatened Status for the Polar Bear,” signed by then Acting Director Dan Ashe (hereafter referred to as Polar Bear Memo), the administrative record shows that it fits into neither.

    Our Response: The Service used the SSA framework to assess the biological status of the rusty patched bumble bee and describe the species' overall viability. See the Summary of Biological Status and Threats section of this rule for our analysis. As required by section 4(a)(1) of the Act, the Service determined whether the rusty patched bumble bee is an endangered or threatened species based on the five listing factors. The Service did not substitute the assessment of the species' overall viability for the standards and definitions in the Act, but used the SSA report to relate the species' biological status and threats to the five listing factors and definitions of “endangered” and “threatened” in the Act. A complete discussion of how the Service has applied these terms to the rusty patched bumble bee is provided in the Determination section of this final rule.

    In assessing the status of the rusty patched bumble bee, we applied the general understanding of “in danger of extinction” discussed in the Polar Bear Memo. The Polar Bear Memo provides further guidance on the statutory difference between a threatened species and an endangered species and clarifies that if a species is in danger of extinction now, it is an endangered species. In contrast, if it is likely to become in danger of extinction in the foreseeable future, it is a threatened species. As detailed in the Determination section of this final rule, we conclude, based on our analysis of the best scientific and commercial information, that the rusty patched bumble bee is currently in danger of extinction throughout all or a significant portion of its range, and thus meets the Act's definition of an endangered species.

    (19) Comment: One species expert commented that he has collected thousands of bumble bee specimens in the range of this species since 1999, but has not observed new rusty patched bumble bee populations in those targeted searches. One entomological organization noted that several of their members who have taken up the study of native pollinators within the last 5 years have never seen a rusty patched bumble bee in the wild. Additionally, two species experts (who also were peer reviewers of the SSA) and two private citizens, who have discussed the decline of this species with numerous other species experts, commented that there is strong evidence the species has disappeared from most of its former range; without legal protection, the scientific consensus is that this species is heading for imminent extinction. Another species expert stated that the rusty patched bumble bee was common throughout the upper Midwest in the early 1990s. The expert started systematic surveys at sites with relatively recent records (1990s) in 2007 but did not find any rusty patched bumble bees until 2010.

    Our Response: We appreciate the commenters' confirmation of the data we have, which show a significant decline in rusty patched bumble bee occurrences.

    (20) Comment: Several commenters asserted that the proposal fails to account for assumptions in the SSA report or the uncertainties underlying the projections, or that the proposal is premised on uncertainty rather than data. Some of those commenters stated that, although the SSA provides a list of 12 key assumptions made in the analysis, the Service did not acknowledge those assumptions in the proposed listing rule and does not evaluate how those assumptions could affect the conclusions. The commenters further added that limitations and uncertainties are prevalent throughout the SSA report and proposed listing rule, but are not acknowledged or accounted for in either.

    Our Response: As stated in the SSA report, our analyses are predicated on multiple assumptions, which could lead to over- and underestimates of viability. In total, however, we find that our predictions overestimated viability of the species. Specifically, we conclude that 9 of the 12 key assumptions overestimated viability. It was unclear to us whether the remaining three assumptions were underestimated or overestimated. Therefore, even without these assumptions, we would have likely underestimated the future extinction risk of the rusty patched bumble bee. Peer reviewers also indicated that our analyses underestimated extinction risk. Although not explicitly stated in the rule, this potential underestimation of the extinction risk to the species would only strengthen our endangered determination.

    (21) Comment: Industry groups commented on the Service's approach to modeling and analyses. One group commented the Service should revise the modeling and analysis to account for ongoing public and private efforts to conserve pollinators. The group further encouraged the Service to include additional model scenarios in the SSA addressing changes in habitat while including different disease risk scenarios.

    Our Response: We evaluated both positive and negative influences acting upon the species currently and potentially into the future. We developed three scenarios that represent the most likely future scenario, a reasonable worse-case future scenario, and a better-case future scenario. These future scenarios were based on how the primary stressors might act on the populations into the future; all scenarios assumed the current conservation efforts would continue into the future. We could have devised additional future scenarios accounting for different disease and conservation efforts, but the scenarios developed represent a reasonable range of possible outcomes. As all three scenarios yielded similar population trajectories, we did not see a need to model additional scenarios.

    (22) Comment: Several other industry groups commented on the inherent limitations and uncertainties associated with conservation biology and projections of species viability. The commenters referenced multiple sources in the publication, Endangered Species Act: Law, Policy, and Perspectives (Baur and Irvin, 2010) and explained that limitations and uncertainties are prevalent throughout the SSA Report and proposed listing, but are not acknowledged or accounted for in either.

    Our Response: The Service recognizes inherent limitations and uncertainties in the field of conservation science. We considered the best scientific and commercial data available regarding the rusty patched bumble bee to evaluate its potential status under the Act (see our response to comment 15). In addition, the Service uses the SSA analytical framework to address uncertainties, and the report states multiple assumptions (see our response to comment 20). Modelers, species experts, and endangered species biologists work cooperatively to best match modelling goals and information needs. Further, our Policy on Information Standards under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (www.fws.gov/informationquality/) provide criteria and guidance, and establish procedures to ensure that our decisions are based on the best scientific data available.

    (23) Comment: Multiple commenters provided additional expert-verified rusty patched bumble bee observations that were not included in our original SSA analyses. In particular, commenters provided rusty patched bumble bee locations that were either verified by experts or submitted to the Bumble Bee Watch database after we conducted our analyses.

    Our Response: We have incorporated the information into the Background section of the preamble to this final listing rule. After our original analysis was complete, a small number of additional expert-verified rusty patched bumble bee records were discovered on citizen science Web sites and/or were provided to us by species experts. Of the records provided to us during the comment period, we were not aware of eight additional rusty patched bumble bee records that were located in Wisconsin. All additional rusty patched bumble bee records were incorporated into our database and we re-ran the extinction risk analyses in the SSA; this information is considered in this final rule. The additional records received since our original analyses do not change our overall determination.

    (24) Comment: Two commenters provided survey or museum data. In particular, these commenters provided some clarifications about the species in Maine and Virginia and stated that most museum records for this species are available from the Global Biodiversity Information Facility (GBIF) Web site.

    Our Response: We have incorporated the commenters' clarifications into the Background section of the preamble to this final listing rule. We were already aware of the Maine, Virginia, and GBIF records and utilized those data in our SSA analyses.

    (25) Comment: A few commenters claimed that there have been recent rusty patched bumble bee observations in Monroe County in West Virginia. They further stated that there may be suitable habitat for the species in Monroe, Summers, and Greenbrier counties in West Virginia.

    Our Response: We followed up on this claim and determined that these observations have not been verified by experts. We have asked for further proof of the observations, such as a specimen or clear photographs, such that the species could be positively identified by experts, but have not received the requested information. We have taken note that there may be suitable habitat in additional locations.

    (26) Comment: One group commented that the SSA does not support the claim that the rusty patched bumble bee is suffering from significant habitat loss and degradation. Specifically, the group asserted that the Service cannot reconcile the long-term habitat loss with the assertion that the declines in the rusty patched bumble bee populations began in the late 1990s or that the species is a habitat generalist, which would minimize habitat impacts.

    Our Response: Although empirical data are currently unavailable regarding the level of habitat loss and degradation affecting the rusty patched bumble bee, we do know that habitat impacts have caused decline of other Bombus species (e.g., Goulson et al. 2015, p. 2; Goulson and Darvill 2008, pp. 193-194; Brown and Paxton 2009, pp. 411-412). This, in conjunction with the declines in distribution and relative abundance since the 1990s lead us to infer that habitat changes are, at the least, a contributing factor to the current precarious status of this species. Recognizing the uncertainty regarding the effects of habitat loss, we consulted with bumble bee experts with regard to the likely contribution of habitat impacts to the decline of this species. Although their conclusions varied, none of these experts stated that habitat loss and/or degradation played no role in the decline.

    We agree that habitat impacts are not likely the sole cause of the rusty patched bumble bee declines; rather, as explained, we find there are a multitude of stressors acting on the species. We acknowledge, however, that habitat losses may have become more of a factor as the colonies have been compromised by other, seemingly new, exposures to specific insecticides and pathogens.

    (27) Comment: One commenter stated that habitat loss and degradation as a factor of the rusty patched bumble bee decline is based on the assumption that the abundance of wildflowers has declined due to agricultural intensification, urban development, and increased fragmentation of natural landscapes, but it is not clear that persisting populations of the rusty patched bumble bee are associated with a particular habitat type, such as native prairie, that has undergone a precipitous decline. The commenter asserted that floral abundance has probably not declined greatly in the nonagricultural and relatively undeveloped Appalachian region where the rusty patched bumble bee has likely disappeared.

    Our Response: We agree that habitat loss alone cannot explain the disappearance of the rusty patched bumble bee in regions where apparently suitable habitat conditions, including abundant wildflower resources, remain. It follows that multiple stressors, with habitat impacts being only one, have had different relative effects in different parts of the range. We hasten to add, however, that these are inferences based on the conjunction of increased use of pesticides, possible impacts from the pathogen N. bombi, and ongoing habitat changes with the drastic decline of the rusty patched bumble bee from the 1990s to present. More investigation needs to be done into the habitat requirements of this species to design effective and focused habitat conservation strategies.

    (28) Comment: One group emphasized the importance of woodland habitats that provide early spring ephemeral flowers, which are important food sources for foundress rusty patched bumble bee queens during the time they are establishing colonies. As stated by the commenter, these woodland habitats are subject to a variety of threats including invasive plant and insect species, development, and overgrazing from the overpopulation of white-tailed deer.

    Our Response: We agree that early spring floral resources are vital for colony establishment. Conservation strategies for meeting the essential habitat requirements for the rusty patched bumble bee will necessarily include local and microhabitat conditions that address its needs throughout its life cycle and at the population level.

    (29) Comment: Several commenters expressed that the information the Service provided on pathogens and their role in the decline of the rusty patched bumble bee is well-supported by available literature and current research findings, whereas another commenter stated that the proposed rule does not cite any evidence that pathogens are affecting the species. That commenter indicated that the proposal states that experts have surmised that N. bombi may not be the culpable pathogen causing declines in the species.

    Our Response: We acknowledged the uncertainty regarding the role of pathogens in the decline of the rusty patched bumble bee in the SSA report and the proposed rule. Our current understanding of this stressor on the species is largely extrapolated from studies and observations of pathogenic effects on other bumble bee species, as the rusty patched bumble bee is too depleted to provide needed sample sizes. Nonetheless, as several commenters noted and as pathogen experts have determined, there is considerable evidence of pathogens adversely affecting bumble bees. Although, for the most part, bumble bee species carry a large pathogen load with which they have co-evolved, the congruence between the decline of the rusty patched bumble bee and the collapse of the commercially bred western bumble bee (B. occidentalis), attributed by some researchers to the microsporidium Nosema bombi, led researchers to suspect that this pathogen was at least one agent of the decline. The experts we consulted during the course of the assessment agreed that transmission of one or more pathogens, whether N. bombi or not, is very likely to be at least a contributory, if not the primary, cause of the decline of the rusty patched bumble bee. Indeed, one eminent expert pointed out that the rapid and widespread decline of the species may be plausibly explained only by an epizootic event, even if the particular pathogen remains, to date, unknown.

    (30) Comment: A commenter stated that the proposal asserts that a variety of pesticides are impacting the rusty patched bumble bee but provides no direct evidence. They further commented that specific data showing that neonicotinoids have affected the rusty patched bumble bee specifically are not cited, because, they assert, no studies have been performed to examine the asserted impacts of neonicotinoid use on the rusty patched bumble bees. The commenter stated that, absent such data, alleged impacts from pesticides do not support the proposed listing decision.

    Our Response: We acknowledge that although other bumble bee species have been studied, we are not aware of any direct studies of the effects of pesticides on the rusty patched bumble bee. As with most species that have exhibited severe declines, potentially lethal studies (e.g., toxicity studies) on the species are no longer feasible, because not enough specimens are available for a scientifically meaningful study. We infer, however, that studies of the effects of pesticides on other bumble bee species will likely reflect their effects on the rusty patched bumble bee, because these species have similar life-history traits (e.g., generalist foragers collecting pollen from the same food sources). We used studies that documented impacts to other bumble bees as surrogates to estimate the impacts of various stressors on the rusty patched bumble bee. The pesticide discussions in the SSA focused on research that studied the effects of various chemicals on bumble bees (Bombus spp.), noting that much research has also been conducted on the European honey bees (Apis mellifera). Bumble bees may, in fact, be more vulnerable to pesticide exposure than European honey bees.

    (31) Comment: Several commenters suggested that the Service use the U.S. Geological Survey (USGS) National Pesticide Synthesis data to illustrate trends such as the increasing application of neonicotinoids over time within the rusty patched bumble bee's range.

    Our Response: We used USGS National Pesticide Synthesis data to help understand the annual regional trends of three neonicotinoids (imidacloprid, clothianidin, and thiamethoxam) within the historical range of the rusty patched bumble bee. We understand the limitations of the data: specifically, only county-level estimates were provided in the USGS dataset and extrapolation methods were used to estimate pesticide use for some counties. Therefore, we used these graphs simply to discern possible temporal correlations between bumble bee (and some species of butterfly) declines and neonicotinoid use. We acknowledged that the exact causes of the decline remain uncertain. In the SSA, we noted that we could have also evaluated the trends in use of numerous other chemicals, but focused only on the three commonly used neonicotinoids, as they represent a class of chemicals that have been implicated in the decline of bees. We will continue to review and evaluate the use of various chemicals and impacts on the rusty patched bumble bee during recovery planning.

    (32) Comment: Two commenters provided recent research papers on risks to bees posed by pesticides that were not included in our analyses, including new studies on the effects of pesticides to bumble bees and other bees, research on the effects fungicides have on bees, studies about pesticide contamination of pollinator habitat, as well as correlational studies attempting to understand the effects of pesticides on pollinators at a timescale relevant to population-level processes.

    Our Response: We appreciate the new information. Studies demonstrating lethal and sublethal effects of pesticides to bees and studies correlating pesticide use trends to pollinator population declines provide further evidence that pesticides likely contributed to the decline of the rusty patched bumble bee. We will continue to review the effects of pesticides during recovery planning and may use an adaptive management approach to recovery to refine actions related to pesticides.

    (33) Comment: A commenter, citing Watts and Williamson (2015), stated that the persistent organochlorines, like Endosulfan and the highly toxic organophosphates, have been replaced by the neonicotinoids in several countries, trading one set of problems for another. The commenter noted that replacement of one suite of harmful chemicals with another perpetuates an endless cycle of replacing one chemical with another.

    Our Response: We mention the potential risk of organophosphates to honey bees in our SSA and will consider reviewing the effects of organochlorines to bumble bees in greater detail during recovery planning for this species.

    (34) Comment: One commenter requested that the Service review the pesticides used in mosquito control to see if they have resulted in bee declines, and, if so, ban their use.

    Our Response: The issue of banning use of specific chemicals is outside the scope of this rulemaking. During the recovery planning process, we will work closely with contaminant specialists within and outside the government to investigate chemicals that may be causing population-level harm to the rusty patched bumble bee.

    (35) Comment: Several commenters asserted that the analysis of the relationship between neonicotinoids and rusty patched bumble bee population declines relies on the assumption that the introduction of neonicotinoids coincided with a steep decline in rusty patched bumble bee populations. They suggest that the decline in rusty patched bumble bee populations preceded the widespread use of neonicotinoids in its range, and that the bees are persisting in places with widespread neonicotinoid use on corn and soybeans. The decline of the rusty patched bumble bee, the commenters conclude, began before the advent of the neonicotinoids, with the sharpest decline of the bee beginning in the 1990s and coinciding with the use of imidacloprid beginning in 1995, which had minimal use compared to imidacloprid usage beginning in 2000. Given the uncertainty about the relevance of the timing of neonicotinoids' introduction to rusty patched bumble bee population decline, the commenters question its emphasis in the SSA.

    Our Response: The EPA approved the registration of imidacloprid in 1994, and it became widely used in the United States starting in the mid-1990s; clothianidin and thiamethoxam entered the market beginning in the early 2000s. According to the USGS National Synthesis database, beginning in 1995, imidacloprid was used in nearly every State with historical records of the rusty patched bumble bee, and use increased and spread in the following years. Although it is difficult to pinpoint exactly when the species' decline began, the data show that the precipitous declines of the rusty patched bumble bee manifested around 1995 and continued into the early 2000s. This time period coincides with increased neonicotinoid use.

    It is difficult to determine how much of the species' decline is due to a single factor, including neonicotinoids, as there are a myriad of other stressors (e.g., pathogens, parasitoids, and diseases) acting upon the species, and all likely interacting synergistically. However, lethal and sublethal effects to bees have been documented for this class of chemicals, so it is reasonable to think that they likely are contributing to the decline. Furthermore, the additive and synergistic effects of exposure to multiple pesticides at multiple times may exacerbate the toxicity of exposure to any single pesticide, and thus, additional pesticides in combination with others may pose risks to bees as well.

    (36) Comment: Several commenters stated that, by focusing on pesticides as a risk factor in the SSA, the Service appears to have ignored the advice of the experts they surveyed, who concluded that 31 percent of the rusty patched bumble bee decline was likely due to pathogens and 23 percent of the decline was likely due to habitat loss. Other stressors included pesticides (15 percent), climate change (15 percent), and small population dynamics (15 percent). Yet, in the SSA synopsis, pesticides are listed second among the top three stressors causing the decline of the species.

    Our Response: The list of potential causative factors in the SSA synthesis was not ordered by relative importance; rather, it was listed alphabetically. According to expert input and literature review, we find that habitat loss and degradation, pathogens, pesticides, and small population dynamics are the primary contributing factors to the declines of the rusty patched bumble bee. Although the relative contribution of pesticides, pathogens, loss of habitat, small population size, and climate changes is not known, the prevailing data indicate that multiple threats are acting, most likely synergistically and additively, on the species. This combination of multiple threats is likely more harmful than a single threat acting alone.

    (37) Comment: One commenter noted that the SSA does not cite field studies that found no adverse effects when bees are placed near treated crops and allowed to forage naturally. The commenter provided citations for four field studies with bumble bee colonies placed in or near bee-attractive crops grown from seeds treated with neonicotinoids, and which reported no adverse effects. They further stated that several published studies have reported adverse effects on developing bumble bee colonies that were exposed in confined settings to artificial diets spiked with various levels of neonicotinoids. The commenter also stated that the SSA does not mention that test levels or exposure scenarios in most of these studies have been criticized as unrealistically high.

    Our Response: We reviewed over 100 published reports and papers regarding the effects of pesticides to bees, focusing primarily on bumble bee studies. Most of the laboratory studies that we reviewed reported at least one sublethal and/or lethal effect to bees, as did some of the field studies. We acknowledge that many studies that we reviewed were not conducted in the field, and we acknowledge that there are studies that did not find adverse effects. The totality of data, however, suggests some insecticides kill bumble bees and others cause sublethal effects. Further, researchers often also note the limitations of laboratory studies. For example, many lab studies that we reviewed were conducted over relatively short-term exposure durations (e.g., 4 to 28 days), which may not reflect realistic longer term exposures in the field. Additionally, although bees likely experience exposure to multiple chemicals in the field, most studies did not address the risk posed from the additive and synergistic effects of multiple exposures to multiple pesticides. Exposure to multiple pesticides over multiple time periods may exacerbate the toxicity of exposure to any single pesticide.

    (38) Comment: Two commenters were concerned that the pesticide discussion fails to consider all of the information and expertise available from the government and private sources. For example, these commenters state that there is no reference to any of the EPA pesticide evaluation methods for bees, risk assessments for pesticide products, or discussions with scientists and risk managers in EPA's Office of Pesticide Programs, whose input should be essential in any science-based discussion of pesticide risks to pollinators. According to the commenters, this can lead to an emphasis on pesticides as a causal agent that may not be warranted. The commenters noted that the EPA is currently reviewing the risk of neonicotinoids to pollinators, and has released draft pollinator risk assessments for some of the compounds.

    Our Response: The Service considered several documents that were not cited in the SSA. Although not cited in the SSA document, for example, the Service reviewed EPA's “Preliminary pollinator assessment to support the registration review of imidacloprid” (January 2016); this assessment evaluated the risk of imidacloprid to managed honey bees at both the individual and colony levels and concluded that imidacloprid can pose risks to honey bee health. Notably, the assessment did not evaluate risks to other bee or bumble bee species, nor did it evaluate the risk when imidacloprid is mixed with other chemicals, which is a more realistic field condition. We also reviewed the summary of EPA and Health Canada's “Re-evaluation of Imidacloprid—Preliminary Pollinator Assessment” (dated January 18, 2016 and available online at http://www.hc-sc.gc.ca/cps-spc/pest/part/consultations/_rev2016-05/rev2016-05-eng.php); this assessment indicated that the results of the available Tier II colony-level feeding studies with non-Apis bees (non-honey bee) suggested that bumble bees may be more sensitive to imidacloprid exposure than honey bees, and that measured pollen and nectar residues were often above the lowest dose where colony effects were detected in bumble bee feeding studies, suggesting a potential for risk to bumble bees. Lastly, we reviewed “Joint PMRA/USEPA Re-evaluation Update for the Pollinator Risk Assessment of the Neonicotinoid Insecticides”(January 6, 2016), which provided a timeline of anticipated milestones for EPA's pollinator assessments—only the imidacloprid assessment was anticipated to be in preliminary form before the Service needed to complete its proposed determination. Thus, although not cited in the SSA, we reviewed the pertinent literature that was available to us.

    (39) Comment: Several commenters stated that the Service should analyze the potential effects of herbicides separately from insecticides and fungicides in the stressor analyses. As “pesticides” is used as a general term to describe insecticides, fungicides, and herbicides, the commenters note that the SSA analysis and supporting scientific studies are specific to the effects of neonicotinoids, a distinct class of insecticides. They assert that the Service did not provide enough discussion or justification for including herbicides, or pesticides in general, as a primary stressor for the rusty patched bumble bee.

    Our Response: While the SSA evaluated neonicotinoids as potential stressors to the rusty patched bumble bee, we also acknowledged that numerous other chemicals have documented lethal and sublethal effects to bumble bees. Our discussion of herbicides in the SSA primarily focused on the use of herbicides in agricultural, urban, and natural landscapes and the likely consequential loss in flowering plants and, therefore, food availability for the rusty patched bumble bee.

    (40) Comment: One group requested that the Service provide definitive and functional guidance addressing herbicide use specifically, as distinct from pesticide or insecticide use.

    Our Response: Functional guidance addressing herbicide use methods goes beyond the scope of this final listing document and is more appropriate for recovery planning. We will consider developing management protocols for herbicide use during recovery planning for this species. In the interim, there are guidelines available from Xerces Society and other organizations engaged in pollinator conservation and management.

    (41) Comment: Some industry groups asserted that the information on possible effects of climate change is too speculative to use in the analysis, as the potential effects identified in the assessment have not yet occurred, and the potential impact on the rusty patched bumble bee specifically remains unstudied and unknown. One commenter also expressed that, because the proposal does not project when such effects might occur, there is a “temporal disconnect that precludes relevance to any determination that the rusty patched bumble bee currently is `on the brink of extinction.' ” The commenters requested that the Service provide additional information on the species' climate change vulnerability assessment and relevant data to support the conclusion that climate change is one of the factors contributing to the proposed endangered status.

    Our Response: Although we developed a potential future scenario in the SSA that included impacts from climate change, all the future scenarios contribute to our understanding of the risk to the species, and thus the decision to list the rusty patched bumble bee as an endangered species. The widespread, precipitous decline that has occurred to date has rendered the rusty patched bumble bee in danger of extinction. During the recovery planning process, however, we will investigate more closely the vulnerability of rusty patched bumble bee to the effects of climate change and the implications of this vulnerability.

    (42) Comment: One commenter claimed that the Service's assertion that the small population size of the rusty patched bumble bee and the species' reproduction strategy make the species more susceptible to impacts from other factors is faulty, because that position assumes that the species' population size and range have dramatically decreased. The commenter contended that the proposal does not demonstrate such a decline with reliable data.

    Our Response: Based on the best available data, we have determined that the rusty patched bumble bee has declined precipitously with remaining known populations documented by only a few individual bees. As explained in the SSA, a healthy population consists of multiple viable colonies, which are composed of hundreds of worker bumble bees. It is unknown what exact small population size would trigger a diploid extinction vortex phenomenon, but given the data, it is reasonable to conclude that the remaining populations are below sustainable levels, and, if they have not yet reached vortex levels, they will soon if declines are not arrested.

    (43) Comment: Several commenters mentioned additional stressors or threats the Service did not evaluate in the assessment, including the role of natural predators, the role that managed pollinators play in spreading and amplifying diseases to bumble bees and the pathogenic effects those diseases can have on bumble bees, vehicle collisions, and invasive plant and animal species.

    Our Response: Our analysis in the SSA focused on what we determined to be the primary stressors negatively affecting the rusty patched bumble bee: pathogens, pesticides, the effects of small population size, habitat loss and degradation, and the effects of climate change. Although we recognize there may be other factors negatively affecting the species, these factors are not likely as influential as those mentioned. We will, however, consider the role of additional stressors in our recovery planning efforts and the effects of such stressors on specific populations, as appropriate.

    (44) Comment: One organization expressed concerns about how the Service defined the range of individual populations of the rusty patched bumble bee. Specifically, the Service assigns a 10-kilometer (km) range for colonies in the habitat needs discussion, but the comment notes that an individual rusty patched bumble bee range is less than 1 km (0.62 miles).

    Our Response: We used a 10-km × 10-km area to delineate populations, not colonies. All records found within a 10-km × 10-km area were considered to be a single population, which is composed of multiple colonies. An individual bumble bee generally occupies an area less than 1 square km, but the populations, which are composed of multiple individual bees in multiple colonies, span across a larger range.

    (45) Comment: One organization expressed concern that the Service did not incorporate growing season hardiness zones into the range estimates, especially since the species is active early and late in the growing season. They provide the example that there may be portions of a county with a shorter floral growing season than other parts of the same county.

    Our Response: The range of the rusty patched bumble bee represents the broad-scale occurrence of the species and was derived by plotting all records of occurrence; that is, where individual bumble bees were recorded. The suitability of any given site is influenced by a myriad of factors, including providing sufficient quantity of floral resources for the entire active season. Whether a particular spot on the landscape provides this requirement was not assessed in the SSA; however, this assessment is not needed to determine the broad range of the species.

    (46) Comment: A few commenters stated that rusty patched bumble bee populations appear to be persisting in the Midwest or areas of high agriculture, where pesticide use is prevalent.

    Our Response: Rusty patched bumble bee populations still exist in the Midwest. Although we have not completed a thorough site-specific analysis, and although there are some survey biases to consider, we noticed that many of the remaining populations are within urban areas where they may not be exposed to the same level of pesticides as in the rural, agricultural areas. The extent of rusty patched bumble bee persistence in agricultural areas and the corollary impact of pesticides on the species will be investigated further during recovery planning.

    (47) Comment: A few industry commenters stated that there are ongoing studies by USDA—Agricultural Research Service and others that will aid in addressing knowledge gaps and assist the Service in making an informed decision and complying with the Act's mandate to use the best available science. Many of these studies conclude in 2017.

    Our Response: While we are pleased to hear of additional studies that may soon become available and assist us and our partners with a recovery plan for the species, we are required to make our listing determinations based on the best scientific and commercial data available at the time of our rulemaking. We searched the published and gray literature, and solicited peer review of our evaluation of the available data. These studies are not available for the rulemaking, but results will certainly be used in future recovery planning efforts.

    (48) Comment: A few commenters noted that the EPA has a statutory role to determine the ecological risk of all registered pesticides under FIFRA. They referenced the EPA's comprehensive, regulatory process for registering pesticides.

    Our Response: We recognize the work that EPA does to protect pollinators and acknowledge the statutory role that EPA has under FIFRA. The EPA uses honey bees in its pesticide risk assessments (EPA 2014, pp. 2 and 6); however, our SSA details why we conclude that bumble bees are likely more susceptible than are honey bees to pesticides. In fact, the EPA “acknowledges the uncertainty regarding the extent to which honey bees may be a reasonable surrogate for native insect pollinators” (EPA 2015, p. 2). However, we have added an acknowledgment of FIFRA as a regulatory mechanism in the final rule.

    (49) Comment: One commenter stated that, “considering the wide-ranging and extensive impact to farmers attempting to use pesticides vital to sustaining crop production,” inconsistent recommendations from the Service and EPA could create an “impossible situation” for the agricultural community if they follow label restrictions according to one federal standard, but are then in potential violation of another federal standard for that same action.

    Our Response: In this final rule, we provide some actions prohibited by section 9 of the Act and specifically use the phrase “where the species is known to occur.” We use this phrase to clarify that there is a geographical context to potential avenues of illegal take; that is, we want to avoid the interpretation that the general use of pesticides, for example, could be prohibited per the listing of the rusty patched bumble bee. More specifically, the rusty patched bumble bee would have to be exposed to particular actions for those actions to cause take, and the bee could only be exposed if it occurs in the project area. The Service can provide technical assistance to help determine whether the rusty patched bumble bee may be present in a specific area. If noxious weed control is needed where the rusty patched bumble bee is likely to be present, for example, the Service will work with landowners or land managers to identify techniques that avoid take or allow for it to occur legally.

    (50) Comment: One utility company expressed concerns that, if the rusty patched bumble bee is listed, the requirements of two regulatory agencies will be in conflict; the North American Electric Reliability Corporation requires a utility to clear vegetation that interferes with transmission and distribution lines, and the Service would prevent a utility from doing so to protect a listed species and its habitat. The commenter suggests that, because of this potential conflict between two legal requirements, the Service should work with electric cooperatives to identify a means by which they are able to meet both obligations.

    Our Response: Listing the rusty patched bumble bee as an endangered species does not prevent utilities or any other entity from complying with other laws. If such compliance will incidentally lead to take of rusty patched bumble bees, the project proponent is required to obtain the appropriate permit or exemption before implementing the action. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

    (51) Comment: One commenter noted that the major crops grown within the range of the rusty patched bumble bee that receive neonicotinoid treatment are corn and soybeans, and that use of neonicotinoids on these crops is mainly as a seed treatment, which limits potential exposure to bees.

    Our Response: The Service is aware that many seed treatments are widely used for corn and soybean crops. The EPA's risk assessment process for evaluating soil applications and seed treatments is similar to its assessments for foliar applications, “except that risk from contact exposure is not evaluated” (EPA 2014 p. 10). The EPA states, “For soil application, it is generally assumed that exposure of honey bees from direct contact with the pesticide is minimal, given the nature of the application to bare soil, although exceptions may occur if applications are made with bee-attractive weeds present.” However, they noted that “Contact exposure of non-Apis bees (solitary and ground-nesting bees) may be significant with soil applications, although the extent of this potential exposure is uncertain. It is also noted that for seed treatments, exposure of bees to pesticides has been documented via drift of abraded seed coat dust when planting under certain conditions; however, there are multiple factors determining the extent to which dust-off occurs” (EPA 2014, p. 10). Because rusty patched bumble bee is a ground-nesting species and fertilized queens overwinter in the soil, they could be susceptible to additional exposure pathways that honey bees are not (e.g., neonicotinoids in the soil that have not yet been taken up by plants and thus cause an additional dermal exposure pathway). Therefore, it is reasonable to conclude that rusty patched bumble bees may be more exposed to insecticides used as seed treatments (because the chemical can move through the soils (e.g., Goulson 2013, pp. 979-980)) than are honey bees, which nest above ground.

    (52) Comment: One commenter stated that, under section 4(b) of the Act, the Service is required to take “into account those [conservation] efforts, if any, being made by any State” before making a listing decision. Moreover, the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) requires the Service to consider conservation efforts, including conservation efforts that have not yet been implemented or demonstrated their effectiveness, so long as the Service is certain that the conservation effort will be implemented and, once implemented, will be effective. The commenters contended that failure to comply with PECE is grounds for vacating a final listing rule. Other commenters stated that the proposed rule does not sufficiently address the significant public and private efforts currently under way to address pollinator issues that will benefit the rusty patched bumble bee.

    Our Response: In the Summary of Biological Status and Threats section of this final rule, we include consideration of conservation efforts by States and other beneficial factors that may be affecting the rusty patched bumble bee. The Service's PECE policy applies to formalized conservation efforts (i.e., conservation efforts identified in a conservation agreement, conservation plan, management plan, or similar document) that have not yet been implemented or those that have been implemented but have not yet demonstrated whether they are effective at the time of listing. We acknowledge that increased awareness of and conservation measures for pollinators in general may have fortuitous beneficial effects on rusty patched bumble bee. We are not aware of any formalized conservation efforts for any of the specific rusty patched bumble bee locations.

    (53) Comment: One commenter supports creating environments where the rusty patched bumble bee can rebound while avoiding a regulatory framework that impedes responsible agricultural practices. They further noted that doing so would require cooperating agencies to receive adequate long-term Federal funding to promote habitat restoration or enhancements.

    Our Response: The listing determination must be made solely on the biological status of the species. That said, the Service generally considers regulatory restrictions alone to be both insufficient and less preferred as a primary means of achieving the conservation of listed species. We seek to work collaboratively with other agencies and organizations (public and private), and with individual private landowners on proactive conservation efforts.

    (54) Comment: One commenter, supporting the action to list the rusty patched bumble bee, urged the Service to work cooperatively with Canada on conservation efforts for this species.

    Our Response: We appreciate the interest in bumble bee conservation and look forward to continuing our coordination with Canada as we begin recovery planning and implementation for the rusty patched bumble bee.

    (55) Comment: One commenter stated that accurate identification of the rusty patched bumble bee in the field may be difficult, even for a trained specialist. Voucher specimens of sterile female workers or males may be essential to understand and study pollinator populations. As such, the possibility of accidental take of a listed insect should be considered and permitted. Another commenter stated that unauthorized handling or collecting of the species is not enforceable because, as the species is difficult to identify, the specimen would require handling when conducting surveys to verify that a prohibited violation had taken place.

    Our Response: Under section 10 of the Act, the Service may permit limited take of listed species for scientific purposes or to enhance the propagation or survival of the species. The Service will consider incidental take for otherwise legal activities in our permitting (e.g., section 10 recovery permits) processes. Because the objectives of surveys may vary across the range of these species, we recommend contacting the Service's Ecological Services Field Office in your State to discuss the appropriate survey protocol to use for particular projects, habitat types, and geographic areas. To facilitate effective cooperation among agencies, organizations, and individuals interested in the distribution of the rusty patched bumble bee, the Service will consider maintaining a list of individuals who meet certain qualifications for conducting reliable identification for the target species.

    (56) Comment: A commenter remarked that there are several other apparently declining species of bumble bee including yellow-banded bumble bee (B. terricola) and American bumble bee (B. pennsylvanicus) that need evaluation and monitoring.

    Our Response: As part of its ongoing efforts to improve the effectiveness and implementation of the Act and provide the best possible conservation for our nation's imperiled wildlife, the Service has developed a National Listing Workplan (Workplan) for addressing listing and critical habitat decisions over the next 7 years. The yellow-banded bumble bee (B. terricola), for example, is in the Workplan schedule for evaluation under the Act.

    (57) Comment: Several commenters asserted that the Act has failed to recover or delist 98 percent of all listed species, and that those that have been removed were due to extinction or data error. Therefore, they contend, listing the rusty patched bumble bee as an endangered species will have no positive impact on its recovery. The commenters feel that listing the rusty patched bumble bee as endangered may negatively impact current pollinator conservation efforts being undertaken across the country.

    Our Response: The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. Protection under the Act has prevented the extinction of more than 98 percent of listed species. Once a species is listed as either endangered or threatened, the Act provides protections from unauthorized take and many tools and opportunities for funding to advance the conservation of such listed species. Further, receiving protections under the Act facilitates conservation planning and the development of conservation partnerships. The Act has been and continues to be extremely effective in preventing the extinction of species. The statement that the commenter made that “the Act has failed to recover or delist 98 percent of all listed species, and that those that have been removed were due to extinction or data error” is erroneous—there are notable exceptions to this statement where species have been removed due to successful recovery, such as the bald eagle and peregrine falcon.

    The listing of a species does not obstruct the development of conservation agreements or partnerships to conserve the species. Once a species is listed as either endangered or threatened, the Act provides many tools to advance the conservation of listed species. Conservation of listed species in many parts of the United States depends on working partnerships with a wide variety of entities, including the voluntary cooperation of non-Federal landowners. Building partnerships and promoting cooperation of landowners are essential to understanding the status of species on non-Federal lands, and may be necessary to implement recovery actions such as reintroducing listed species, habitat restoration, and habitat protection.

    (58) Comment: Several commenters stated that the Service should recognize current national attention on pollinators, and that these ongoing conservation efforts should allow a warranted but precluded listing because the wide array of conservation actions for other pollinators may lead to recovery of the rusty patched bumble bee.

    Our Response: In making our determination as to whether the rusty patched bumble bee meets the Act's definition of an endangered or threatened species, we considered the current conservation measures available to the species (see Summary of Biological Status and Threats—Beneficial factors). The increased effort to conserve pollinators may have an incidental positive impact on the rusty patched bumble bee. However, we are not aware of specific conservation measures for bumble bees at any of the current rusty patched bumble bee locations in the United States. Although general pollinator conservation efforts can provide some benefits to the rusty patched bumble bee, bumble bees like this species have unique life-history characteristics and biological requirements that are not addressed by these general efforts. Because the rusty patched bumble bee has experienced such severe population declines throughout its range, there is a need to develop and implement regionally appropriate, bumble bee-specific recommendations to aid in recovery of the species.

    (59) Comment: Numerous commenters expressed concern about the decline of pollinators and the need to prevent extinction of the rusty patched bumble bee to protect biodiversity and address pollinator declines. These commenters cited the value of bumble bees as important pollinators of wildflowers (and other wild plants) and as the chief pollinator of many economically important crops. Another commenter stated that, although they agreed that the rusty patched bumble bee is an important pollinator, there are still numerous other species, wind, and other methods that act as pollinators.

    Our Response: Although these comments do not directly address information pertaining to the listing determination of the rusty patched bumble bee, we want to acknowledge their validity and importance. In the United States and globally, native bees are responsible for most pollination of plants that require insect pollination to produce fruits, seeds, and nuts. As such, they not only pollinate economically important crops, but provide the foundation of functioning ecosystems; pollination is required for plant reproduction, and plants are the base of the food chain. The plight of the rusty patched bumble bee is not an isolated occurrence, but a symptom of widespread decline of many insect pollinators. Measures to identify and address threats and prevent the extinction of the rusty patched bumble bee will help conserve other native pollinators. It is important to recognize that the rusty patched bumble bee occurs in very few locations. Measures to identify and address threats to pollinators is needed beyond the current occurrences of the rusty patched bumble bee—they are needed throughout the United States. It is true that there are other forms of pollination as mentioned (e.g., wind, other insect species, birds, and mammals). However, the Act requires us to determine whether listing is warranted based on whether a species meets the definitions of an endangered or threatened species because of any of the section 4(a)(1) factors, not on the basis of whether it fulfills a unique ecosystem function.

    (60) Comment: Several commenters noted how the rusty patched bumble bee would benefit from listing under the Act. Those commenters noted such benefits as the following: (1) Protecting remaining populations from site-specific threats, (2) the bees' habitat will benefit from critical habitat designation, (3) developing a recovery plan, (4) Federal agencies will need to address threats to the species, (5) increased research into the causes of decline, (6) increased economic benefits to U.S. farmers who benefit from the ecosystem service of crop pollination by wild bees.

    Our Response: As these commenters stated, there are many potential benefits to a species in being listed under the Act. For additional information, please refer to the Available Conservation Measures section of the preamble to this final rule.

    (61) Comment: Several commenters requested that the Service act quickly in providing protection to the rusty patched bumble bee and asked if there is a way to expedite the listing process. Some of those commenters expressed concern that the Service might have not acted fast enough in protecting the rusty patched bumble bee, and that the ability to prevent the species' extinction may already be diminished. Other commenters, particularly those representing industry, requested that the Service extend the final listing decision deadline by 6 months or withdraw the proposed rule to provide additional time needed to evaluate the rusty patched bumble bee appropriately; consider new information and data provided in comments; collect and evaluate additional data; and consider results of ongoing studies that are anticipated to be completed in 2017.

    Our Response: Given the precipitous decline and the few populations that remain, we are hopeful that, by affording the species protection now and working expeditiously with all partners, the rusty patched bumble bee will be saved from extinction. See our response to comment 15 for information about our use of the best available science.

    We do not find substantial disagreement regarding the sufficiency or accuracy of the available scientific data relevant to this determination. Therefore, we are not extending the period for making a final determination for the purposes of soliciting additional data. However, we agree that results from ongoing studies would further our understanding and help us with recovery planning and implementation. We will consider further research needs in our recovery planning efforts.

    (62) Comment: Several commenters agreed that critical habitat is not determinable at this time, contending that there is insufficient scientific understanding of the rusty patched bumble bee's biology, current occurrences and threats to allow the Service to identify the requisite physical and biological features necessary to designate critical habitat. Some commenters expressed concern that designating critical habitat may impact agriculture or other industries. Others commented that, if critical habitat is ultimately designated, only occupied habitat should be included. A comment from bumble bee experts provided information on physical and biological features and habitat types (including information on forage; nesting sites; overwintering sites; habitats that are protected from pesticides and disease) to consider when designating critical habitat.

    Our Response: We will consider this information when we designate critical habitat for this species.

    (63) Comment: Several commenters stated that the Service should acknowledge the benefits to the rusty patched bumble bee and other pollinators from habitat management.

    Response: We agree that compatible habitat management is beneficial for rusty patched bumble bee conservation. Indeed, we will be working with conservation partners to implement good management practices for bumble bees as we work towards preventing the extinction, and working toward recovery, of this species.

    (64) Comment: Some utility groups commented that specific activities should be excluded from activities that may result in “take.” The activities specifically requested to be excluded as “take” were the use of herbicides to maintain electronic transmission rights-of-way when applied in accordance with label requirements and seasonal recommendations, and utility infrastructure construction or rights-of-way maintenance practices. The commenters provided reasons why such activities would not lead to “take.” The commenters also sought acknowledgement that herbicide use to maintain utility rights-of-way is likely to benefit, rather than harm, pollinator insect species, including the rusty patched bumble bee.

    Our Response: It is the policy of the Service to identify, to the extent known at the time a species is listed, specific activities that are unlikely to result in violation of section 9 of the Act. To the extent possible, we also strive to identify the activities that are likely to result in violation. Activities that may lead to take, even those having a net benefit, cannot be authorized without a section 10 permit or section 7 exemption. For certain activities, the Service will assist the public in determining whether they would constitute a prohibited act under section 9 of the Act.

    We acknowledge that proper herbicide use can reduce invasive or unwanted plant species from rusty patched bumble bee habitat, but label restrictions alone may not be protective of the rusty patched bumble bee. For example, one common herbicide label allows a mixture with imidacloprid, which has documented sublethal and lethal effects to bees. It is unclear which populations could be affected by these activities, what the effects might be, and how the effects might be minimized. The Service can provide technical assistance to help determine whether the rusty patched bumble bee may be present in a project area. If noxious weed control is needed where the rusty patched bumble bee is likely to be present, for example, the Service will work with landowners or land managers to identify techniques that avoid take. As we work to conserve the rusty patched bumble bee, we will provide landowners and land managers with information to assist with understanding what activities are likely to cause take of the species and what actions may be implemented to conserve the species.

    (65) Comment: A few commenters requested that the Service clarify what constitutes “unauthorized use” of biological control agents in the following statement, “The unauthorized release of biological control agents that attack any life stage of the rusty patched bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in habitats in which the rusty patched bumble bee is known to occur is listed in the proposed rule as an activity that may result in a violation of section 9 of the Act.” Specifically, they request clarification as to whether this includes using or releasing registered pesticides in a manner consistent with its EPA-approved labeling instructions.

    Our Response: We use the word “unauthorized” here to mean those activities that have not been permitted or exempted from the section 9 prohibitions due to their appropriate and full consideration under section 10 or section 7 of the Act.

    (66) Comment: Several commenters noted that pathogens discussed in the proposal are also commonly found in honey bees and commercial bumble bees, and thus honey bees and commercial bumble bees could be seen as an unauthorized release of nonnative species under section 9 of the Act. The commenters expressed concern that restricted use of commercial bees would harm that industry.

    Our Response: Our response to comment 65 clarifies the term “unauthorized” as used in this final listing rule. We recognize that honey bee and bumble bee species naturally carry high pathogen loads and that under normal circumstances this characteristic will not affect their fitness. In the case of any pathogen that is found to adversely affect listed species, we need to investigate the source of the pathogen and undertake actions to ameliorate its negative effects. If commercial bumble bees, or wild bees, are found to transmit pathogens that cause take of rusty patched bumble bees, the Service will work with the industry to identify and implement conservation measures that will support the survival or recovery of the species while being practicable from the industry's perspective. We emphasize, however, that under the Act, our concern is the continued existence of this endangered species.

    (67) Comment: The unauthorized discharge of chemicals or fill material into any wetlands in which the rusty patched bumble bee is known to occur is listed in the proposed rule as an activity that may result in a violation of section 9 of the Act. A few commenters mentioned that they assume the reference to “fill material” in this phrase is a reference to the term as used in the Clean Water Act (CWA), which broadly includes soil, plants, and other biological material. They stated that, given this broad scope, it is unclear how “fill material” poses a risk to the rusty patched bumble bee.

    Our Response: The commenter is correct that the reference to “fill material” is a reference to the term as used in the CWA. The unauthorized discharge of fill material in wetland areas utilized by the rusty patched bumble bee may result in habitat loss or destruction, for example through the loss of floral resources, which could lead to death or harm of rusty patched bumble bees.

    (68) Comment: Several commenters expressed concerns that listing the rusty patched bumble bee may affect private property rights and restrict land use. For example, one commenter was concerned that listing would inhibit the use of Federal crop insurance, because recipients must allow government access to private land for bumble bee habitat restoration efforts. Others suggested that landowners who enhance their lands could become susceptible to restrictions or lawsuits from private special interest groups.

    Our Response: Programs are available to private landowners for managing habitat for listed species, and permits can be obtained to protect private landowners from the take prohibition when such taking is incidental to, and not the purpose of, carrying out an otherwise lawful activity. In addition, presence of a listed species does not authorize government access to private lands. Private landowners may contact the U.S. Fish and Wildlife Ecological Services Field Office in their State to obtain information about these programs and permits.

    (69) Comment: One commenter contends that consultations on actions affecting critical habitat cause delay and extra expenses to proposed projects. The commenter believes there is also a risk that landowners may unintentionally violate the regulations.

    Our Response: The Service has determined that critical habitat is not determinable at this time. Section 7 of the Act requires Federal agencies to use their legal authorities to promote the conservation purposes of the Act and to consult with the Service to ensure that effects of actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species. This added requirement may result in a delay in the project, but we will work as expeditiously as possible to complete the required section 7 consultation process in a timely manner. Furthermore, coordination with the Service early in the project development can help expedite the project and minimize the likelihood of delays.

    (70) Comment: Several commenters expressed concern that listing this species may hinder research and conservation efforts for the rusty patched bumble bee rather than protect it and may hamper conservation of other native pollinators overall.

    Our Response: Research that is conducted for the purpose of recovering a species is an activity that can be authorized under section 10 of the Act, normally referred to as a recovery permit, or can be conducted by certain State conservation agencies by virtue of their authority under section 6 of the Act. We will continue to support research important for recovery of the rusty patched bumble bee. Similarly, management efforts that support the species but may result in some level of take can be authorized through use of incidental take statements or permits. It is not the intent of the Service to hamper conservation of other natural resources through its efforts to recover listed species, and we strive to prevent undue impediments.

    (71) Comment: One commenter expressed concern that listing the rusty patched bumble bee could restrict vital uses of pesticides that promote public health and safety, protect our nation's infrastructure, and create healthy homes and greenspaces.

    Our Response: Although we are required to base listing determinations solely on the best available scientific and commercial data, we will continue to work with organizations and agencies in reviewing the effects of specific pesticides on bumble bees during recovery planning and in section 7 consultations for this species. In so doing, we will work closely with involved parties to craft effective recovery strategies that benefit the species without incurring unnecessary restrictions or risking public health and safety.

    Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the rusty patched bumble bee. Habitat loss and degradation from residential and commercial development and agricultural conversion occurred rangewide and resulted in fragmentation and isolation of the species from formerly contiguous native habitat. Habitat loss and degradation have resulted in the loss of the diverse floral resources needed throughout the rusty patched bumble bee's long feeding season, as well as loss of appropriate nesting and overwintering sites. Although much of the habitat conversion occurred in the past, the dramatic reduction and fragmentation of habitat have persistent and ongoing effects on the viability of populations; furthermore, conversion of native habitats to agriculture (i.e., monocultures) or other uses is still occurring today (Factor A).

    The species' range (as measured by the number of counties occupied) has been reduced by 87 percent, and its current distribution is limited to just one to a few populations in each of 12 States and Ontario, with an 88-percent decrease in the number of populations known historically. Of the 103 known current populations, 96 percent have been documented by 5 or fewer individual bees; only 1 population has had more than 30 individuals observed in any given year. Drought frequency and increased duration of high temperatures are likely to increase due to climate change, further restricting floral resources, reducing foraging times, and fragmenting or eliminating populations (Factor E). Fungi such as N. bombi, parasites such as Crithidia bombi and Apicystis bombi, deformed wing virus, acute bee paralysis, and bacteria are all suspected causes of decline for the rusty patched bumble bee (Factor C).

    Pesticide use, including the use of many insecticides that have known lethal and sublethal effects to bumble bees, is occurring at increasing levels rangewide (Factor E). Similarly, herbicide use occurs rangewide and can reduce available floral resources (Factor A). Additionally, the rusty patched bumble bee is not able to naturally recolonize unoccupied areas that are not connected by suitable dispersal habitat (Factors A and E).

    The rusty patched bumble bee's reproductive strategy makes it particularly vulnerable to the effects of small population size. The species can experience a “diploid male vortex,” where the number of nonviable males increases as abundance declines, thereby further reducing population size (Factor E). There is virtually no redundancy of populations within each occupied ecoregion, further increasing the risk of loss of representation of existing genetic lineages and, ultimately, extinction.

    These threats have already resulted in the extirpation of the rusty patched bumble bee throughout an estimated 87 percent of its range, and these threats are likely to continue or increase in severity. Although the relative contributions of pesticides, pathogens, loss of floral resources, and other threats to the species' past and continued decline are not known, the prevailing data indicate that threats are acting synergistically and additively and that the combination of multiple threats is likely more harmful than a single threat acting alone. Regardless of the sources of the decline, the last 16 years of population data are not indicative of healthy colonies or healthy populations. Thus, the species is vulnerable to extinction even without further external stressors acting upon the populations.

    Existing regulatory mechanisms vary across the species' range. The rusty patched bumble bee is listed as State endangered in Vermont (which prohibits taking, possessing, or transporting) and as special concern (no legal protection) in Connecticut, Michigan, and Wisconsin, and is protected under Canada's Species at Risk Act. Although these and other regulatory mechanisms exist, they do not currently ameliorate threats to the rusty patched bumble bee, as evidenced by the species' rapid, ongoing decline.

    The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the rusty patched bumble bee is presently in danger of extinction throughout its entire range. Relative to its historical (pre-2000s) condition, the abundance of rusty patched bumble bees has declined precipitously over a short period of time.

    Further adding to the species' imperilment, its reproductive strategy (haplodiploidy) renders it particularly sensitive to loss of genetic diversity, which is further exacerbated by decreasing population size (for example, diploid male vortex). The persisting colonies are few in number and continue to be affected by high-severity stressors, including pathogens, pesticides, habitat loss and degradation, effects of climate change, and small population dynamics, throughout all of the species' range. These stressors are acting synergistically and additively on the species, and the combination of multiple stressors is more harmful than a single stressor acting alone. Due to the above factors, the species does not have the adaptive capacity in its current state to withstand physical and biological changes in the environment presently or into the future, and optimistic modeling suggests that all but one of the ecoregions are predicted to be extirpated within 5 years (Szymanski et al. 2016, Table 7.3).

    In conclusion, the species' spatial extent has been considerably reduced and the remaining populations are under threat from a variety of factors acting in combination to significantly reduce the overall viability of the species. The risk of extinction is currently high because the number of remaining populations is small, most of those populations are extremely small in size (all but 2 have 10 or fewer individuals), and the species' range is severely reduced. Therefore, on the basis of the best available scientific and commercial information, we are listing the rusty patched bumble bee as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for the rusty patched bumble bee because (1) given its current condition, the species presently lacks the ability to withstand physical and biological changes in the environment; (2) based on the prediction that all but one ecoregion will be extinct within 5 years, the species presently has a high probability of extinction; and (3) even if the current stressors were to be reduced or eliminated, the species would still be at high risk of extinction based on small population size effects alone.

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the rusty patched bumble bee is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577; July 1, 2014).

    Critical Habitat

    Section 4(a)(3) of the Act, as amended, and implementing regulations in 50 CFR 424.12, require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (for example, migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

    Conservation, as defined under section 3 of the Act, means to use, and the use of, all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

    Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat designation does not allow the government or public to access private lands, nor does it require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult under section 7(a)(2) of the Act, but even if consultation leads to a finding that the action would likely cause destruction or adverse modification of critical habitat, the resulting obligation of the Federal action agency and the landowner is not to restore or recover the species, but rather to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

    Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) that are essential to the conservation of the species and (2) that may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed if we determine that such areas are essential for the conservation of the species.

    Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. For example, they require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

    Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when any of the following situations exist: (i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (ii) such designation of critical habitat would not be beneficial to the species. The regulations also provide that, in determining whether a designation of critical habitat would not be beneficial to the species, the factors that the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat” (50 CFR 424.12(a)(1)(ii)).

    We do not know of any imminent threat of take attributed to collection or vandalism for the rusty patched bumble bee. The available information does not indicate that identification and mapping of critical habitat is likely to initiate any threat of collection or vandalism for the bee. Therefore, in the absence of finding that the designation of critical habitat would increase threats to the species, if there are benefits to the species from a critical habitat designation, a finding that designation is prudent is warranted.

    The potential benefits of designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species. Because designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, designation of critical habitat may be prudent for the rusty patched bumble bee.

    Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

    Delineation of critical habitat requires identification of the physical or biological features, within the geographical area occupied by the species, essential to the species' conservation. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include but are not limited to space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance. Information regarding the rusty patched bumble bee life-history needs is complex, and complete data are lacking for most of them. For example, little is known about the overwintering habitats of foundress queens; however, information is currently being collected that may provide important knowledge on this topic. Consequently, a careful assessment of the biological information is still ongoing, and we are still in the process of acquiring the information needed to perform that assessment. The information sufficient to perform a required analysis of the impacts of the designation is lacking, and therefore, we find designation of critical habitat to be not determinable at this time.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to address the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a draft and final recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. When completed, the draft recovery plan and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Twin Cities Ecological Service Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (for example, restoration of native vegetation), research, captive-propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin are eligible for Federal funds to implement management actions that promote the protection or recovery of the rusty patched bumble bee. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the species' habitat that may require consultation as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands, for example, lands administered by the National Park Service, U.S. Fish and Wildlife Service, and U.S. Forest Service.

    The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

    We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

    It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing.

    Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

    (1) Unauthorized handling or collecting of the species;

    (2) The unauthorized release of biological control agents that attack any life stage of the rusty patched bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in habitats in which the rusty patched bumble bee is known to occur;

    (3) Unauthorized release of nonnative species or native species that carry pathogens, diseases, or fungi that are known or suspected to adversely affect rusty patched bumble bee where the species is known to occur;

    (4) Unauthorized modification, removal, or destruction of the habitat (including vegetation and soils) in which the rusty patched bumble bee is known to occur; and

    (5) Unauthorized discharge of chemicals or fill material into any wetlands in which the rusty patched bumble bee is known to occur.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Twin Cities Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Required Determinations National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov and upon request from the Twin Cities Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this final rule are the staff members of the Twin Cities Ecological Services Field Office and the Region 3 Regional Office.

    List of Subjects in 50 CFR part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.

    2. In § 17.11(h), add an entry for “Bumble bee, rusty patched” to the List of Endangered and Threatened Wildlife in alphabetical order under INSECTS to read follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * INSECTS *         *         *         *         *         *         * Bumble bee, rusty patched Bombus affinis Wherever found E 82 FR [insert Federal Register page where the document begins], 1/11/2017. *         *         *         *         *   * *
    Dated: December 27, 2016. Teresa R. Christopher, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2017-00195 Filed 1-10-17; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 161227999-6999-01] RIN 0648-BG49 Atlantic Highly Migratory Species; Technical Amendment to Regulations AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule; technical amendments.

    SUMMARY:

    NMFS is hereby making technical amendments to the regulations for Atlantic highly migratory species. Currently, certain cross-references meant to be in the regulations are either missing or incorrect. This final action will make the cross-references in the regulations accurate. The action also simplifies regulatory text by removing unnecessary language. The rule is administrative in nature and does not make any change with substantive effect to the regulations governing Atlantic highly migratory species (HMS) fisheries.

    DATES:

    This final rule is effective on January 11, 2017.

    ADDRESSES:

    Copies of other documents relevant to this rule are available from the HMS Management Division Web site at http://www.nmfs.noaa.gov/sfa/hms/ or upon request from the Atlantic HMS Management Division at 1315 East-West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Larry Redd or Karyl Brewster-Geisz by phone at 301-427-8503.

    SUPPLEMENTARY INFORMATION:

    Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq., (ATCA). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary of Commerce to the NOAA Assistant Administrator for Fisheries (AA). On May 28, 1999, NMFS published in the Federal Register (64 FR 29090) regulations implementing the Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish, and Sharks (1999 FMP). On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) regulations implementing the 2006 Consolidated HMS FMP, which details the management measures for Atlantic HMS fisheries. The implementing regulations for Atlantic HMS are at 50 CFR part 635.

    Background

    The regulations in 50 CFR 635.71 contain specific prohibitions, and those prohibitions contain or should contain regulatory cross-references specific to the regulatory requirements in other sections of 50 CFR part 635. The regulatory text in § 635.71 ensures that person(s) under United States jurisdiction are in compliance with the Federal rules promulgated under the Atlantic Tunas Convention Act and the Magnuson-Stevens Fishery Conservation and Management Act when fishing for Atlantic HMS. This technical amendment corrects the cross-references in the HMS regulations. It also simplifies regulatory text at § 635.71(b)(23) by removing unnecessary language.

    Corrections

    The regulations at § 635.71(a)(9), (b)(21), (e)(9), and (e)(10) are missing a clarifying cross-reference. This final action adds a cross reference to those regulations.

    Additionally, the regulations at § 635.71(a)(17), (a)(18), (a)(37), (a)(54), (a)(56), (a)(59), (b)(36), (b)(37), (b)(39), (b)(40), and (e)(17) contain one or more incorrect cross-references. This final action corrects those cross-references. Additionally, § 635.71(b)(23) has an incorrect cross reference, which this action corrects. This action would remove language referencing that incidental to recreational fishing for other species would be retained in accordance with § 635.23(b) and (c), and simplifies the regulatory text to more broadly refer to the provisions of § 635.23.

    Classification

    The Assistant Administrator for Fisheries has determined that this final rule is necessary for the conservation and management of U.S. fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, and ATCA.

    Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. This final rule makes only corrective, non-substantive changes to add missing, or correct, cross-references to HMS regulations or, in one instance, to remove confusing, unnecessary language, and is solely administrative in nature. Therefore, public comment would serve no purpose and is unnecessary. Furthermore, it is in the public interest to correct or insert the cross-references as quickly as possible to more clearly articulate the regulatory requirements to the public. Any delay in implementation would result in the continuation of incorrect cross-references in the regulations at 50 CFR 635. It is in the best interest of both the public and law enforcement to effectively enforce the new changes on publication to ensure person(s) are justifiably operating within U.S. law. Thus, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date.

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

    Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, and a proposed rule is not being published, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

    NMFS has determined that fishing activities conducted pursuant to this rule will not affect endangered and/or threatened species or critical habitat listed under the Endangered Species Act, or marine mammals protected by the Marine Mammal Protection Act, because the action will not result in any change or increase in fishing activity, and is solely administrative in nature.

    List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: January 5, 2017. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

    PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In § 635.71, revise paragraphs (a)(9), (a)(17), (a)(18), (a)(37), (a)(54), (a)(56), (a)(59), (b)(21), (b)(23), (b)(36), (b)(37), (b)(38), (b)(39), (b)(40), (e)(9), (e)(10), and (e)(17) to read as follows:
    § 635.71 Prohibitions.

    (a) * * *

    (9) Fail to report the catching of any Atlantic HMS to which a conventional tag has been affixed under a tag and release program as specified in § 635.26(a).

    (17) Fish for Atlantic tunas or swordfish with a gillnet or possess Atlantic tunas or swordfish on board a vessel with a gillnet on board, as specified in § 635.19(a), (b), and (e).

    (18) Fail to retrieve fishing gear and move after an interaction with a protected species, as specified in § 635.21(b)(3).

    (37) Fail to report to NMFS, at the number designated by NMFS, the incidental capture of listed whales with shark gillnet gear as required by § 635.21(g)(1).

    (54) Possess, use, or deploy, in the Gulf of Mexico, any circle hook, other than as described at § 635.21(c). Vessels in the Gulf of Mexico, with pelagic gear onboard, are prohibited from possessing, using, or deploying circle hooks that are constructed of round wire stock which is larger than 3.65 mm in diameter (See: § 635.21(c)(5)(iii)(B)(2)(i)).

    (56) Have been issued a valid HMS Commercial Caribbean Small Boat permit and to purchase, barter for, or trade for HMS harvested by other vessels with the intent to sell, as specified in § 635.4(o)(5).

    (59) Fish for, retain, possess, or land any HMS from a vessel with a pelagic longline on board when the Atlantic Tunas Longline category fishery is closed, as specified in § 635.28(a)(3), (b)(7), (c)(3), and (d).

    (b) * * *

    (21) Transfer a tuna as specified in § 635.29(a), except as may be authorized for the transfer of Atlantic BFT between purse seine vessels, as specified in § 635.29(c).

    (23) Fish for, catch, possess, or retain a bluefin tuna, except as specified under § 635.23.

    (36) Possess J-hooks onboard a vessel that has pelagic longline gear onboard, and that has been issued, or is required to have, a limited access swordfish, shark, or Atlantic Tunas Longline category permit for use in the Atlantic Ocean, including the Caribbean Sea and the Gulf of Mexico, except when green-stick gear is onboard, as specified at § 635.21(c)(2)(vii)(A) and (c)(5)(iii)(B)(3).

    (37) Use or deploy J-hooks with pelagic longline gear from a vessel that has been issued, or is required to have, a limited access swordfish, shark, or tuna longline category permit for use in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico, as specified in § 635.21(c)(5)(iii)(B).

    (38) As specified in § 635.21(c)(5)(iii)(B)(3), possess more than 20 J-hooks onboard a vessel that has been issued, or is required to have, a limited access swordfish, shark, or tuna Longline category permit for use in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico, when possessing onboard both pelagic longline gear and green-stick gear as defined in § 635.2.

    (39) Use or deploy more than 10 hooks at one time on any individual green-stick gear, as specified in § 635.21(j), (c)(2)(vii)(A), or (c)(5)(iii)(B)(3).

    (40) Possess, use, or deploy J-hooks smaller than 1.5 inch (38.1 mm), when measured in a straight line over the longest distance from the eye to any part of the hook, when fishing with or possessing green-stick gear onboard a vessel that has been issued, or is required to have, a limited access swordfish, shark, or tuna longline category permit for use in the Atlantic Ocean, including the Caribbean Sea and Gulf of Mexico, as specified at § 635.21(c)(5)(iii)(B)(3) or (c)(2)(vii)(A).

    (e) * * *

    (9) Fish for swordfish from the South Atlantic swordfish stock using gear other than pelagic longline, as specified at § 635.19(e)(1) and § 635.27(c)(1)(ii).

    (10) Fish for, catch, possess, retain, or land an Atlantic swordfish using, or captured on, “buoy gear” as defined at § 635.2, unless, as specified in § 635.19(e)(3), the vessel owner has been issued a swordfish directed limited access permit or a swordfish handgear limited access permit in accordance with § 635.4(f) or a valid HMS Commercial Caribbean Small Boat permit in accordance with § 635.4(o).

    (17) Failure to construct, deploy, or retrieve buoy gear as specified at § 635.21(h).

    [FR Doc. 2017-00325 Filed 1-10-17; 8:45 am] BILLING CODE 3510-22-P
    82 7 Wednesday, January 11, 2017 Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 204 and 216 [CIS No. 2595-16; DHS Docket No. USCIS-2016-0008] RIN 1615-AC11 EB-5 Immigrant Investor Regional Center Program AGENCY:

    U.S. Citizenship and Immigration Services, DHS.

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    The Department of Homeland Security (DHS) is considering making regulatory changes to the EB-5 Immigrant Investor Regional Center Program. Based on decades of experience operating the program, DHS has determined that program changes are needed to better reflect business realities for regional centers and EB-5 immigrant investors, to increase predictability and transparency in the adjudication process for stakeholders, to improve operational efficiency for the agency, and to enhance program integrity. This Advance Notice of Proposed Rulemaking (ANPRM) is organized to include requests for comment immediately following discussions of the relevant issues.

    DATES:

    Written comments must be received on or before April 11, 2017.

    ADDRESSES:

    You may submit comments, identified by DHS Docket No. USCIS-2016-0008, by any one of the following methods:

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

    Mail: You may send comments directly to U.S. Citizenship and Immigration Services (USCIS) by mail to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Ave. NW., Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2016-0008 in your correspondence. This mailing address may be used for paper or CD-ROM submissions.

    Hand Delivery/Courier: You may submit comments directly to USCIS through hand delivery to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Ave. NW., Washington, DC 20529; Telephone 202-272-8377. To ensure proper handling, please reference DHS Docket No. USCIS-2016-2008 in your correspondence.

    FOR FURTHER INFORMATION CONTACT:

    Lori MacKenzie, Division Chief, Operations Policy and Performance, Immigrant Investor Program Office, U.S. Citizenship and Immigration Services, Department of Homeland Security, 131 M St. NE., 3rd Floor, Washington, DC 20529; Telephone 202-357-9214.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Public Participation II. Background A. The EB-5 Program B. The Regional Center Program III. Requests for Information A. Process for Initial Designation and Exemplar Approval B. Safeguards for Monitoring and Oversight C. Continued Participation D. Termination List of Acronyms and Abbreviations Used ANPRM Advance Notice of Proposed Rulemaking DHS Department of Homeland Security JCE Job-Creating Entity LPR Lawful Permanent Resident NCE New Commercial Enterprise NOID Notice of Intent To Deny NPRM Notice of Proposed Rulemaking RFE Request for Evidence USCIS United States Citizenship and Immigration Services I. Public Participation

    This ANPRM provides an opportunity for DHS to hear and consider the views of the public on potential changes to improve and modify the EB-5 Regional Center Program. DHS invites comments, data, and information from all interested parties, including regional centers, investors, advocacy groups, nongovernmental organizations, community-based organizations, and legal representatives who specialize in immigration law, as well as corporate and securities law. DHS welcomes comments on any and all aspects of this ANPRM. Your comments can help shape the outcome of this possible rulemaking.

    DHS is issuing this ANPRM to seek comment from all interested stakeholders on several topics, including: (1) The process for initially designating entities as regional centers, (2) a potential requirement for regional centers to utilize an exemplar filing process, (3) “continued participation” requirements for maintaining regional center designation, and (4) the process for terminating regional center designation. While DHS has gathered some information related to these topics, DHS is seeking additional information that can help the Department make operational and security updates to the Regional Center Program while minimizing the impact of such changes on regional center operations and EB-5 investors.

    When submitting comments, please indicate the specific section of this document to which each comment applies, indicate the specific question number to which each comment applies, and provide reasons for each suggestion or recommendation. Feedback that simply states that a stakeholder strongly prefers a particular outcome, unaccompanied by careful reasoning and actionable data, is much less useful to DHS.

    DHS is particularly interested in data that would inform a quantitative and qualitative assessment of the costs and benefits of the potential changes described in this ANPRM. DHS is also interested in comments from the public that provide more information how to identify the small entity status of EB-5 stakeholder entities, such as regional centers and new commercial enterprises. DHS specifically requests information on revenue or employment data sources on regional centers and new commercial enterprises.

    Instructions: All submissions for this advance notice of proposed rulemaking must include the DHS Docket No. USCIS-2016-0008. Please note that DHS has published a notice of proposed rulemaking entitled “EB-5 Immigrant Investor Program Modernization,” DHS Docket No. USCIS-2016-0006, separate from this ANPRM. The NPRM and ANPRM include distinct proposals, so please ensure that you submit your comments to the correct docket.

    Comments must be submitted in English, or an English translation must be provided. Written comments may be submitted electronically or by mail, as explained previously in the ADDRESSES section of this ANPRM. To avoid duplication, please use only one of these methods to submit written comments. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and enter this ANPRM's docket number in the search bar.

    II. Background A. The EB-5 Program

    As part of the Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978, Congress established the EB-5 immigrant visa classification to incentivize employment creation in the United States. Under the EB-5 program, lawful permanent resident (LPR) status is available to foreign nationals who invest at least $1 million in a new commercial enterprise (NCE) that will create at least 10 full-time jobs in the United States. See INA section 203(b)(5), 8 U.S.C. 1153(b)(5). A foreign national may invest $500,000 if the investment is in a “targeted employment area,” defined to include certain rural areas and areas of high unemployment. Id. The INA allots 9,940 immigrant visas each fiscal year for foreign nationals seeking to enter the United States under the EB-5 classification. See INA section 201(d), 8 U.S.C. 1151(d); INA section 203(b)(5), 8 U.S.C. 1153(b)(5). Not less than 3,000 of these visas must be reserved for foreign nationals investing in targeted employment areas. See INA section 203(b)(5)(B), 8 U.S.C. 1153(b)(5)(B).

    B. The Regional Center Program

    Enacted in 1992, section 610 of the Departments of Commerce, Justice, State, and State, and Related Agencies Appropriations Act, 1993, Public Law 102-395, 106 Stat. 1828, established a pilot program that requires the allocation of a limited number of EB-5 immigrant visas to individuals who invest in new commercial enterprises through DHS-designated regional centers.1 DHS regulations define a regional center as an economic unit, public or private, that promotes economic growth, regional productivity, job creation, and increased domestic capital investment. See 8 CFR 204.6(e). While all EB-5 petitioners go through the same petition process, those petitioners participating in the Regional Center Program may meet statutory job creation requirements based on economic projections of either direct or indirect job creation, rather than only on jobs directly created by the new commercial enterprise. See 8 CFR 204.6(m)(3). In addition, Congress authorized the Secretary to give priority to EB-5 petitions filed through the Regional Center Program. See section 601(d) of Public Law 102-395, 106 Stat. 1828, as amended by Public Law 112-176, Sec. 1, 126 Stat. 1326 (Sept. 28, 2012).

    1 Current law requires that DHS annually set aside 3,000 EB-5 immigrant visas for regional center investors. Section 116 of Public Law 105-119, 111 Stat. 2440 (Nov. 26, 1997). If this full annual allocation is not used, remaining visas may be allocated to foreign nationals who do not invest in regional centers.

    Requests for regional center designation must be filed with USCIS on the Application for Regional Center Under the Immigrant Investor Program (Form I-924). See 8 CFR 204.6(m)(3)-(4). Once designated, regional centers must provide USCIS with updated information to demonstrate continued eligibility for the designation by submitting an Annual Certification of Regional Center (Form I-924A) on an annual basis or as otherwise requested by USCIS. See 8 CFR 204.6(m)(6)(i)(B). USCIS may seek to terminate a regional center's participation in the program if the regional center no longer qualifies for the designation, the regional center fails to submit the required information or pay the associated fee, or USCIS determines that the regional center is no longer promoting economic growth. See 8 CFR 204.6(m)(6)(i). As of November 1, 2016, there were 864 designated regional centers.2

    2 USCIS, Immigrant Investor Regional Centers, https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers.

    The former Immigration and Naturalization Service last promulgated comprehensive regulations implementing the EB-5 Regional Center Program in 1993. 58 FR 44606. Although Congress has revised the program multiple times since, see Public Law 106-396, 114 Stat. 1637; Public Law 107-273, 116 Stat. 1758 (2002 statutory amendments), the regulations have not been updated to conform to the statutory changes. Neither have the regulations been amended to make improvements to the program based on the Department's experience implementing the program for the last 25 years.

    III. Requests for Information

    DHS is considering changes to the Regional Center Program regarding the requirements for initial designation and continued participation, a potential requirement for regional centers to utilize an exemplar process, and the grounds for terminating regional center designation.

    A. Process for Initial Designation and Exemplar Approval

    DHS is considering ways to improve the process associated with the initial designation of regional centers and the approval of “exemplar” projects. Currently, an entity applying for initial designation as a regional center may choose whether to present a hypothetical project, an actual project, or an exemplar project with their Application For Regional Center Under the Immigrant Investor Program (Form I-924 application). A request for review of a hypothetical project should be supported by general proposals and general predictions showing that the proposed regional center will more likely than not promote economic growth and job creation. Organizational and transactional supporting documents are not required for a hypothetical project. Previous determinations based on hypothetical projects will not receive deference in the adjudication of subsequent filings.

    If the entity includes an actual or exemplar project proposal with its Form I-924 application, USCIS determines, as part of the Form I-924 adjudication, whether USCIS will accord deference to its approval of that project when USCIS later reviews investor petitions associated with the same regional center and based on the same project. A request for review of an actual project requires a comprehensive and credible business plan that, among other things, provides a description of the business and verifiable detail on how jobs will be created. Organizational and transactional supporting documents for the new commercial enterprise are not required for an actual project. Deference generally will be accorded to prior approval of the business plan and economic analysis in subsequent filings related to an approved actual project.

    A request for review of an exemplar project is comprised of a sample Form I-526 petition filed with a proposed actual project containing copies of the new commercial enterprise's organizational and transactional documents. USCIS currently reviews exemplars to determine if they are in compliance with established EB-5 eligibility requirements. If the exemplar project is approved, the determination generally is accorded deference in subsequent related Form I-526 and Form I-829 filings.3

    3 Deference may also be accorded to the approval of a regional center investor's Form I-526 or Form I-829 petition in the adjudication of related Form I-526 and Form I-829 petitions based upon an investment in the same investment project with the same project documents. Investors may submit evidence of association with an exemplar project before or while the regional center's exemplar is pending with USCIS, or after the exemplar is approved.

    DHS believes that the existing process presents two problems. First, the adjudication of initial applications for regional center designation become much more complex when entities seeking such designation “bundle” their initial applications with actual or exemplar projects. Under the current process, regional centers often include a host of documents related to actual or exemplar projects with their Form I-924 applications, including project proposals and related organization and transactional documents, such as private placement memoranda, subscription agreements, operating and partnership agreements, and other information. USCIS must review all such documents submitted with Form I-924 applications, even though the information contained in such documents is frequently unrelated to adjudication of the regional center designation (i.e., determining whether to designate the applying entities as regional centers).

    Second, by allowing regional centers to choose whether to submit an exemplar project at all, USCIS effectively lets those entities determine the level of workload for the agency related to each EB-5 project. When a regional center submits an exemplar proposal, USCIS must only assess the project once at an initial stage. Any issues related to project approval are considered and resolved at this initial stage, thus making individual immigrant investor petitions submitted pursuant to that project simpler to adjudicate. In contrast, when a regional center does not use the exemplar process, USCIS is presented with the project proposal multiple times, including with each individual immigrant investor petition submitted pursuant to that project. At this stage, issues related to project approval often require USCIS to issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) to each individual petitioner who is investing in that project. This presents a significant burden on the agency and each individual petitioner, and significantly delays the adjudication of their petitions.

    To address these issues, DHS is seeking comment on whether it should bifurcate the Form I-924 application process into two steps, as follows: DHS would first require submission of a more general application for initial designation, and then, subsequent to designation, would require submission of a more specific application for approval of an exemplar project. DHS is considering a different form and fee for each of the two steps. DHS believes these changes would significantly reduce the issuance of RFEs and NOIDs and improve processing times for both applications for regional center designation and immigrant investor petitions. Individual immigrant investors would also bear a lower paperwork burden and would benefit from improved predictability in adjudications. DHS describes each potential change in turn below.

    1. General Application for Initial Designation

    As noted above, DHS seeks comment on its proposal to require entities seeking regional center designation to submit a more general application for such designation (i.e., without including documentation related to actual or exemplar projects). DHS expects that the information required to be submitted in such an application would generally conform to the requirements contained in the regional center statute, as amended. Under this process, an applicant for regional center designation would only need to include a general proposal based on general predictions concerning the kinds of commercial enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive effects such capital investments will have on economic growth. Further information about investments and regional center projects would generally not be required or reviewed as part of this initial filing. After USCIS designates the entity as a regional center, the regional center would be able to request review of investment offering documents and project documents, including the types of documents that typically accompany an “exemplar” project filing under current practice.

    DHS believes this change would provide several benefits to stakeholders and USCIS. First, DHS believes the change would reduce confusion by simplifying the application for regional center designation and providing increased guidance on the limited types of information expected by the agency for adjudicating such applications. Second, the change would likely improve adjudication times related to such applications, as USCIS adjudicators would no longer need to review documentation that is unrelated to determining whether the applicant has satisfied the basic requirements for initial designation. Third, the change should reduce the frustration currently experienced by entities that meet the evidentiary requirements for initial designation but fail to meet the evidentiary requirements necessary to meet applicable deference guidelines for their projects and investment offerings. DHS understands that the inability of entities to file other requests when seeking initial designation as a regional center could effectively delay the ability of entities to receive decisions on those requests. DHS, however, believes these impacts may be outweighed by the clarity provided to stakeholders and the operational efficiencies gained by the proposal.

    2. Mandatory Exemplar Process

    As noted above, DHS also seeks comment on its proposal to implement an exemplar filing requirement for all designated regional centers. DHS is considering (1) requiring regional centers to file exemplar project requests, both to support individual EB-5 immigrant petitions and to maintain regional center designation and (2) requiring the approval of such a request before any investor may submit his or her EB-5 immigrant petition associated with a project covered by such request. As envisioned by DHS, USCIS would use the approved exemplar as evidence when adjudicating individual immigrant petitions related to the exemplar project.

    Under the exemplar filing requirement, regional centers would be required to submit all documentation necessary to establish that investments in the project would satisfy the eligibility criteria related to investment and job creation, in addition to evidence demonstrating the regional center's continued compliance with Regional Center Program rules. Currently, exemplars typically include a comprehensive business plan, economic impact analysis, offering documents and organizational documents. Because DHS wants to ensure investments sponsored by the regional center are fully compliant with program requirements to maintain regional center designation, DHS is considering requiring that additional documentation be provided with exemplar filings, including (1) any documents related to the investment offering that have been filed with the U.S. Securities and Exchange Commission; and (2) any investment and offering documents that the regional center intends to provide to investors, as well as any agreements between the investor and the regional center.

    DHS also seeks comment on the appropriate validity period for the approval of an exemplar project to ensure the regional center is actively promoting economic growth. DHS is considering limiting each exemplar's validity period to a specific period of time, e.g., 2 to 3 years after the exemplar's approval or latest amendment or associated immigrant investor petition. DHS has determined that regional center projects that for 2 to 3 years have not been amended and have not obtained EB-5 investments are generally not active. DHS is seeking public comments on potential exemplar approval validity periods, including the amount of time needed for regional centers to recruit investors, the amount of time needed for investors to file EB-5 immigrant petitions, and the amount of time needed for projects to satisfy job creation requirements.

    Finally, DHS seeks public comment on possible modifications to the existing policy governing the impact of a “material change” on an approved exemplar. Current policy requires DHS to deny petitions where, after the petition has been filed, there are significant changes to the exemplar project, including significant changes to the job-creating entity or entities receiving associated EB-5 investment. Under this policy, DHS has also denied petitions, on a case-by-case basis, where in the time between approval of the exemplar and adjudication of the petition, there were significant changes to project timelines and changes to job creation methodologies.4 Regional centers and other stakeholders may feel that modifications to this policy may be necessary or wise if DHS were to implement a mandatory exemplar process. Public comment on this issue would help DHS determine whether and how to revise USCIS's current approach to addressing material changes in the EB-5 context to account for a potential mandatory exemplar process.

    4See USCIS Policy Manual, 6 USCIS-PM G (Nov. 30, 2016).

    DHS is considering these process changes as a means of addressing the increasing processing times associated with EB-5 immigrant petitions. DHS believes that by addressing potential issues with EB-5 projects in the exemplar process, the Department would significantly streamline the adjudication process for immigrant petitions filed by associated investors, including by significantly reducing the need to issue RFEs and NOIDs to those investors. Individual immigrant investors would also bear a lower paperwork burden and would benefit from improved predictability in adjudications. Moreover, an exemplar requirement may also lead to substantial government cost savings by reducing the paperwork, staffing, and physical space required to process EB-5 immigrant petitions. DHS understands that a mandatory exemplar process could negatively impact regional centers and investors by delaying investor filings and, as a practical matter given the prevailing structure of many regional center investment offerings, by delaying funding to regional center projects. DHS believes, however, that the operational efficiencies, reduced processing times, increased stakeholder predictability, and reduced paperwork burden resulting from the exemplar process described above would provide sufficient benefits to overcome these impacts.

    3. Specific Questions for Public Input

    DHS welcomes public comment on all aspects of the potential changes described above, but would particularly benefit from commenters addressing one or more of the following questions:

    1. How can USCIS improve the initial designation process?

    2. How would requiring an entity to obtain initial designation as a regional center prior to, and separate from, filing for approval of an exemplar project impact entities seeking regional center designation and investors seeking to associate with designated regional centers?

    3. Would a bifurcated initial application process achieve the benefits discussed above—i.e., reduced overall paperwork burdens and improved processing times? Please provide specific data on how such changes would affect time or other burdens in initial documentation preparation.

    4. What additional costs or benefits, if any, would occur as a result of adopting the suggested approach?

    5. Would adopting the suggested approach impact small entities? If so, how? Please provide data to support your response. Please identify any alternative policy proposals or other recommendations that would accomplish some or all of the goals identified above, while mitigating impacts on small entities.

    6. Would it benefit potential immigrant investors to know whether or not an entity has been designated as a regional center, if the initial designation decision notice is solely for designation and does not include any decisions on exemplar projects?

    7. Would a streamlined exemplar filing process impact any regional center or investor costs?

    8. Should exemplar approval be required prior to a regional center-associated investor submitting an EB-5 immigrant petition? Please support the response by providing information regarding the costs and benefits of alternatives (e.g., by permitting concurrent filing with EB-5 immigrant petitions).

    9. What additional costs and benefits would regional centers or investors incur as a result of a required exemplar approval prior to submitting EB-5 immigrant petitions?

    10. What documentation should be required to accompany an exemplar application?

    11. In what circumstances should a regional center be required to file to amend a previously approved exemplar?

    12. For what duration should an exemplar approval be valid, and why?

    13. Under what circumstances should USCIS seek to terminate a previously approved exemplar?

    14. What effect, if any, should termination or expiration of an approved exemplar have on an investor whose immigrant visa petition has not yet been adjudicated?

    15. What concerns, if any, would be raised by the elimination of the “actual” project deference process, wherein regional centers seek approval of the business plan and economic impact analysis associated with an investment offering, but not the investment offering documents?

    16. Would some projects be deterred by a requirement to have an approved exemplar? DHS is particularly interested in how the exemplar requirement may affect the number of projects that obtain EB-5 investment and associated parties. Additionally, DHS seeks input on how an exemplar requirement might affect costs related to project timelines, business plan fees, and regional center administrative fees.

    17. Would an exemplar requirement impact the financial structure of regional center investments? For example, would such a requirement decrease or increase the EB-5 capital portion of a project's total finance? Would it impact the overall financing costs and rates of return for investors, regional centers, and developers?

    18. How could USCIS define the term “material change” to account for the exemplar process, consistent with applicable regulations and case law, including regulations requiring petitioners to be eligible for the requested benefit at the time of filing and to remain eligible until the benefit is granted? 5 Please discuss how a new material change definition would impact pending EB-5 immigrant petitions.

    5See 8 CFR 103.2(b)(1), 8 CFR 205.2; see also Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm'r 1998), Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990), Matter of Arias, 19 I&N Dec. 568 (BIA 1988), Matter of Estime, 19 I&N Dec. 450 (BIA 1987).

    B. Safeguards for Monitoring and Oversight

    DHS has found that current regulations would benefit from additional safeguards to ensure that all regional centers (1) use immigrant investor funds to promote economic growth, and (2) protect against the misuse of such funds. DHS is therefore considering incorporating additional regulatory requirements for initial designation as a regional center. For instance, DHS could require assurances that the regional center commit to an appropriate level of internal monitoring and oversight of investment offerings and business activities associated with the regional center or under its sponsorship. This would include investment offerings and business activities of any associated new commercial enterprises (NCEs) or job-creating entities (JCEs). DHS is seeking to help ensure that the stakeholder granted a regional center designation will perform appropriate oversight and monitoring with respect to capital investments, job creation, and business activities under its auspices such that the pooled capital investments at its NCEs and JCEs will promote economic growth.

    DHS seeks data and information on potential methods for ensuring an appropriate level of monitoring and oversight, including through regional center attestations, the submission of detailed information about the regional center's oversight efforts of its NCEs and JCEs, and other compliance and enforcement mechanisms. DHS understands that these and similar measures may be burdensome to stakeholders, but believes that such requirements could improve the regional center program by providing regional centers with the tools to ensure that associated NCEs and JCEs comply with program requirements. This would ensure only regional centers with effective oversight could operate within the program. DHS believes that this would enhance the program's integrity and ultimately benefit both regional centers and investors by providing greater trust in the entities operating within the program.

    DHS welcomes public comment on the issues described above, but would particularly benefit from commenters addressing one or more of the following questions:

    1. What would be the most effective and efficient way to add monitoring and oversight requirements? Should such requirements be incorporated into the initial designation stage, the exemplar stage, or throughout the period of the regional center's designation?

    2. What forms of monitoring and oversight of NCEs, JCEs, and investor funds are regional centers currently utilizing as part of their best practices?

    3. Do other entities associated with regional centers engage in monitoring and oversight?

    4. What benefits, if any, would additional monitoring and oversight offer to regional centers and to immigrant investors?

    5. What types of documentation would be appropriate for regional centers to submit to establish that they will have an adequate monitoring and oversight process in place upon designation?

    6. What measures, if any, have regional centers put in place to identify conflicts of interest by regional center participants? What requirements for identification and disclosure of conflicts of interest would be appropriate in the regional center context?

    7. What investment and other economic impacts could be expected from the establishment of new monitoring and oversight requirements?

    8. What data and information should USCIS consider affirmatively disclosing to increase transparency in the EB-5 program?

    9. What additional costs would stakeholders incur in setting up and maintaining a monitoring and oversight process?

    10. Would an additional filing fee or additional costs to regional centers in preparing documentation for separate filings be too burdensome to support or justify the suggested initial filing framework?

    11. Would any of the potential changes described above either deter or incentivize participation in the program, or directly affect the viability of certain types of investment projects? If so, how could USCIS best measure the likely effects?

    12. Would any of the potential changes described above impact small entities? If so, how? Please provide data to support your response. Please identify any alternative policy proposals or other recommendations that would accomplish some or all of the goals identified above, while mitigating impacts on small entities.

    C. Continued Participation

    DHS is considering ways to clarify the requirements for regional centers to maintain their designation. Under the current regulatory framework, regional centers must provide USCIS with updated information to demonstrate they are continuing to meet program requirements—i.e., promoting economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area. Such information must be submitted to USCIS on an annual basis or as otherwise requested by USCIS, generally by filing the Annual Certification of Regional Center (Form I-924A). See 8 CFR 204.6(m)(6). USCIS will issue a notice of intent to terminate the participation of a regional center in the EB-5 program if a regional center fails to submit the required information or upon a determination that the regional center no longer meets program requirements. Id.

    The requirement that regional centers continue to serve the purpose of promoting economic growth is subject to varying interpretations, and regional centers have expressed uncertainty regarding the requirements for continued participation. In addition, DHS has found that a number of regional centers have maintained their designation without actually engaging in work related to the EB-5 program, which has led to growing concerns of potential fraud.

    DHS is therefore considering certain changes to the regulations governing continued regional center designations, including changes that would require existing and newly designated regional centers to demonstrate that they continue to meet applicable statutory and regulatory requirements. Specifically, DHS is considering the following requirements for continued participation:

    • Requiring evidence of active participation in the regional center program. Such evidence could include having an approved and currently valid exemplar; having pending exemplar applications that were filed within a specific time frame; or the existence of pending Form I-526 or I-829 petitions that are associated with the regional center and that were filed within a specific time frame.

    • Requiring periodic demonstrations that the regional center has active monitoring and oversight activities as described in the previous section.

    • Requiring prompt notification to DHS of significant changes to the regional center through the timely filing of amendments to the regional center designation. The effect of such a requirement would turn on how DHS interprets the term “significant” in this context. For instance, DHS currently considers the following change to the regional center to be significant: 6

    6See 81 FR 73292; Form I-924 is available at http://www.uscis.gov/I-924.

    • Changes to the regional center's name;

    • Changes to the regional center's ownership;

    • Changes to the regional center's organizational structure;

    • Changes to the regional center's administration that affect its oversight and reporting responsibilities;

    • Changes to add or remove regional center principals; and/or

    • Changes to the geographic scope of the regional center.

    DHS is considering whether or not other changes may be deemed significant, such as material changes to an approved exemplar filing.

    DHS welcomes public comment on all aspects of the potential changes described above, but would particularly benefit from commenters addressing one or more of the following questions:

    1. How would regional centers or immigrant investors benefit, if at all, from an explicit requirement that the regional center actively participate in the Regional Center Program?

    2. What activities demonstrate active participation in the Regional Center Program? What evidence should regional centers be required to provide to demonstrate active participation?

    3. If DHS conditions a finding of active participation on evidence that the regional center is associated with an approved and valid exemplar, a pending exemplar application, or a pending Form I-526 or I-829 petition associated with the regional center, how long should the regional center be able to retain its designation in the absence of such approved or pending exemplar or pending petition? Why is such a timeframe appropriate?

    4. How would a continual monitoring and oversight requirement impact currently designated regional centers?

    5. How would a monitoring and oversight requirement impact small entities? Please provide data to support your response. Please identify any alternative policy proposals or other recommendations that would accomplish some or all of the goals identified above, while mitigating impacts on small entities.

    6. In what circumstances should a regional center be required to amend a regional center designation during an out-of-cycle filing?

    7. What additional changes to the regional center amendment process would assist stakeholders in complying with the process?

    8. Should DHS reconsider the current filing structure for notifying USCIS of the suggested changes—i.e., filing an amended Form I-924 petition with a fee? If so, what would be appropriate alternatives, and why?

    D. Termination

    Currently, USCIS can issue a Notice of Intent to Terminate and subsequently terminate a regional center designation if the regional center fails to submit required information annually, or if USCIS determines that the regional center no longer serves the purpose of promoting economic growth. See 8 CFR 204.6(m)(6). DHS is considering providing additional regulatory guidance to help stakeholders better understand the actions that can lead to termination of a regional center designation. Providing more detail about the types of activity (or inactivity) that may result in termination of the regional center would help regional centers better understand their obligations. This guidance would assist USCIS in more efficiently terminating non-compliant regional centers and ultimately help strengthen program integrity by providing a consistent framework for adjudication of these decisions. Finally, this guidance would help ensure that regional centers are legitimately pooling capital investment and promoting economic growth consistent with the purpose of the Regional Center Program.

    Some of the activities that DHS is considering explicitly listing as activities that would result in termination of the regional center include:

    • Failure to meet the continued participation requirements;

    • Obtaining designation by fraud or misrepresentation;

    • Using unlawfully sourced funds to run regional center operations; or

    • Misusing investor funds, including, but not limited to, use in any unlawful activity (e.g., Ponzi schemes).

    DHS is seeking stakeholder input on actions that would cause USCIS to initiate termination actions against a regional center. DHS welcomes public comment on all aspects of the termination considerations, but would particularly benefit from commenters addressing one or more of the following questions:

    1. What should DHS do to more effectively regulate the regional centers participating in this program?

    2. Should the failure to maintain approved exemplar filings result in termination?

    3. What activities should be considered a failure to promote economic growth and result in termination of the regional center?

    4. What impact, positive or negative, would changes to clarify the termination grounds and process have on regional centers and/or investors? What impact would the changes have on small entities? Please provide data to support your response. Please identify any alternative policy proposals or other recommendations that would accomplish some or all of the goals identified above, while mitigating impacts on small entities.

    5. What other factors impacting the regional center and/or investors should DHS consider when terminating a regional center?

    Jeh Charles Johnson, Secretary.
    [FR Doc. 2017-00441 Filed 1-10-17; 8:45 am] BILLING CODE 9111-97-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9568; Directorate Identifier 2016-NM-150-AD] RIN 2120-AA64 Airworthiness Directives; 328 Support Services GmbH (Type Certificate Previously Held by AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH) Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain 328 Support Services GmbH Model 328-100 airplanes and 328 Support Services GmbH Model 328-300 airplanes. This proposed AD was prompted by reports of broken bonding wires of certain fuel line clamps. This proposed AD would require a one-time inspection of certain fuel line clamps for discrepancies, and replacement of any discrepant clamps. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by February 27, 2017.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

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

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact 328 Support Services GmbH, Global Support Center, P.O. Box 1252, D-82231 Wessling, Federal Republic of Germany; telephone +49 8153 88111 6666; fax +49 8153 88111 6565; email [email protected]; Internet http://www.328support.de. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9568; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1175; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9568; Directorate Identifier 2016-NM-150-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0169, dated August 17, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain 328 Support Services GmbH Model 328-100 and Model 328-300 airplanes. The MCAI states:

    Occurrences of broken bonding wires of the fuel line clamps have been reported on Dornier 328-100 and Dornier 328-300 aeroplanes equipped with fuel line clamps Part Number (P/N) 14C02-10A, or P/N 14C02-12A, or P/N 14C02-16A. The affected fuel line clamps have been installed in accordance with the instructions of SB-328-28-490 or SB-328J-28-241 to reduce occurrences of fuel line chafing.

    The results of the investigation did not identify design deficiency or production failure of the fuel line clamps. It is assumed that the chafing and breaking of the bonding wires are caused either by excessive vibration, misalignment, excessive installation tolerances or mistakes on installation or a combination * * * thereof.

    This condition, if not detected and corrected, could lead to the loss of bonding function and, in combination with a lightning strike, create a source of ignition in a fuel tank, possibly resulting in a fire or explosion and consequent loss of the aeroplane.

    To address this unsafe condition, 328 Support Services issued Alert Service Bulletin ASB-328-28-041 for Dornier 328-100 aeroplanes and ASB-328J-28-018 for Dornier 328-300 aeroplanes respectively (hereafter referred to collectively as `the applicable ASB' in this [EASA] AD) providing inspection instructions.

    For the reason stated above, this [EASA] AD requires a one-time inspection of the fuel line clamps [for discrepancies including damaged, worn, or missing bonding wires, and chafing or incorrect alignment of jet pumps, connection parts, and fuel lines] and, depending on findings, replacement. This [EASA] AD also requires the reporting of all inspection results to the design approval holder.

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

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9568.

    Related Service Information Under 1 CFR Part 51

    328 Support Services GmbH issued Alert Service Bulletin ASB-328J-28-018, Revision 1, dated October 13, 2016; and Alert Service Bulletin ASB-328-28-041, Revision 1, dated October 13, 2016. The service information describes a one-time inspection of the fuel line clamps, and replacement of any clamps with worn or missing bonding wires. These documents are distinct since they apply to different airplane models.

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

    FAA's Determination and Requirements of This Proposed AD

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

    Costs of Compliance

    We estimate that this proposed AD affects 35 airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspection 8 work-hours × $85 per hour = $680 $0 $680 $23,800 Reporting 1 work-hour × $85 per hour = $85 0 85 2,975

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement of discrepant clamps on Model 328-100 airplanes Up to 1 work-hour × $85 per hour = $85 Up to $560 Up to $645. Replacement of discrepant clamps on Model 328-300 airplanes Up to 1 work-hour × $85 per hour = $85 Up to $588 Up to $673.
    Paperwork Reduction Act

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 328 Support Services GmbH (Type Certificate Previously Held by AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH): Docket No. FAA-2016-9568; Directorate Identifier 2016-NM-150-AD. (a) Comments Due Date

    We must receive comments by February 27, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to 328 Support Services GmbH (Type Certificate Previously Held by AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH) airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD.

    (1) Model 328-100 airplanes, on which Dornier 328 Service Bulletin SB-328-28-490, has been incorporated.

    (2) Model 328-300 airplanes, on which Dornier 328J Service Bulletin SB-328J-28-241, has been incorporated.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Reason

    This AD was prompted by reports of broken bonding wires of certain fuel line clamps. We are issuing this AD to prevent the loss of bonding function, which, in combination with a lightning strike, could create a source of ignition in a fuel tank, possibly resulting in a fire or explosion and consequent loss of the airplane.

    (f) Compliance

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

    (g) Inspection

    Within 6 months after the effective date of this AD, do a one-time general visual inspection for discrepancies, as identified in, and in accordance with, the Accomplishment Instructions of the service information specified in paragraph (g)(1) or (g)(2) of this AD, as applicable.

    (1) 328 Support Services GmbH Alert Service Bulletin ASB-328-28-041, Revision 1, dated October 13, 2016 (Model 328-100 airplanes).

    (2) 328 Support Services GmbH Alert Service Bulletin ASB-328J-28-018, Revision 1, dated October 13, 2016 (Model 328-300 airplanes).

    (h) Replacement of Parts

    If any discrepancy is found during the inspection required by paragraph (g) of this AD, before further flight, replace the affected clamp in accordance with the Accomplishment Instructions of the service information specified in paragraph (g)(1) or (g)(2) of this AD, as applicable.

    (i) Reporting

    At the applicable time specified in paragraph (i)(1) or (i)(2) of this AD, report the inspection results, positive or negative, to 328 Support Services, GmbH, Global Support Center, P.O. Box 1252, D-82231 Wessling, Federal Republic of Germany; fax +49 8153 88111 6565; email [email protected] The report must include findings on fuel line clamps, aircraft serial number, total flight hours, and total landings.

    (1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.

    (2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.

    (j) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (j)(1) or (j)(2) of this AD.

    (1) 328 Support Services GmbH Alert Service Bulletin ASB-328-28-041, dated June 14, 2016.

    (2) 328 Support Services GmbH Alert Service Bulletin ASB-328J-28-018, dated June 3, 2016.

    (k) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1175; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or 328 Support Services GmbH's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0169, dated August 17, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9568.

    (2) For service information identified in this AD, contact 328 Support Services GmbH, Global Support Center, P.O. Box 1252, D-82231 Wessling, Federal Republic of Germany; telephone +49 8153 88111 6666; fax +49 8153 88111 6565; email [email protected]; Internet http://www.328support.de. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on December 27, 2016. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-31965 Filed 1-10-17; 8:45 am] BILLING CODE 4910-13-P
    NATIONAL ARCHIVES AND RECORDS ADMINISTRATION Information Security Oversight Office 32 CFR Part 2004 [FDMS No. NARA-16-0006; Agency No. NARA-2017-017] RIN 3095-AB79 National Industrial Security Program AGENCY:

    Information Security Oversight Office, National Archives and Records Administration (NARA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Information Security Oversight Office (ISOO) of the National Archives and Records Administration (NARA), proposes to revise the National Industrial Security Program (NISP) Directive. The NISP safeguards classified information the Federal Government or foreign governments release to contractors, licensees, grantees, and certificate holders. This proposed revision adds provisions incorporating executive branch insider threat policy and minimum standards, identifies the Office of the Director of National Intelligence (ODNI) and the Department of Homeland Security (DHS) as new cognizant security agencies (CSAs), and adds responsibilities for all CSAs and non-CSA departments and agencies (to reflect oversight functions that are already detailed for private sector entities in the National Industrial Security Program Operating Manual (NISPOM)). The proposed revisions also make other administrative changes to be consistent with recent revisions to the NISPOM and with updated regulatory language and style.

    DATES:

    Submit comments by February 10, 2017.

    ADDRESSES:

    You may submit comments, identified by RIN 3095-AB79, by any of the following methods:

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

    Email: [email protected] Include RIN 3095-AB79 in the subject line of the message.

    Mail (for paper, disk, or CD-ROM submissions. Include RIN 3095-AB79 on the submission): Regulations Comments Desk (External Policy Program, Strategy and Performance Division (SP)); Suite 4100; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001.

    Hand delivery or courier: Deliver comments to the front desk at the address above.

    Instructions: You must include on all submissions the Regulatory Information Number (RIN) for this rulemaking (RIN 3095-AB79) and NARA's name. We may publish any comments we receive without changes, including any personal information you provide.

    FOR FURTHER INFORMATION CONTACT:

    For information about this regulation and the regulatory process, contact Kimberly Keravuori, External Policy Program Manager, by email at [email protected], or by telephone at 301.837.3151. For information about the NISP and the requirements in this regulation, contact William A. Cira, Acting Director, ISOO, by telephone at 202-357-5323.

    SUPPLEMENTARY INFORMATION:

    We have coordinated and vetted the proposed revisions through the CSAs listed in Executive Order (E.O.) 12829, National Industrial Security Program (January 6, 1993 (58 FR 3479)), as amended by E.O. 12885 (December 14, 1993 (58 FR 65863): Department of Defense, Department of Energy, Nuclear Regulatory Commission, Office of the Director of National Intelligence, and Department of Homeland Security. We have also coordinated this with the other executive branch agencies that are members of the National Industrial Security Program Policy Advisory Committee (NISPPAC) or that release classified information to contractors, licensees, grantees, or certificate holders, and with the industry members of the NISPPAC. The proposed revisions do not change requirements for industry (which are contained in the NISPOM), but instead clarify agency responsibilities.

    Background

    The NISP is the Federal Government's single, integrated industrial security program. E.O. 12829 (amended in 1993) established the NISP to safeguard classified information in industry and preserve the nation's economic and technological interests. The President issued E.O. 13691, Promoting Private Sector Cybersecurity Information Sharing (February 13, 2015 (80 FR 9347)), and E.O. 13708, Continuance or Reestablishment of Certain Federal Advisory Committees (September 30, 2015 (80 FR 60271)), which further amended E.O. 12829.

    E.O. 12829, sec. 102(b), delegated oversight of the NISP to the Director of NARA's Information Security Oversight Office (ISOO). As part of ISOO's responsibilities under E.O. 12829, it is authorized to issue such directives as necessary to implement the E.O., which are binding on agencies. In 2006, ISOO issued, and periodically updates, this regulation, which functions as one of those directives.

    This regulation establishes uniform standards throughout the Program, and helps agencies implement requirements in E.O. 12829, as amended (collectively referred to as “E.O. 12829”). This revision also establishes agency responsibilities for implementing the insider threat provisions of E.O. 13587, Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information (October 7, 2011 (76 FR 63811)) within the NISP. However, the regulation does not stand alone; users should refer concurrently to the underlying executive orders for guidance.

    Nothing in this regulation supersedes the authority of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011, et seq.); the authority of the Director of National Intelligence (or any intelligence community element) under the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458), the National Security Act of 1947 (50 U.S.C. 401, et seq.), as amended, and E.O. 12333 (December 4, 1981), as amended by E.O. 13355, Strengthened Management of the Intelligence Community (August 27, 2004) and E.O. 13470, Further Amendments to Executive Order 12333 (July 30, 2008); or the authority of the Secretary of Homeland Security, as the Executive Agent for the Classified National Security Information Program established under E.O. 13549, Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities (August 18, 2010), or by E.O. 13284, Amendment of Executive Orders, and Other Actions, in Connection with the Establishment of the Department of Homeland Security, (January 23, 2003).

    Revision Process and Proposed Changes

    This proposed rule reflects a national level policy framework that should not change existing practices and procedures for any of the affected agencies or for entities in any significant way. A working group comprised of NISP CSA representatives, ISOO staff, the Department of Defense's (DoD) Defense Security Service (DSS), and the Central Intelligence Agency, drafted this proposed rule.

    We initiated the proposed revisions in 2013 to incorporate new insider threat program requirements as a result of E.O. 13587, Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information, October 2011, and the associated National Insider Threat Policy and Minimum Standards from the White House in November 2012. The national insider threat policy directs that the Government apply insider threat provisions to private sector entities that access classified information, which the executive branch accomplishes through the National Industrial Security Program Operating Manual (NISPOM), issued by the NISP Executive Agent, DoD. The NISPOM also provides private sector entities that access classified information with other NISP requirements and procedures. On the other side of the equation, this NISP regulation gives policy direction and establishes responsibilities for the agencies that release classified information to private sector entities to ensure that the agencies provide consistent oversight of entity programs. We are therefore proposing revisions to the regulation to add the insider threat requirements that pertain to NISP oversight by agencies; similar provisions have been added to the NISPOM for private sector entities to follow. The NISP CSAs, ISOO, and the National Insider Threat Task Force (NITTF) collaborated on the proposed insider threat provisions that are incorporated.

    During review of the regulation, the working group determined that, although the NISPOM provides requirements and procedures for entities, this regulation did not include many of the coinciding oversight requirements for agencies. We therefore expanded the revision to include adding aspects of NISP implementation for which the agencies have a responsibility that weren't already spelled out in the regulation. These proposed changes include adding responsibility provisions for CSAs and Government contracting activities (GCAs), standards by which they make entity and employee eligibility determinations for access to classified information, standards for assessing foreign ownership, control, or influence and for mitigating or negating it, and identifying CSA and non-CSA agency responsibilities for security classification and for authorizing entity information systems to process classified information. While CSAs and other agencies have been carrying out these responsibilities since the establishment of the NISP under E.O. 12829, and they have been spelled out in the NISPOM, they were not previously included in this regulation. We are including them to ensure agencies consistently apply the NISP requirements for all entities that have access to classified information and thereby aid in reducing processing burdens on entities. This affords agencies the opportunity to ensure that they are complying with existing NISP requirements, to include verifying that all current contracts or agreements with contractors, licensees, or grantees include appropriate security requirements. E.O. 12829 was amended by E.O. 13691, Promoting Private Sector Cybersecurity Information Sharing, in February 2015. The amendment established the DHS as a CSA, not limited to the classified critical infrastructure protection program (CCIPP). As part of its CSA responsibilities, DHS will perform oversight of critical sector entities participating in the CCIPP. We also incorporated DHS responsibilities as a CSA and the provisions of the CCIPP into this revision.

    We have also made some proposed revisions to more clearly set out items that were already in the regulation. One such proposed change is the approach to reciprocity. Because of the separate and unique authorities of the CSAs, one CSA might not, in some cases, reciprocally accept entity eligibility determinations made by another CSA. However, the proposed revision stipulates that CSAs will not require entities to go through duplicate steps for eligibility determinations. This should help reduce and streamline eligibility determinations for entities receiving classified information from more than one agency.

    We are also proposing some new, more general terminology (like “entity eligibility determination,” which describes a process all CSAs do, instead of “facility security clearance (FCL),” which is an agency-specific term for a favorable determination resulting from that process). Our goal is to create a common framework that all CSAs can effectively use because it sets out requirements in terms that encompass CSA processes for varying types of classified information under the NISP. These terminology changes do not preclude the CSAs from using their traditional terminology in agency policies that implement this rule or in the NISPOM.

    The NISPOM currently includes a limited facility security clearance as an option for agencies to consider when foreign ownership, control, or influence (FOCI) of an entity cannot be mitigated or negated. We have added the limited eligibility determination option to this regulation, but have also expanded it to include limited eligibility for entities that are not under FOCI, but for which an agency considers it appropriate to limit access to a specific and narrow purpose.

    In addition, we have made some drafting changes to make the regulation more readable.

    Regulatory Analysis

    The Office of Management and Budget (OMB) has reviewed this proposed regulation.

    Review Under Executive Orders 12866 and 13563

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (September 30, 1993), and Executive Order 13563, Improving Regulation and Regulation Review, 76 FR 23821 (January 18, 2011), 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). This proposed rule is “significant” under Executive Order 12866, sec. 3(f), but is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking. The Office of Management and Budget (OMB) has reviewed this proposed regulation.

    Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    This review requires an agency to prepare an initial regulatory flexibility analysis and publish it when the agency publishes the proposed rule. This requirement does not apply if the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities (5 U.S.C. 603). As required by the Regulatory Flexibility Act, we certify that this proposed rulemaking will not have a significant impact on a substantial number of small entities because it applies only to Federal agencies. This regulation does not establish requirements for entities; those requirements are established in the NISPOM. This rule sets out coinciding requirements for agencies. However, agencies implementing this regulation will do so through contracts with businesses (as well as other agreements with entities) and thus it indirectly affects those entities. Agencies have been applying the requirements and procedures contained in the NISPOM (and, to a lesser extent, contained in this regulation) to entities for 20 years, with the exception of insider threat provisions added to the NISPOM in 2016, and the proposed additions to this regulation do not substantially alter those requirements. Most of the provisions being added to this regulation have applied to entities through the NISPOM; we are simply incorporating the agency responsibilities for those requirements into the regulation.

    Other revisions to this regulation are primarily administrative, except the new insider threat requirements. The insider threat requirements make minor additions to training, oversight, information system security, and similar functions already being conducted by entities, and thus will not have a significant economic impact on a substantial number of small business entities.

    Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule contains information collection activities that are subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. We refer to the following OMB-approved DoD information collection in §§ 2004.34(b), 2004.34(c)(1) of this regulation: OMB control No. 0704-0194, SF 328, Certificate Pertaining to Foreign Interests, approved through September 30, 2019. DoD published the information collection notice in the Federal Register in May 2015 (80 FR 27938, May 15, 2015) for public comment, and the notice of OMB review in the Federal Register in July 2016 (81 FR 47790, July 22, 2016), providing a second opportunity for public comment.

    Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 1999)

    Review under Executive Order 13132 requires that agencies review regulations for federalism effects on the institutional interest of states and local governments, and, if the effects are sufficiently substantial, prepare a Federal assessment to assist senior policy makers. This proposed rule will not have any direct effects on State and local governments within the meaning of the Executive Order. Therefore, this rule does not include a federalism assessment.

    List of Subjects in 32 CFR Part 2004

    Classified information, National Industrial Security Program.

    For the reasons stated in the preamble, the National Archives and Records Administration proposes to revise 32 CFR part 2004 to read as follows:

    PART 2004—NATIONAL INDUSTRIAL SECURITY PROGRAM (NISP) Subpart A—Implementation and Oversight 2004.1 Purpose and scope. 2004.4 Definitions that apply to this part. 2004.10 Responsibilities of the Director, Information Security Oversight Office (ISOO). 2004.11 CSA and agency implementing regulations, internal rules, or guidelines. 2004.12 ISOO reviews of agency NISP implementation. Subpart B—Administration 2004.20 National Industrial Security Program Executive Agent (EA) and Operating Manual (NISPOM). 2004.22 Agency responsibilities. 2004.24 Insider threat program. 2004.26 Reviews of entity NISP implementation. 2004.28 Cost reports. Subpart C—Operations 2004.30 Security classification requirements and guidance. 2004.32 Determining entity eligibility for access to classified information. 2004.34 Foreign ownership, control, or influence (FOCI). 2004.36 Determining entity employee eligibility for access to classified information. 2004.38 Safeguarding and marking. 2004.40 Information system security. 2004.42 International programs security. [Reserved] Appendix A to Part 2004—Acronym Table Authority:

    Section 102(b)(1) of E.O. 12829 (January 6, 1993), as amended by E.O. 12885 (December 14, 1993), E.O. 13691 (February 12, 2015), and section 4 of E.O. 13708 (September 30, 2015).

    Subpart A—Implementation and Oversight
    § 2004.1 Purpose and scope.

    (a) This part sets out the National Industrial Security Program (“NISP” or “the Program”) governing the protection of executive-branch agency classified information released to Federal contractors, licensees, grantees, and certificate holders. It establishes uniform standards throughout the Program, and helps agencies implement requirements in E.O. 12829, National Industrial Security Program, as amended by E.O. 12558 and E.O.13691 (collectively referred to as “E.O. 12829”), E.O. 13691, Promoting Private Sector Cybersecurity Information Sharing, and E.O. 13587, Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information. It applies to any executive branch agency that releases classified information to current, prospective, or former Federal contractors, licensees, grantees, or certificate holders. However, this part does not stand alone; users should refer concurrently to the underlying executive orders for guidance. ISOO maintains policy oversight over the NISP as established by E.O.12829.

    (b) This part also does not apply to release of classified information pursuant to criminal proceedings. The Classified Information Procedures Act (CIPA) (18 U.S.C. Appendix 3) governs release of classified information in criminal proceedings.

    (c) Nothing in this part supersedes the authority of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011, et seq.) (collectively referred to as “the Atomic Energy Act”); the authority of the Director of National Intelligence (or any intelligence community element) under the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458), the National Security Act of 1947 as amended (50 U.S.C. 401, et seq.), and E.O. 12333 (December 4, 1981), as amended by E.O. 13355, Strengthened Management of the Intelligence Community (August 27, 2004) and E.O. 13470, Further Amendments to Executive Order 12333 (July 30, 2008) (collectively referred to as “E.O. 12333”); or the authority of the Secretary of Homeland Security, as the Executive Agent for the Classified National Security Information Program established under E.O. 13549, Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities (August 18, 2010), or as established by E.O. 13284, Amendment of Executive Orders, and Other Actions, in Connection with the Establishment of the Department of Homeland Security (January 23, 2003).

    § 2004.4 Definitions that apply to this part.

    (a) Access is the ability or opportunity to gain knowledge of classified information.

    (b) Agency(ies) are any “Executive agency” as defined in 5 U.S.C. 105; any “Military department” as defined in 5 U.S.C. 102; and any other entity within the executive branch that releases classified information to private sector entities. This includes component agencies under another agency or under a cross-agency oversight office (such as ODNI with CIA), which are also agencies for purposes of this part.

    (c) Classified Critical Infrastructure Protection Program (CCIPP) is the DHS program established by E.O. 13691, “Promoting Private Sector Cybersecurity Information Sharing.” The Government uses this program to share classified threat information with employees of private sector entities that own or operate critical infrastructure. Critical infrastructure refers to systems and assets, whether physical or virtual, so vital to the United States that incapacitating or destroying such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination thereof. These entities include banks and power plants, among others. The sectors of critical infrastructure are listed in Presidential Policy Directive 21, Critical Infrastructure Security and Resilience (February 12, 2013).

    (d) Classified Critical Infrastructure Protection Program (CCIPP) security point of contact (security POC) is an official whom a CCIPP entity designates to maintain eligibility information about the entity and its cleared employees, and to report that information to DHS. The CCIPP security POC must be eligible for access to classified information.

    (e) Classified information is information the Government designates as requiring protection against unauthorized disclosure in the interest of national security, pursuant to E.O. 13526, Classified National Security Information, or any predecessor order, and the Atomic Energy Act of 1954, as amended. Classified information includes national security information (NSI), restricted data (RD), and formerly restricted data (FRD), regardless of its physical form or characteristics (including tangible items other than documents).

    (f) Cognizance is the area over which a CSA has operational oversight. Normally, a statute or executive order establishes a CSA's cognizance over certain types of information, programs, or non-CSA agencies, although CSAs may also have cognizance through an agreement with another CSA or non-CSA agency or an entity. A CSA may have cognizance over a particular type(s) of classified information based on specific authorities (such as those listed in 2004.1(d)), and a CSA may have cognizance over certain agencies or cross-agency programs (such as DoD's cognizance over non-CSA agencies as the EA for NISP, or ODNI's oversight (if applicable) of all intelligence community elements within the executive branch). Entities fall under a CSA's cognizance when they enter or compete to enter contracts or agreements to access classified information under the CSA's cognizance, including when they enter or compete to enter such contracts or agreements with a non-CSA agency or another entity under the CSA's cognizance.

    (g) Cognizant security agencies (CSAs) are the agencies E.O. 12829, sec. 202, designates as having NISP implementation and security responsibilities for their own agencies (including component agencies) and any entities and non-CSA agencies under their cognizance. The CSAs are: Department of Defense (DoD); Department of Energy (DOE); Nuclear Regulatory Commission (NRC); Office of the Director of National Intelligence (ODNI); and Department of Homeland Security (DHS).

    (h) Cognizant security office (CSO) is an organizational unit to which the head of a CSA delegates authority to administer industrial security services on behalf of the CSA.

    (i) Contracts or agreements are any type of arrangement between an agency and an entity or an agency and another agency. They include, but are not limited to, contracts, sub-contracts, licenses, certificates, memoranda of understanding, inter-agency service agreements, other types of documents or arrangements setting out responsibilities, requirements, or terms agreed upon by the parties, programs, projects, and other legitimate U.S. or foreign government requirements. FOCI mitigation or negation measures, such as Voting Trust Agreements, that have the word “agreement” in their title are not included in the term “agreements” within this part.

    (j) Controlling agency is an agency that owns or controls certain types of proscribed information and thus has authority over access to or release of the proscribed information. For communications security information (COMSEC), the controlling agency is NSA; for restricted data (RD), the controlling agency is DOE; and for sensitive compartmented information (SCI), the controlling agency is ODNI. For Top Secret and SAP information, the controlling agency is always the same agency as the GCA.

    (k) Entity is a generic and comprehensive term which may include sole proprietorships, partnerships, corporations, limited liability companies, societies, associations, institutions, contractors, licensees, grantees, certificate holders, and other organizations usually established and operating to carry out a commercial, industrial, educational, or other legitimate business, enterprise, or undertaking, or parts of these organizations. It may reference an entire organization, a prime contractor, parent organization, a branch or division, another type of sub-element, a sub-contractor, subsidiary, or other subordinate or connected entity (referred to as “sub-entities” when necessary to distinguish such entities from prime or parent entities), a specific location or facility, or the headquarters/official business location of the organization, depending upon the organization's business structure, the access needs involved, and the responsible CSA's procedures. The term “entity” as used in this part refers to the particular entity to which an agency might release, or is releasing, classified information, whether that entity is a parent or subordinate organization.

    (l) Entity eligibility determination is an assessment by the CSA as to whether an entity is eligible for access to classified information of a certain level (and all lower levels). Eligibility determinations may be broad or limited to specific contracts, sponsoring agencies, or circumstances. A favorable determination results in eligibility to access classified information under the cognizance of the responsible CSA to the level approved. When the entity would be accessing categories of information such as RD or SCI for which the CSA for that information has set additional requirements, CSAs must also assess whether the entity is eligible for access to that category. Some CSAs refer to their favorable determinations as facility security clearances (FCL). A favorable entity eligibility determination does not convey authority to store classified information.

    (m) Foreign interest is any foreign government, agency of a foreign government, or representative of a foreign government; any form of business enterprise or legal entity organized, chartered, or incorporated under the laws of any country other than the United States or its territories; and any person who is not a United States citizen or national.

    (n) Government contracting activity (GCA) is an agency component or subcomponent to which the agency head delegates broad authority regarding acquisition functions. A foreign government may also be a GCA.

    (o) Industrial security services are those activities performed by a CSA to verify that an entity is protecting classified information. They include, but are not limited to, conducting oversight reviews, making eligibility determinations, and providing agency and entity guidance and training.

    (p) Insider(s) are entity employees who are eligible to access classified information and may be authorized access to any U.S. Government or entity resource (such as personnel, facilities, information, equipment, networks, or systems).

    (q) Insider threat is the likelihood, risk, or potential that an insider will use his or her authorized access, wittingly or unwittingly, to do harm to the national security of the United States. Insider threats may include harm to entity or program information to the extent that the information impacts the entity's or agency's obligations to protect classified information.

    (r) Insider threat response action(s) are actions (such as investigations) an agency takes to ascertain whether an insider threat exists, and actions the agency takes to mitigate the threat. Agencies may conduct insider threat response actions through their counterintelligence (CI), security, law enforcement, or inspector general organizations, depending on the statutory authority and internal policies that govern the agency.

    (s) Insider threat program senior official (SO) is the official an agency head or entity designates with responsibility to manage, account for, and oversee the agency's or entity's insider threat program, pursuant to the National Insider Threat Policy and Minimum Standards. An agency may have more than one insider threat program SO.

    (t) Key managers and officials (KMO) are the senior management official (or authorized executive official under CCIPP), the entity's security officer (or security POC under CCIPP), the insider threat program senior official, and other entity employees whom the responsible CSA identifies as having authority, direct or indirect, to influence or decide matters affecting the entity's management or operations, its classified contracts, or national security interests. They may include individuals who hold majority ownership interest in the entity (in the form of stock or other ownership interests).

    (u) Proscribed information is information that is classified as top secret (TS) information; communications security (COMSEC) information (excluding controlled cryptographic items when un-keyed or utilized with unclassified keys); restricted data (RD); special access program information (SAP); or sensitive compartmented information (SCI).

    (v) Security officer is a U.S. citizen employee the entity designates to supervise and direct security measures implementing NISPOM (or equivalent; such as DOE Orders) requirements. Some CSAs refer to this position as a facility security officer (FSO). The security officer must complete security training specified by the responsible CSA, and must have and maintain an employee eligibility determination level that is at least the same level as the entity's eligibility determination level.

    (w) Senior agency official for NISP (SAO for NISP) is the official an agency head designates to direct and administer the agency's National Industrial Security Program.

    (x) Senior management official (SMO) is the person in charge of an entity. Under the CCIPP, this is the authorized executive official with authority to sign the security agreement with DHS.

    (y) Sub-entity is an entity's branch or division, another type of sub-element, a sub-contractor, subsidiary, or other subordinate or connected entity. Sub-entities fall under the definition of “entity,” but this part refers to them as sub-entities when necessary to distinguish such entities from prime contractor or parent entities. See definition of “entity” at § 2004.4(k) for more context.

    § 2004.10 Responsibilities of the Director, Information Security Oversight Office (ISOO).

    The Director, ISOO:

    (a) Implements E.O. 12829, including ensuring that:

    (1) The NISP operates as a single, integrated program across the executive branch of the Federal Government (i.e., such that agencies that release classified information to entities adhere to NISP principles);

    (2) A responsible CSA oversees each entity's NISP implementation in accordance with § 2004.22;

    (3) All agencies that contract for classified work include the Security Requirements clause, 48 CFR 52.204-2, from the Federal Acquisition Regulation (FAR), or an equivalent clause, in contracts that require access to classified information;

    (4) Those agencies for which the Department of Defense (DoD) serves as the CSA or provides industrial security services have agreements with DoD defining the Secretary of Defense's responsibilities on behalf of their agency;

    (5) Each CSA issues directions to entities under their cognizance that are consistent with the NISPOM insider threat guidance;

    (6) CSAs share with each other, as lawful and appropriate, relevant information about entity employees that indicates an insider threat; and

    (7) CSAs conduct ongoing analysis and adjudication of adverse or relevant information about entity employees that indicates an insider threat.

    (b) Raises an issue to the National Security Council (NSC) for resolution if the EA's NISPOM coordination process cannot reach a consensus on NISPOM security standards (see § 2004.20(d)).

    § 2004.11 CSA and agency implementing regulations, internal rules, or guidelines.

    (a) Each CSA implements NISP practices in part through policies and guidelines that are consistent with this part, so that agencies for which it serves as the CSA are aware of appropriate security standards, engage in consistent practices with entities, and so that practices effectively protect classified information those entities receive (including foreign government information that the U.S. Government must protect in the interest of national security).

    (b) Each CSA must also routinely review and update its NISP policies and guidelines and promptly issue revisions when needed (including when a change in national policy necessitates a change in agency NISP policies and guidelines).

    (c) Non-CSA agencies may choose to augment CSA NISP policies or guidelines as long as the agency policies or guidelines are consistent with the CSA's policies or guidelines and this part.

    § 2004.12 ISOO review of agency NISP implementation.

    (a) ISOO fulfills its oversight role based, in part, on information received from NISP Policy Advisory Committee (NISPPAC) members, from on-site reviews that ISOO conducts under the authority of E.O. 12829, and from any submitted complaints and suggestions. ISOO reports findings to the responsible CSA or agency.

    (b) ISOO reviews agency policies and guidelines to ensure consistency with NISP policies and procedures. ISOO may conduct reviews during routine oversight visits, when a problem or potential problem comes to ISOO's attention, or after a change in national policy that impacts agency policies and guidelines. ISOO provides the responsible agency with findings from these reviews.

    Subpart B—Administration
    § 2004.20 National Industrial Security Program Executive Agent and Operating Manual (NISPOM).

    (a) The executive agent (EA) for NISP is the Secretary of Defense. The EA:

    (1) Provides industrial security services for agencies that are not CSAs but that release classified information to entities. The EA provides industrial security services only through an agreement with the agency. Non-CSA agencies must enter an agreement with the EA and comply with EA industrial security service processes before releasing classified information to an entity;

    (2) Provides services for other CSAs by agreement; and

    (3) Issues and maintains the National Industrial Security Program Operating Manual (NISPOM) in consultation with all affected agencies and with the concurrence of the other CSAs.

    (b) The NISPOM sets out the procedures and standards that entities must follow during all phases of the contracting process to safeguard any classified information an agency releases to an entity. The NISPOM requirements may apply to the entity directly (i.e., through FAR clauses or other contract clauses referring entities to the NISPOM) or through equivalent contract clauses or requirements documents that are consistent with NISPOM requirements.

    (c) The EA, in consultation with all affected agencies and with the concurrence of the other CSAs, develops the requirements, restrictions, and safeguards contained in the NISPOM. The EA uses security standards applicable to agencies as the basis for developing NISPOM entity standards to the extent practicable and reasonable.

    (d) The EA also facilitates the NISPOM coordination process, which addresses issues raised by entities, agencies, ISOO, or the NISPPAC, including requests to create or change NISPOM security standards.

    § 2004.22 Agency responsibilities.

    (a) Agency categories and general areas of responsibility. (1) Federal agencies fall into two categories for the purpose of NISP responsibilities:

    (i) CSAs. CSAs are responsible for carrying out NISP implementation within their agency, for providing NISP industrial security services on behalf of non-CSA agencies by agreement when authorized, and for overseeing NISP compliance by entities that access classified information under the CSA's cognizance. When the CSA has oversight responsibilities for a particular non-CSA agency or for an entity, the CSA also functions as the responsible CSA;

    (ii) Non-CSA agencies. Non-CSA agencies are responsible for entering agreements with a designated CSA for industrial security services, and are responsible for carrying out NISP implementation within their agency consistently with the agreement, the CSA's guidelines and procedures, and this part;

    (2) Agencies that are components of another agency. Component agencies do not have itemized responsibilities under this part and do not independently need to enter agreements with a CSA, but they follow, and may have responsibilities under, implementing guidelines and procedures established by their CSA or non-CSA agency, or both.

    (b) Responsible CSA role. (1) The responsible CSA is the CSA (or its delegated CSO) that provides NISP industrial security services on behalf of an agency, determines an entity's eligibility for access, and monitors and inspects an entity's NISP implementation.

    (2) In general, the goal is to have one responsible CSA for each agency and for each entity, to minimize the burdens that can result from complying with differing CSA procedures and requirements.

    (i) With regard to agencies, NISP accomplishes this goal by a combination of designated CSAs and agreements between agencies and CSAs.

    (ii) With regard to entities, CSAs strive to reduce the number of responsible CSAs for a given entity as much as possible. To this end, when more than one CSA releases classified information to a given entity, those CSAs agree on which is the responsible CSA. However, due to certain unique agency authorities, there may be circumstances in which a given entity is under the oversight of more than one responsible CSA.

    (3) Responsible CSA for agencies. (i) In general, each CSA serves as the responsible CSA for classified information that it (or any of its component agencies) releases to entities, unless it enters an agreement otherwise with another CSA.

    (ii) DoD serves as the responsible CSA for DHS with the exception of the CCIPP, based on an agreement between the two CSAs.

    (iii) DoD serves as the responsible CSA on behalf of all non-CSA agencies, except CSA components, based on E.O. 12829 and its role as NISP EA.

    (iv) ODNI serves as the responsible CSA for CIA.

    (4) Responsible CSA for entities. When determining the responsible CSA for a given entity, the involved CSAs consider, at a minimum: Retained authorities, the information's classification level, number of classified contracts, location, number of Government customers, volume of classified activity, safeguarding requirements, responsibility for entity employee eligibility determinations, and any special requirements.

    (5) Responsible CSAs may delegate oversight responsibility to a cognizant security office (CSO) through CSA policy or by written delegation. The CSA must inform entities under its cognizance if it delegates responsibilities. For purposes of this rule, the term CSA also refers to the CSO.

    (c) CSA responsibilities. (1) The CSA may perform GCA responsibilities as its own GCA.

    (2) As CSA, the CSA performs or delegates the following responsibilities:

    (i) Designates a CSA senior agency official (SAO) for NISP;

    (ii) Identifies the insider threat senior official (SO) to the Director, ISOO;

    (iii) Shares insider threat information with other CSAs, as lawful and appropriate, including information that indicates an insider threat about entity employees eligible to access classified information;

    (iv) Acts upon and shares—with security management, GCAs, insider threat program employees, and Government program and CI officials—any relevant entity-reported information about security or CI concerns, as appropriate;

    (v) Submits reports to ISOO as required by this part; and

    (vi) Develops, coordinates, and provides concurrence on changes to the NISPOM when requested by the EA.

    (3) As a responsible CSA, the CSA also performs or delegates the following responsibilities:

    (i) Determines whether an entity is eligible for access to classified information (see § 2004.32);

    (ii) Allocates funds, ensures appropriate investigations are conducted, and determines entity employee eligibility for access to classified information (see § 2004.36);

    (iii) Reviews and approves entity safeguarding measures, including making safeguarding capability determinations (see § 2004.38);

    (iv) Conducts periodic security reviews of entity operations (see § 2004.26) to determine that entities: Effectively protect classified information provided to them; and follow NISPOM (or equivalent) requirements;

    (v) Provides and regularly updates guidance, training, training materials, and briefings to entities on:

    (A) Entity implementation of NISPOM (or equivalent) requirements, including: Responsibility for protecting classified information, requesting NISPOM interpretations, establishing training programs, and submitting required reports;

    (B) Initial security briefings and other briefings required for special categories of information;

    (C) Authorization measures for information systems processing classified information (except DHS) (see § 2004.40);

    (D) Security training for security officers (or CCIPP POCs) and other employees whose official duties include performing NISP-related functions;

    (E) Insider threat programs in accordance with the National Insider Threat Policy and Minimum Standards; and

    (F) Other guidance and training as appropriate;

    (vi) Establishes a mechanism for entities to submit requests for waivers to NISPOM (or equivalent) provisions;

    (vii) Reviews, continuously analyzes, and adjudicates, as appropriate, reports from entities regarding events that:

    (A) Impact the status of the entity's eligibility for access to classisfied information;

    (B) Impact an employee's eligibility for access;

    (C) May indicate an employee poses an insider threat;

    (D) Affect proper safeguarding of classified information; or

    (E) Indicate that classified information has been lost or compromised.

    (viii) Verifies that reports offered in confidence and so marked by an entity may be withheld from public disclosure under applicable exemptions of the Freedom of Information Act (5 U.S.C. 552).

    (ix) Requests any additional information needed from an entity about involved employees to determine continued eligibility for access to classified information when the entity reports loss, possible compromise, or unauthorized disclosure of classified information; and

    (x) Posts hotline information on its Web site for entity access, or otherwise disseminates contact numbers to the entities for which the CSA is responsible.

    (d) Non-CSA agency head responsibilities. The head of a non-CSA agency that is not a CSA component and that releases classified information to entities, performs the following responsibilities:

    (1) Designates an SAO for the NISP;

    (2) Identifies the SO for insider threat to ISOO to facilitate information sharing;

    (3) Enters into an agreement with the EA (except agencies that are components of another agency or a cross-agency oversight office) to act as the responsible CSA on the agency's behalf (see paragraph (a)(1)(ii) of this section);

    (4) Performs, or delegates in writing to a GCA, the following responsibilities:

    (i) Provides appropriate education and training to agency personnel who implement the NISP;

    (ii) Includes FAR security requirements clause 52.204-2, or equivalent (such as the DEAR clause 952.204-2), and a contract security classification specification into contracts and solicitations that require access to classified information (see § 2004.30); and

    (iii) Reports to the appropriate CSA adverse information and insider threat activity pertaining to entity employees having access to classified information.

    § 2004.24 Insider threat program.

    (a) Responsible CSAs oversee and analyze entity activity to ensure entities implement an insider threat program in accordance with the National Insider Threat Policy and Minimum Standards (via requirements in the NISPOM or its equivalent) and guidance from the CSA, to include:

    (1) Verifying that entities appoint SOs for insider threat;

    (2) Requiring entities to monitor, report, and review insider threat program activities and response actions in accordance with the provisions set forth in the NISPOM (or equivalent);

    (3) Providing entities with access to data relevant to insider threat program activities and applicable reporting requirements and procedures;

    (4) Providing entities with a designated means to report insider threat-related activity; and

    (5) Advising entities on appropriate insider threat training for authorized entity employees.

    (b) CSAs share with other CSAs any insider threat information reported to them by entities, as lawful and appropriate.

    § 2004.26 Reviews of entity NISP implementation.

    (a) The responsible CSA conducts recurring oversight reviews of entities' NISP security programs to verify that the entity is protecting classified information and is implementing the provisions of the NISPOM (or equivalent). The CSA determines the scope and frequency of reviews. The CSA generally notifies entities when a review will take place, but may also conduct unannounced reviews at its discretion.

    (b) CSAs make every effort to avoid unnecessarily intruding into entity employee personal effects during the reviews.

    (c) A CSA may, on entity premises, physically examine the interior spaces of containers not authorized to store classified information in the presence of the entity's representative.

    (d) As part of a security review, the CSA:

    (1) Verifies that the entity limits entity employees with access to classified information to the minimum number necessary to perform on classified contracts.

    (2) Validates that the entity has not provided its employees unauthorized access to classified information;

    (3) Reviews the entity's self-inspection program and evaluates and records the entity's remedial actions; and

    (4) Verifies that the GCA approved any public release of information pertaining to a classified contract.

    (e) As a result of findings during the security review, the CSA may, as appropriate, notify:

    (1) GCAs if there are unfavorable results from the review; and

    (2) A prime entity if the CSA discovers unsatisfactory security conditions pertaining to a sub-entity.

    (f) The CSA maintains a record of reviews it conducts and the results. Based on review results, the responsible CSA determines whether an entity's eligibility for access to classified information may continue. See § 2004.32(g).

    § 2004.28 Cost reports.

    (a) Agencies must annually report to the Director, ISOO, on their NISP implementation costs for the previous year.

    (b) CSAs must annually collect information on NISP implementation costs incurred by entities under their cognizance and submit a report to the Director, ISOO.

    Subpart C—Operations
    § 2004.30 Security classification requirements and guidance.

    (a) Contract or agreement and solicition requirements. (1) The GCA must incorporate FAR clause 52.204-2, Security Requirements (or equivalent set of security requirements), into contracts or agreements and solicitations requiring access to classified information.

    (2) The GCA must also include a contract security classification specification (or equivalent guidance) with each contract or agreement and solicitation that requires access to classified information. The contract security classification specification (or equivalent guidance) must identify the specific elements of classified information involved in each phase of the contract or agreement life-cycle, such as:

    (i) Level of classification;

    (ii) Where the entity will access or store the classified information, and any requirements or limitations on transmitting classified information outside the entity;

    (iii) Any special accesses;

    (iv) Any classification guides or other guidance the entity needs to perform during that phase of the contract or agreement;

    (v) Any authorization to disclose information about the classified contract or agreement; and

    (vi) GCA personnel responsible for interpreting and applying the contract security specifications (or equivalent guidance).

    (3) The GCA revises the contract security classification specification (or equivalent guidance) throughout the contract or agreement life-cycle as security requirements change.

    (b) Guidance. Classification guidance is the exclusive responsibility of the GCA. The GCA prepares classification guidance in accordance with 32 CFR 2001.15, and provides appropriate security classification and declassification guidance to entities.

    (c) Requests for clarification and classification challenges. (1) The GCA responds to entity requests for clarification and classification challenges.

    (2) The responsible CSA assists entities to obtain appropriate classification guidance from the GCA, and to obtain a classification challenge response from the GCA.

    (d) Instructions upon contract or agreement termination. (1) The GCA provides instructions to the entity for returning or disposing of classified information upon contract or agreement termination or when an entity no longer has a legitimate need to retain or possess classified information.

    (2) The GCA also determines whether the entity may retain classified information for particular purposes after the contract or agreement terminates, and if so, provides written authorization to the entity along with any instructions or limitations (such as which information, for how long, etc).

    § 2004.32 Determining entity eligibility for access to classified information.

    (a) Eligibility determinations. (1) The responsible CSA determines whether an entity is eligible for access to classified information. An entity may not have access to classified information until the responsible CSA determines that it meets all the requirements in this section. In general, the entity must be eligible to access classified information at the appropriate level before the CSA may consider any of the entity's subsidiaries, sub-contractors, or other sub-entities for eligibility. However, when the subsidiary will perform all classified work, the CSA may instead exclude the parent entity from access to classified information rather than determining its eligibility. In either case, the CSA must consider all information relevant to assessing whether the entity's access poses an unacceptable risk to national security interests.

    (2) A favorable access eligibility determination is not the same as a safeguarding capability determination. Entities may access classified information with a favorable eligibility determination, but may possess classified information only if the CSA determines both access eligibility and safeguarding capability, based on the GCA's requirement in the contract security classification specification (or equivalent).

    (3) If an entity has an existing eligibility determination, a CSA will not duplicate eligibility determination processes performed by another CSA. If a CSA cannot acknowledge an entity eligibility determination to another CSA, that entity may be subject to duplicate processing.

    (4) Each CSA maintains a record of its entities' eligibility determinations (or critical infrastructure entity eligibility status under the CCIPP, for DHS) and responds to inquiries from GCAs or entities, as appropriate and to the extent authorized by law, regarding the eligibility status of entities under their cognizance.

    (b) Process. (1) The responsible CSA provides guidance to entities on the eligibility determination process and on how to maintain eligibility throughout the period of the agreement or as long as an entity continues to need access to classified information in connection with a legitimate U.S. or foreign government requirement.

    (2) The CSA coordinates with appropriate authorities to determine whether an entity meets the eligibility criteria in paragraph (e) of this section. This includes coordinating with appropriate U.S. Government regulatory authorities to determine entity compliance with laws and regulations.

    (3) An entity cannot apply for its own eligibility determination. A GCA or an eligible entity must sponsor the entity to the responsible CSA for an eligibility determination. The GCA or eligible entity may sponsor an entity at any point during the contracting or agreement life-cycle at which the entity must have access to classified information to participate (including the solicitation or competition phase). An entity with limited eligibility granted under paragraph (f) of this section may sponsor a sub-entity for a limited eligibility determination for the same contract, agreement, or circumstance so long as the sponsoring entity is not under FOCI (see § 2004.34(i)).

    (4) The GCA must include enough lead time in each phase of the acquisition or agreement cycle to accomplish all required security actions. Required security actions include any eligibility determination necessary for an entity to participate in that phase of the cycle. The GCA may award a contract or agreement before the CSA completes the entity eligibility determination. However, in such cases, the entity may not begin performance on portions of the contract or agreement that require access to classified information until the CSA makes a favorable entity eligibility determination.

    (5) When a CSA is unable to make an eligibility determination in sufficient time to qualify an entity to participate in the particular procurement action or phase that gave rise to the GCA request (this includes both solicitation and performance phases), the GCA may request that the CSA continue the determination process to qualify the entity for future classified work, provided that the processing delay was not due to the entity's lack of cooperation.

    (c) Coverage. (1) A favorable eligibility determination allows an entity to access classified information at the determined eligibility level, or lower.

    (2) The CSA must ensure that all entities needing access to classified information as part of a legitimate U.S. or foreign government requirement have or receive a favorable eligibility determination before accessing classified information. This includes both prime or parent entities and sub-entities, even in cases in which an entity intends to have the classified work performed only by sub-entities. A prime or parent entity must have a favorable eligibility determination at the same classification level or higher than its sub-entity(ies), unless the CSA determined that the parent entity could be effectively excluded from access (see paragraph (a)(1) of this section).

    (3) If a parent and sub-entity need to share classified information with each other, the CSA must validate that both the parent and the sub-entity have favorable eligibility determinations at the level required for the classified information prior to sharing the information.

    (d) DHS Classified Critical Infrastructure Protection Program (CCIPP). DHS shares classified cybersecurity information with certain employees of entities under the Classified Critical Infrastructure Protection Program (CCIPP). The CCIPP applies only to entities that do not need to store classified information, have no other contracts or agreements already requiring access to classified information, and are not already determined eligible for access to classified information. DHS establishes and implements procedures consistent with the NISP to determine CCIPP entity eligibility for access to classified information.

    (e) Eligibility criteria. An entity must meet the following requirements to be eligible to access classified information:

    (1) It must need to access classified information as part of a legitimate U.S. Government or foreign government requirement, and access must be consistent with U.S. national security interests as determined by the CSA;

    (2) It must be organized and existing under the laws of any of the 50 States, the District of Columbia, or an organized U.S. territory (Guam, Commonwealth of the Northern Mariana Island, Commonwealth of Puerto Rico, and the U.S. Virgin Islands); or an American Indian or Alaska native tribe formally acknowledged by the Assistant Secretary—Indian Affairs, of the U.S. Department of the Interior;

    (3) It must be located in the United States or its territorial areas;

    (4) It must have a record of compliance with pertinent laws, regulations, and contracts (or other relevant agreements).

    (5) Its KMOs must each have and maintain eligibility for access to classified information that is at least the same level as the entity eligibility level;

    (6) It and all of its KMOs must not be excluded by a Federal agency, contract review board, or other authorized official from participating in Federal contracts or agreements;

    (7) It must meet all requirements the CSA or the authorizing law, regulation, or Government-wide policy establishes for access to the type of classified information or program involved; and

    (8) If the CSA determines the entity is under foreign ownership, control, or influence (FOCI), the responsible CSA must:

    (i) Agree that sufficient security measures are in place to mitigate or negate risk to national security interests due to the FOCI (see § 2004.34);

    (ii) Determine that it is appropriate to grant eligibility for a single, narrowly defined purpose (see § 2004.34(i)); or

    (iii) Determine that the entity is not eligible to access classified information.

    (9) DoD and DOE cannot award a contract involving access to proscribed information to an entity effectively owned or controlled by a foreign government unless the Secretary of the agency first issues a waiver (see 10 U.S.C. 2536). A waiver is not required if the CSA determines the entity is eligible and it agrees to establish a voting trust agreement (VTA) or proxy agreement (PA) (see § 2004.34(f)) because both VTAs and PAs effectively negate foreign government control.

    (f) Limited entity eligibility determination. CSAs may choose to allow GCAs to request limited entity eligibility determinations (this is not the same as limited entity eligibility in situations involving FOCI when the FOCI is not mitigated or negated; for more information on limited entity eligibility in such FOCI cases, see § 2004.34(i)). If a CSA permits GCAs to request a limited entity eligibility determination, it must set out parameters within its implementing policies that are consistent with the requirements below:

    (1) The GCA, or an entity with limited eligibility, must first request a limited entity eligibility determination from the CSA for the relevant entity and provide justification for limiting eligibility in that case;

    (2) Limited entity eligibility is specific to the requesting GCA's classified information, and to a single, narrowly defined contract, agreement, or circumstance;

    (3) The entity must otherwise meet the requirements for entity eligibility set out in this part;

    (4) The CSA documents the requirements of each limited entity eligibility determination it makes, including the scope of, and any limitations on, access to classified information;

    (5) The CSA verifies limited entity eligibility determinations only to the requesting GCA or entity. In the case of multiple limited entity eligibility determinations for a single entity, the CSA verifies each one separately only to its requestor; and

    (6) CSAs administratively terminate the limited entity eligibility when there is no longer a need for access to the classified information for which the CSA approved the limited entity eligibility.

    (g) Terminating or revoking eligibility. (1) The responsible CSA terminates the entity's eligible status when the entity no longer has a need for access to classified information.

    (2) The responsible CSA revokes the entity's eligible status if the entity is unable or unwilling to protect classified information.

    (3) The CSA coordinates with the GCA(s) to take interim measures, as necessary, toward either termination or revocation.

    § 2004.34 Foreign ownership, control, or influence (FOCI).

    (a) FOCI determination. A U.S. entity is under foreign ownership, control, or influence (FOCI) when:

    (1) A foreign interest has the power to direct or decide matters affecting the entity's management or operations in a manner that could:

    (i) Result in unauthorized access to classified information; or

    (ii) Adversely affect performance of a classified contract or agreement; and

    (2) The foreign interest exercises that power:

    (i) Directly or indirectly;

    (ii) Through ownership of the U.S. entity's securities, by contractual arrangements, or other similar means;

    (iii) By the ability to control or influence the election or appointment of one or more members to the entity's governing board (e.g. board of directors, board of managers, board of trustees) or its equivalent; or

    (iv) Prospectively (i.e., is not currently exercising the power, but could).

    (b) CSA guidance. The CSA establishes guidance for entities on filling out and submitting a Standard Form (SF) 328, Certificate Pertaining to Foreign Interests (OMB Control No. 0704-0194), and on reporting changes in circumstances that might result in a determination that the entity is under FOCI or is no longer under FOCI. The CSA also advises entities on the Government appeal channels for disputing CSA FOCI determinations.

    (c) FOCI factors. To determine whether an entity is under FOCI, the CSA analyzes available information to determine the existence, nature, and source of FOCI. The CSA:

    (1) Considers information the entity or its parent provides on the SF 328 (OMB Control No. 0704-0194), and any other relevant information; and

    (2) Considers in the aggregate the following factors about the entity:

    (i) Record of espionage against U.S. targets, either economic or Government;

    (ii) Record of enforcement actions against the entity for transferring technology without authorization;

    (iii) Record of compliance with pertinent U.S. laws, regulations, and contracts or agreements;

    (iv) Type and sensitivity of the information the entity would access;

    (v) Source, nature, and extent of FOCI, including whether foreign interests hold a majority or minority position in the entity, taking into consideration the immediate, intermediate, and ultimate parent entities;

    (vi) Nature of any relevant bilateral and multilateral security and information exchange agreements;

    (vii) Ownership or control, in whole or in part, by a foreign government; and

    (viii) Any other factor that indicates or demonstrates foreign interest capability to control or influence the entity's operations or management.

    (d) Entity access while under FOCI. (1) If the CSA is determining whether an entity is eligible to access classified information and finds that the entity is under FOCI, the CSA must consider the entity ineligible for access to classified information. The CSA and the entity may then attempt to negotiate FOCI mitigation or negation measures sufficient to permit a favorable eligibility determination.

    (2) The CSA may not determine that the entity is eligible to access classified information until the entity has put into place appropriate security measures to negate or mitigate FOCI or is otherwise no longer under FOCI. If the degree of FOCI is such that no mitigation or negation efforts will be sufficient, or access to classified information would be inconsistent with national security interests, then the CSA will determine the entity ineligible for access to classified information.

    (3) If an entity comes under FOCI, the CSA may allow the existing eligibility status to continue while the CSA and the entity negotiate acceptable FOCI mitigation or negation measures, as long as there is no indication that classified information is at risk. If the entity does not actively negotiate mitigation or negation measures in good faith, or there are no appropriate measures that will remove the possibility of unauthorized access or adverse effect on the entity's performance of contracts or agreements involving classified information, the CSA will take steps, in coordination with the GCA, to terminate eligibility.

    (e) FOCI and entities under the CCIPP. DHS may sponsor, as part of the CCIPP, a U.S. entity that is under FOCI, under the following circumstances:

    (1) The Secretary of DHS proposes appropriate FOCI risk mitigation or negation measures (see paragraph (f) of this section) to the other CSAs and ensures the anticipated release of classified information:

    (i) Is authorized for release to the country involved;

    (ii) Does not include information classified under the Atomic Energy Act; and

    (iii) Does not impede or interfere with the entity's ability to manage and comply with regulatory requirements imposed by other Federal agencies, such as the State Department's International Traffic in Arms Regulation.

    (2) If the CSAs agree the mitigation or negation measures are sufficient, DHS may proceed to enter a CCIPP information sharing agreement with the entity. If one or more CSAs disagree, the Secretary of DHS may seek a decision from the Assistant to the President for National Security Affairs before entering a CCIPP information sharing agreement with the entity.

    (f) Mitigation or negation measures to address FOCI. (1) The CSA-approved mitigation or negation measures must assure that the entity can offset FOCI by effectively denying unauthorized people or entities access to classified information and preventing the foreign interest from adversely impacting the entity's performance on classified contracts or agreements.

    (2) Any mitigation or negation measures the CSA approves for an entity must not impede or interfere with the entity's ability to manage and comply with regulatory requirements imposed by other Federal agencies (such as Department of State's International Traffic in Arms Regulation).

    (3) If the CSA approves a FOCI mitigation or negation measure for an entity, it may agree that the measure, or particular portions of it, may apply to all of the present and future sub-entities within the entity's organization.

    (4) Mitigation or negation options are different for ownership versus control or influence; ownership necessitates a stronger mitigation or negation measure.

    (5) Methods to mitigate foreign control or influence (unrelated to ownership) may include:

    (i) Assigning specific oversight duties and responsibilities to independent board members;

    (ii) Formulating special executive-level security committees to consider and oversee matters that affect entity performance on classified contracts or agreements;

    (iii) Modifying or terminating loan agreements, contracts, agreements, and other understandings with foreign interests;

    (iv) Diversifying or reducing foreign-source income;

    (v) Demonstrating financial viability independent of foreign interests;

    (vi) Eliminating or resolving problem debt;

    (vii) Separating, physically or organizationally, the entity component performing on classified contracts or agreements;

    (viii) Adopting special board resolutions; and

    (ix) Other actions that effectively negate or mitigate foreign control or influence.

    (6) Methods to mitigate or negate foreign ownership include:

    (i) Board resolutions. The CSA and the entity may agree to a board resolution when a foreign interest does not own voting interests sufficient to elect, or is otherwise not entitled to representation on, the entity's governing board. The resolution must identify the foreign shareholders and their representatives (if any), note the extent of foreign ownership, certify that the foreign shareholders and their representatives will not require, will not have, and can be effectively excluded from, access to all classified information, and certify that the entity will not permit the foreign shareholders and their representatives to occupy positions that might enable them to influence the entity's policies and practices, affecting its performance on classified contracts or agreements.

    (ii) Security control agreements (SCAs). The CSA and the entity may agree to use an SCA when a foreign interest does not effectively own or control an entity (i.e., the entity is under U.S. control), but the foreign interest is entitled to representation on the entity's governing board. At least one cleared U.S. citizen must serve as an outside director on the entity's governing board.

    (iii) Special security agreements (SSAs). The CSA and the entity may agree to use an SSA when a foreign interest effectively owns or controls an entity. The SSA preserves the foreign owner's right to be represented on the entity's board or governing body with a direct voice in the entity's business management, while denying the foreign owner majority representation and unauthorized access to classified information. When a GCA requires an entity to have access to proscribed information, and the CSA proposes or approves an SSA as the mitigation measure, the GCA must also make a national interest determination (NID) before the CSA can determine an entity's eligibility for access. See paragraph (h) of this section for more information on NIDs.

    (iv) Voting trust agreements (VTAs) or proxy agreements (PAs). The CSA and the entity may agree to use one of these measures when a foreign interest effectively owns or controls an entity. The VTA and PA are substantially identical arrangements that vest the voting rights of the foreign-owned stock in cleared U.S. citizens approved by the CSA. Under the VTA, the foreign owner transfers legal title in the entity to the trustees approved by the CSA. Under the PA, the foreign owner conveys their voting rights to proxy holders approved by the CSA. The entity must be organized, structured, and financed to be capable of operating as a viable business entity independently from the foreign owner. Both VTAs and PAs can effectively negate foreign ownership and control; therefore, neither imposes any restrictions on the entity's eligibility to have access to classified information or to compete for classified contracts or agreements, including those involving proscribed information. Both VTAs and PAs can also effectively negate foreign government control.

    (v) Combinations of the above measures or other similar measures that effectively mitigate or negate the risks involved with foreign ownership.

    (g) Standards for FOCI mitigation or negation measures. The CSA must include the following requirements as part of any FOCI mitigation or negation measures, to ensure that entities implement necessary security and governing controls:

    (1) Annual certification and annual compliance reports by the entity's governing board and the KMOs;

    (2) The U.S. Government remedies in case the entity is not adequately protecting classified information or not adhering to the provisions of the mitigation or negation measure;

    (3) Supplements to FOCI mitigation or negation measures as the CSA deems necessary. In addition to the standard FOCI mitigation or negation measure's requirements, the CSA may require more procedures via a supplement, based upon the circumstances of an entity's operations. The CSA may place these requirements in supplements to the FOCI mitigation or negation measure to allow flexibility as circumstances change without having to renegotiate the entire measure. When making use of supplements, the CSA does not consider the FOCI mitigation measure final until it approves the required supplements (e.g., technology control plan, electronic communication plan); and

    (4) For agreements to mitigate or negate ownership (PAs, VTAs, SSAs, and SCAs), the following additional requirements apply:

    (i) FOCI oversight. The CSA verifies that the entity establishes an oversight body consisting of trustees, proxy holders or outside directors, as applicable, and those officers or directors whom the CSA determines are eligible for access to classified information (see § 2004.36). The entity's security officer is the principal advisor to the oversight body and attends their meetings. The oversight body:

    (A) Maintains policies and procedures to safeguard classified information in the entity's possession with no adverse impact on classified contract or agreement performance; and

    (B) Verifies the entity is complying with the FOCI mitigation or negation measure and related documents, contract security requirements or equivalent, and the NISP;

    (ii) Qualifications of trustees, proxy holders, and outside directors. The CSA determines eligibility for access to classified information for trustees, proxy holders, and outside directors at the classification level of the entity's eligibility determination. Trustees, proxy holders, and outside directors must meet the following criteria:

    (A) Be resident U.S. citizens who can exercise management prerogatives relating to their position in a way that ensures that the foreign owner can be effectively insulated from the entity or effectively separated from the entity's classified work; and

    (B) Be completely disinterested individuals with no prior involvement with the entity, the entities with which it is affiliated, or the foreign owner;

    (C) No other circumstances that may affect an individual's ability to serve effectively; such as, the number of boards on which the individual serves, the length of time serving on any other boards.

    (iii) Annual meeting. The CSA meets at least annually with the oversight body to review the purpose and effectiveness of the FOCI mitigation or negation agreement; establish a common understanding of the operating requirements and their implementation; and provide guidance on matters related to FOCI mitigation and industrial security. These meetings include a CSA review of:

    (A) Compliance with the approved FOCI mitigation or negation measure;

    (B) Problems regarding practical implementation of the mitigation or negation measure; and

    (C) Security controls, practices, or procedures and whether they warrant adjustment; and

    (iv) Annual certification. The CSA reviews the entity's annual report; addresses, and resolves issues identified in the report; and documents the results of this review and any follow-up actions.

    (h) National Interest Determination (NID). (1) Requirement for a NID. When a GCA requires an entity to have access to proscribed information, and the CSA proposes or approves an SSA as the FOCI mitigation measure, the GCA must determine (with controlling agency concurrence when appropriate) whether releasing the proscribed information to the entity under an SSA is consistent with the national security interests of the United States. This determination is called a national interest determination (NID). A favorable NID confirms that an entity's access to the proscribed information is consistent with such interests and allows the CSA to make a positive entity eligibility determination in such cases if the entity meets the other eligibility requirements. If the NID is not favorable, an entity may not have access to the proscribed information.

    (i) The CSA requests a NID from the GCA for new contracts or agreements at any phase that requires access to proscribed information; and existing contracts or agreements (or any relevant sub-contracts or sub-agreements) when the GCA adds a requirement for access to proscribed information or adds a new sub-entity that operates under an SSA and requires access to proscribed information. The GCA may initiate a NID prior to receiving the request from the CSA, when appropriate.

    (ii) While CSAs normally request NIDs on a case-by-case contract- or agreement-specific basis, the CSA, GCA, and applicable controlling agency may decide to make a NID on another basis, using criteria the CSA establishes. In such cases, the GCA provides the CSA with a written statement that the NID covers a specific contract or program and all follow-on contracts associated that program, and lists all contracts or agreements covered by the NID in cases in which the GCA can identify them.

    (iii) When an entity has a favorable NID for a given contract or agreement, the CSA does not have to request a new NID for the same entity when the access requirements for proscribed information and terms remain unchanged for:

    (A) Renewal of the contract or agreement;

    (B) New task orders issued under the contract or agreement;

    (C) A new contract or agreement that contains the same provisions as the previous (this usually applies when the contract or agreement is for a program or project); or

    (D) Renewal of the SSA.

    (2) Process. (i) The CSA requests the NID from the GCA and provides the GCA with pertinent information, such as: The FOCI assessment; a copy of the SSA; and any other relevant information that might help the GCA make its determination.

    (ii) If another agency (or agencies) controls any category of the proscribed information involved, the GCA or CSA also coordinates with the controlling agency(ies) to request their concurrence on the GCA's NID. In cases involving one or more controlling agencies, a favorable NID is not final until the relevant controlling agencies concur with the determination in writing for the proscribed information under their control. The GCA or CSA provides the relevant controlling agency(ies) with: A statement that “Access to the proscribed information by the entity is consistent with the national security interests of the United States”; the FOCI assessment; a copy of the SSA; a contract security classification specification (or equivalent); justification for access and a description of the proscribed information involved; and any other relevant information that might help the controlling agency consider the request.

    (iii) In cases in which the GCA has authority over all the categories of proscribed information involved, the CSA may make an entity eligibility determination or upgrade an existing eligibility level to top secret only after the GCA notifies the CSA in writing of a favorable NID, except as described in paragraph (h)(3)(iii)(A) of this section.

    (iv) In cases in which the GCA requests concurrence from one or more controlling agencies, it does not notify the CSA of its NID until the controlling agency concurs. In cases in which the CSA requests concurrence from the controlling agency, the CSA may not act upon a favorable GCA NID until it also receives written concurrence from the controlling agency(ies). In both cases, the CSA may not make an eligibility determination until all the relevant controlling agencies concur in writing on a favorable NID and the GCA notifies the CSA in writing of its final NID, except as described in paragraph (h)(3)(iii)(B) of this section.

    (3) Timing. (i) When the GCA has authority over all of the categories of proscribed information involved, the GCA provides a final, written NID to the CSA, with a copy to the entity, within 30 days after the GCA receives the NID request.

    (ii) If a controlling agency controls any of the involved categories of proscribed information, the GCA provides a final, written NID to the CSA, with a copy to the entity, within 60 days after the GCA receives the NID request.

    (A) In such cases, the GCA notifies the relevant controlling agency(ies) of its NID in writing within 30 days after it receives the NID request, and each controlling agency concurs or non-concurs in writing to the GCA or CSA within the next 30 days unless there are extenuating circumstances.

    (B) In cases in which there are extenuating circumstances, the controlling agency responds to the GCA or CSA within 30 days to explain the extenuating circumstances, request additional information as needed, and coordinate a plan and timeline for completion.

    (iii) If the GCA cannot make the NID within the 30- or 60-day timeframes in paragraphs (h)(3)(i) and (h)(3)(ii) of this section, the GCA must notify the CSA in writing and explain the extenuating circumstances causing the delay. The GCA must provide written updates to the CSA, or its designee, every 30 days until it makes the determination. In turn, the CSA provides the entity with updates every 30 days.

    (A) When the GCA has authority over all the categories of the proscribed information involved, if the GCA does not provide the CSA with a NID within 30 days, the CSA does not have to delay any longer to make the entity eligibility determination or upgrade it to top secret and implement an SSA to wait for the NID, as long as the GCA does not indicate that the NID might be negative. However, the entity must not have access to proscribed information under a new contract until the GCA makes a favorable NID.

    (B) In some cases in which one or more controlling agencies have authority over any category of the proscribed information involved, the GCA or CSA might receive concurrence on a favorable NID from some of the controlling agencies within 60 days, but not others. In such cases, the CSA may proceed with an eligibility determination or upgrade it to top secret eligibility and implement an SSA, but only for those categories of proscribed information for which a controlling agency has concurred. The entity must not have access to any category of proscribed information for which a controlling agency that has not yet concurred.

    (iv) Unless cancelled sooner by the GCA that made the NID, a NID remains in effect for the duration of the contract or agreement. When a NID is not contract- or agreement-specific, the CSA, the GCA, and any applicable controlling agency determine how long the NID remains in effect based on the criteria used to make the NID.

    (i) Limited eligibility determinations (for entities under FOCI without mitigation or negation). (1) In exceptional circumstances when an entity is under FOCI, the CSA may decide that limited eligibility for access to classified information is appropriate when the entity is unable or unwilling to implement FOCI mitigation or negation measures (this is not the same as limited eligibility in other circumstances; for more information on limited eligibility in other cases, see § 2004.32(f)).

    (2) The GCA first decides whether to request a limited eligibility determination for the entity and must articulate a compelling need for it that is in accordance with U.S. national security interests. The GCA must verify that access to classified information is essential to contract or agreement performance, and accept the risk inherent in not mitigating or negating the FOCI.

    (3) The CSA may grant a limited eligibility determination if the GCA requests and the entity meets all other eligibility criteria in § 2004.32(e).

    (4) A foreign government may sponsor a U.S. sub-entity of a foreign entity for limited eligibility when the foreign government desires to award a contract or agreement to the U.S. sub-entity that involves access to classified information for which the foreign government is the original classification authority (i.e., foreign government information), and there is no other need for the U.S. sub-entity to have access to classified information.

    (5) Limited eligibility determinations are specific to the classified information of the requesting GCA or foreign government, and specific to a single, narrowly defined contract, agreement, or circumstance of that GCA or foreign government.

    (6) The access limitations of a favorable limited eligibility determination apply to all of the entity's employees, regardless of citizenship.

    (7) A limited eligibility determination is not an option for entities that require access to proscribed information when a foreign government has ownership or control over the entity. See § 2004.32(e)(9).

    (8) The CSA administratively terminates the entity's limited eligibility when there is no longer a need for access to the classified information for which the CSA made the favorable limited eligibility determination. Terminating one limited eligibility status does not impact other ones the entity may have.

    § 2004.36 Determining entity employee eligibility for access to classified information.

    (a) Making employee eligibility determinations. (1) The responsible CSA:

    (i) Determines whether entity employees meet the criteria established in the Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information issued by White House memorandum, December 29, 2005, and in accordance with applicable executive branch procedures. Entity employees must have a legitimate requirement (i.e., need to know) for access to classified information in the performance of assigned duties and eligibility must be clearly consistent with the interest of the national security.

    (ii) Notifies entities of its determinations of employee eligibility for access to classified information.

    (iii) Terminates eligibility status when there is no longer a need for access to classified information by entity employees.

    (2) The responsible CSA maintains:

    (i) SF 312s, Classified Information Nondisclosure Agreements, or other approved nondisclosure agreements, executed by entity employees, as prescribed by ODNI in accordance with 32 CFR 2001.80 and E.O. 13526; and

    (ii) Records of its entity employee eligibility determinations, suspensions, and revocations.

    (3) CSAs ensure that entities limit the number of employees with access to classified information to the minimum number necessary to work on classified contracts or agreements.

    (4) The CSA determines the need for event-driven reinvestigations for entity employees.

    (5) CSAs use the Federal Investigative Standards (FIS) issued jointly by the Suitability and Security Executive Agents.

    (6) The CSA provides guidance to entities on:

    (i) Requesting employee eligibility determinations, to include guidance for submitting fingerprints; and

    (ii) Granting employee access to classified information when the employee has had a break in access or a break in employment.

    (7) If the CSA receives adverse information about an eligible entity employee, the CSA should consider and possibly investigate to determine whether the employee's eligibility to access classified information remains clearly consistent with the interests of national security. If the CSA determines that an entity employee's continued eligibility is not in the interest of national security, the CSA implements procedures leading to suspension and ultimate revocation of the employee's eligible status, and notifies the entity.

    (b) Consultants. A consultant is an individual under contract or agreement to provide professional or technical assistance to an entity in a capacity requiring access to classified information. A consultant is considered an entity employee for security purposes. The CSA makes eligibility determinations for entity consultants in the same way it does for entity employees.

    (c) Reciprocity. The responsible CSA determines if an entity employee was previously investigated or determined eligible by another CSA. CSAs reciprocally accept existing employee eligibility determinations in accordance with applicable and current national level personnel security policy, and do not duplicate employee eligibility investigations conducted by another CSA.

    (d) Limited access authorization (LAA). (1) CSAs may make LAA determinations for non-U.S. citizen entity employees in rare circumstances, when:

    (i) A non-U.S. citizen employee possesses unique or unusual skill or expertise that the agency urgently needs to support a specific U.S. Government contract or agreement; and

    (ii) A U.S. citizen with those skills is not available.

    (2) A CSA may grant LAAs up to the secret classified level.

    (3) CSAs may not use LAAs for access to:

    (i) Top secret (TS) information;

    (ii) RD or FRD information;

    (iii) Information that a Government-designated disclosure authority has not determined releasable to the country of which the individual is a citizen;

    (iv) COMSEC information;

    (v) Intelligence information, to include SCI;

    (vi) NATO information, except as follows: Foreign nationals of a NATO member nation may be authorized access to NATO information subject to the terms of the contract, if the responsible CSA obtains a NATO security clearance certificate from the individual's country of citizenship. NATO access is limited to performance on a specific NATO contract;

    (vii) Information for which the U.S. Government has prohibited foreign disclosure in whole or in part; or

    (viii) Information provided to the U.S. Government by another government that is classified or provided in confidence.

    (4) The responsible CSA provides specific procedures to entities for requesting LAAs. The GCA must concur on an entity's LAA request before the CSA may grant it.

    § 2004.38 Safeguarding and marking.

    (a) Safeguarding approval. (1) The CSA determines whether an entity's safeguarding capability meets requirements established in 32 CFR 2001, and other applicable national level policy (e.g., Atomic Energy Act for RD). If the CSA makes a favorable determination, the entity may store classified information at that level or below. If the determination is not favorable, the CSA must ensure that the entity does not possess classified information or does not possess information at a level higher than the approved safeguarding level.

    (2) The CSA maintains records of its safeguarding capability determinations and, upon request from GCAs or entities, and as appropriate and to the extent authorized by law, verifies that it has made a favorable safeguarding determination for a given entity and at what level.

    (b) Marking. The GCA provides guidance to entities that meets requirements in 32 CFR 2001.22, 2001.23, 2001.24, and 2001.25, Derivative classification, Classification marking in the electronic environment, Additional requirements, and Declassification markings; ISOO's marking guide, Marking Classified National Security Information; and other applicable national level policy (e.g., Atomic Energy Act for RD) for marking classified information and material.

    § 2004.40 Information system security.

    (a) The responsible CSA must authorize an entity information system before the entity can use it to process classified information. The CSA must use the most complete, accurate, and trustworthy information to make a timely, credible, and risk-based decision whether to authorize an entity's system.

    (b) The responsible CSA issues to entities guidance that establishes protection measures for entity information systems that process classified information. The responsible CSA must base the guidance on standards applicable to Federal systems, which must include the Federal Information Security Modernization Act of 2014 (FISMA), Public Law 113-283, and may include National Institute of Standards and Technology (NIST) publications, Committee on National Security Systems (CNSS) publications, and Federal information processing standards (FIPS).

    § 2004.42 International programs security. [Reserved] Appendix A to Part 2004—Acronym Table

    For details on many of these terms, see the definitions at § 2004.4.

    CCIPP—Classified Critical Infrastructure Protection Program CCIPP POC—Entity point of contact under the CCIPP program CIA—Central Intelligence Agency CSA—Cognizant security agency CNSS—Committee on National Security Systems COMSEC—Communications security CSO—Cognizant security office DHS—Department of Homeland Security DoD—Department of Defense DOE—Department of Energy EA—Executive agent (the NISP executive agent is DoD) E.O.—Executive Order FAR—Federal Aquisition Regulation FOCI—Foreign ownership, control, or influence GCA—Government contracting activity Insider threat SO—insider threat senior official (for an agency or for an entity) ISOO—Information Security Oversight Office of the National Archives and Records Administration (NARA) KMO—Key managers and officials (of an entity) LAA—Limited access authorization NID—National interest determination NISPOM—National Industrial Security Program Operating Manual NRC—Nuclear Regulatory Commission NSA—National Security Agency ODNI—Office of the Director of National Intelligence PA—Proxy agreement RD—Restricted data SF—Standard Form SAO—Senior agency official for NISP SAP—Special access program SCA—Security control agreement SCI—Sensitive compartmented information SSA—Special security agreement TS—Top secret (classification level) VT—Voting trust Dated: January 3, 2017. David S. Ferriero, Archivist of the United States.
    [FR Doc. 2017-00152 Filed 1-10-17; 8:45 am] BILLING CODE 7515-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0238; FRL-9957-87-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Nitrogen Oxide Emissions from Coal-Fired Electric Generating Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. This SIP submittal consists of a regulation for inclusion in the Maryland SIP which regulates nitrogen oxides (NOX) emissions from seven coal-fired electric generating units (EGU) in the State. This action is being taken under the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before February 10, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0238 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Marilyn Powers, (215) 814-2308 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On November 20, 2015, the State of Maryland, through the Maryland Department of the Environment (MDE), submitted a revision to its SIP seeking to include regulation COMAR 26.11.38.01—.05—Control of NOX Emissions from Coal-Fired Electric Generating Units, in the Maryland SIP. On September 8, 2016, MDE provided a letter to EPA to clarify that this regulation was submitted as a SIP strengthening measure, and not as a submission to address reasonably available control technology (RACT) for coal-fired EGUs.1

    1 Subsequent to MDE's submission of this SIP revision to EPA, the State finalized several changes to COMAR 26.11.38 that were effective on December 10, 2015. This subsequent MDE action modified sections .01, recodified sections .04 and .05 to sections .05 and .06, respectively, and added new sections .04 and .07. These changes to COMAR 26.11.38 have not yet been submitted to EPA for incorporation in the Maryland SIP. EPA is proposing approval of sections .01 through .05 of COMAR 26.11.38 as submitted by MDE on November 20, 2015, which had a state effective date of August 31, 2015.

    I. Background

    On March 12, 2008, EPA strengthened the national ambient air quality standards (NAAQS) for ground level ozone, setting both the primary and secondary standards to a level of 0.075 parts per million (ppm) or 75 parts per billion (ppb) averaged over an 8-hour period (2008 ozone NAAQS). On May 21, 2012 (77 FR 30088), EPA designated areas that were not attaining the 2008 ozone NAAQS as nonattainment, including the following three areas or portions of areas in Maryland: Cecil County (part of the Philadelphia-Wilmington-Atlantic City Nonattainment Area); Calvert, Charles, Frederick, Montgomery, and Prince Georges Counties (part of the Washington, DC-MD-VA Nonattainment Area); and Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties and the City of Baltimore (the Baltimore Nonattainment Area). The Philadelphia-Wilmington-Atlantic City Area and Washington, DC-MD-VA Area were classified as marginal nonattainment areas, and the Baltimore Area was classified as a moderate nonattainment area for the 2008 ozone NAAQS.

    II. Summary of SIP Revision and EPA Analysis

    On November 20, 2015, MDE submitted a regulation as a SIP revision for EPA approval and incorporation into the Maryland SIP. The revision consists of Maryland regulation COMAR 26.11.38—Control of NOX Emissions from Coal-Fired Electric Generating Units. The regulation, effective in August 2015, establishes NOX emission standards and additional monitoring and reporting requirements for coal-fired EGUs.

    COMAR 26.11.38 defines the affected units for the regulation as Brandon Shores Units 1 and 2, C.P. Crane Units 1 and 2, Chalk Point Units 1 and 2, Dickerson Units 1, 2, and 3, H.A. Wagner Units 2 and 3, Morgantown Units 1 and 2, and Warrior Run. The regulation requires an affected EGU to minimize NOX emissions by operating and optimizing the use of all installed pollution controls and combustion controls during all times that the unit is in operation while burning coal. For demonstrating compliance with this requirement, the owner or operator is required to submit a plan to MDE and EPA for approval that summarizes the data to be collected to show that each affected EGU is operating its installed controls.

    The regulation establishes a system-wide emissions rate of 0.15 pounds per million British thermal units (lbs/mmBtu) on a 30-day rolling average for coal-burning EGUs during the ozone season.2 System-wide emissions are an aggregation of NOX emissions from all coal-fired EGUs owned, operated, or controlled by the same company. Continuous emissions monitoring (CEM) systems already installed on these units as a requirement of previous federal and state programs, will be used to track system-wide emissions and to determine compliance with the 30-day rolling average emissions limit. See COMAR 26.11.38.05. The 0.15 lb/mmBtu emission rate does not apply to C.P. Crane and AES Warrior Run, as they are not a part of a system.

    2 The limit does not apply to an EGU located at a facility that is solely owned, operated, or controlled. AES Warrior Run is subject to a limit of 0.10 lb/mmBtu and Charles P. Crane is subject to the 24-hour block average rates which trigger reporting requirements.

    To demonstrate compliance with the requirement to optimize controls, MDE established 24-hour block emissions levels for each coal-burning EGU based on historical emissions data. Id. During the ozone season, EGU owners are required to provide a daily report for any unit that exceeds its 24-hour emissions level. The report requires specific operating data and an explanation of any exceedances of the 24-hour level. A detailed discussion of the requirements of regulation COMAR 26.11.38 may be found in the EPA technical support document (TSD) prepared in support of this proposed rulemaking, which is available in the docket for this rulemaking action and online at www.regulations.gov.

    The 14 affected units at the seven plants that are subject to COMAR 26.11.38 have all installed controls as a result of programs requiring NOX reductions by previous regulatory requirements such as the NOX SIP Call (65 FR 57356, October 27, 1998), the Clean Air Interstate Rule (CAIR) (70 FR 25162, May 12, 2005), the Cross State Air Pollution Rule (CSAPR) (76 FR 48208, August 8, 2011), and Maryland's Healthy Air Act (HAA). All of the affected units have either selective catalytic reduction (SCR), selective non-catalytic reduction (SNCR), or selective alternative catalytic reduction (SACR).

    EPA finds that the submittal strengthens the Maryland SIP. COMAR 26.11.38 imposes NOX emissions limits on units subject to the regulation which are expected to lower NOX emissions within the State. The NOX emissions limits plus the operation and optimization of the existing NOX controls whenever the units are in operation will help Maryland's attainment and maintenance of the 2008 ozone NAAQS. EPA's detailed analysis of the Maryland submittal can be found in the TSD developed in support of this proposed rulemaking action, and can be found in the docket for this rulemaking action and at www.regulations.gov.

    III. Proposed Action

    EPA is proposing to approve the November 20, 2015 Maryland SIP submittal which seeks to include regulation COMAR 26.11.38, Control of Nitrogen Oxides Emissions from Coal-Fired Electric Generating Units, in the Maryland SIP as a SIP strengthening measure in accordance with CAA section 110. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

    IV. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Maryland regulation COMAR 26.11.28—Control of Nitrogen Oxides Emissions from Coal-Fired Electric Generating Units. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    In addition, this action proposing to approve Maryland's regulation to control NOX emissions from coal-fired electric generating units does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: December 16, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2017-00309 Filed 1-10-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R04-OAR-2012-0773; FRL-9957-92-Region 4] Air Plan Approval and Air Quality Designation; KY; Redesignation of the Kentucky Portion of the Louisville 1997 Annual PM2.5 Nonattainment Area to Attainment AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    On March 5, 2012, the Commonwealth of Kentucky, through the Kentucky Energy and Environment Cabinet, Division for Air Quality (DAQ), submitted a request for the Environmental Protection Agency (EPA) to redesignate the portion of Kentucky that is within the bi-state Louisville, KY-IN fine particulate matter (PM2.5) nonattainment area (hereafter referred to as the “bi-state Louisville Area” or “Area”) to attainment for the 1997 Annual PM2.5 national ambient air quality standards (NAAQS) and to approve a state implementation plan (SIP) revision containing a maintenance plan for the Area. EPA is proposing to approve the Commonwealth's plan for maintaining the 1997 Annual PM2.5 NAAQS in the Area, including the motor vehicle emission budgets (MVEBs) for nitrogen oxide (NOX) and PM2.5 for the years 2015 and 2025 for the bi-state Louisville Area, and incorporate it into the SIP, and to redesignate the Kentucky portion of the Area to attainment for the 1997 Annual PM2.5 NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the bi-state Louisville Area.

    DATES:

    Comments must be received on or before February 10, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2012-0773 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Madolyn Sanchez of the Air Regulatory Management Section, in the Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Madolyn Sanchez may be reached by phone at (404) 562-9644, or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. What are the actions EPA is proposing to take? II. What is the background for EPA's proposed actions? III. What are the criteria for redesignation? IV. Why is EPA proposing these actions? V. What is EPA's analysis of the request? VI. What is the effect of the January 4, 2013, D.C. Circuit decision regarding PM2.5 implementation under Subpart 4? VII. What is EPA's analysis of the proposed NOX and PM2.5 MVEBs for the bi-state Louisville area? VIII. What is the status of EPA's adequacy determination for the proposed NOX and PM2.5 MVEBs for 2015 and 2025 for the bi-state Louisville area? IX. What is the effect of EPA's proposed actions? X. Proposed Actions XI. Statutory and Executive Order Reviews I. What are the actions EPA is proposing to take?

    EPA is proposing to take the following two separate but related actions: (1) To approve Kentucky's plan for maintaining the 1997 Annual PM2.5 NAAQS (maintenance plan), including the associated MVEBs for the bi-state Louisville Area, and incorporate it into the Kentucky SIP, and (2) to redesignate the Kentucky portion of the bi-state Louisville Area to attainment for the 1997 Annual PM2.5 NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the bi-state Louisville Area. The bi-state Louisville Area consists of Bullitt and Jefferson Counties in Kentucky as well as Clark and Floyd Counties and a portion of Jefferson County (Madison Township) in Indiana.1 These proposed actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.

    1 In a separate submittal, EPA received the redesignation request and maintenance plan for the Indiana portion of this Area. On September 9, 2016, EPA took final action to determine that the entire bi-state Louisville Area has attained the 1997 PM2.5 standard and to approve Indiana's redesignation request and maintenance plan. See 81 FR 62390.

    EPA is proposing to approve Kentucky's maintenance plan for its portion of the bi-state Louisville Area as meeting the requirements of section 175A (such approval being one of the Clean Air Act (CAA or Act) criteria for redesignation to attainment status). The maintenance plan is designed to help keep the bi-state Louisville Area in attainment for the 1997 Annual PM2.5 NAAQS through 2025. As explained in section V below, EPA is also proposing to determine that attainment can be maintained through 2027. The maintenance plan includes 2015 and 2025 MVEBs for NOx and direct PM2.5 for the bi-state Louisville Area. EPA is proposing to approve these MVEBs and incorporate them into the Kentucky SIP.

    EPA also proposes to determine that the Kentucky portion of the bi-state Louisville Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of Bullitt and Jefferson Counties within the Kentucky portion of the bi-state Louisville Area, as found at 40 CFR part 81, from nonattainment to attainment for the 1997 Annual PM2.5 NAAQS.

    EPA is also notifying the public of the status of EPA's adequacy process for the 2015 and 2025 MVEBs for NOX and PM2.5 for the bi-state Louisville Area. The Adequacy comment period for the MVEBs for the bi-state Louisville Area began on January 24, 2012, with EPA's posting of the availability on EPA's Adequacy Web site (http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). The Adequacy comment period for these MVEBs closed on February 23, 2012. No comments, adverse or otherwise, were received through the Adequacy process. Please see section VIII of this notice of proposed rulemaking for further explanation of this process and for more details on the MVEBs.

    In summary, this proposed rulemaking is in response to Kentucky's March 5, 2012, redesignation request and associated SIP submission that addresses the specific issues summarized above and the necessary elements for redesignation described in section 107(d)(3)(E) of the CAA for the redesignation of the Kentucky portion of the bi-state Louisville Area to attainment for the 1997 Annual PM2.5 NAAQS.

    II. What is the background for EPA's proposed actions?

    Fine particle pollution can be emitted directly or formed secondarily in the atmosphere.2 The main precursors of secondary PM2.5 are sulfur dioxide (SO2), NOX, ammonia, and volatile organic compounds (VOCs). See 72 FR 20586, 20589 (April 25, 2007). Sulfates are a type of secondary particle formed from SO2 emissions from power plants and industrial facilities. Nitrates, another common type of secondary particle, are formed from NOX emissions from power plants, automobiles, and other combustion sources.

    2 Fine particulate matter (PM2.5) refers to airborne particles less than or equal to 2.5 micrometers in diameter. Although treated as a single pollutant, fine particles come from many different sources and are composed of many different compounds. In the bi-state Louisville Area, one of the largest components of PM2.5 is sulfate, which is formed through various chemical reactions from the precursor SO2. The other major component of PM2.5 is organic carbon, which originates predominantly from biogenic emission sources. Nitrate, which is formed from the precursor NOX, is also a component of PM2.5. Crustal materials from windblown dust and elemental carbon from combustion sources are less significant contributors to total PM2.5. VOCs, also precursors for PM, are emitted from a variety of sources, including motor vehicles, chemical plants, refineries, factories, consumer and commercial products, and other industrial sources. VOCs are also emitted by natural sources such as vegetation.

    On July 18, 1997, EPA promulgated the first air quality standards for PM2.5. EPA promulgated an annual standard at a level of 15.0 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations. In the same rulemaking, EPA promulgated a 24-hour standard of 65 μg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. On October 17, 2006 (71 FR 61144), EPA retained the annual average NAAQS at 15.0 μg/m3 but revised the 24-hour NAAQS to 35 μg/m3, based again on the 3-year average of the 98th percentile of 24-hour concentrations.3 Under EPA regulations at 40 CFR part 50, the primary and secondary 1997 Annual PM2.5 NAAQS are attained when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, Appendix N, is less than or equal to 15.0 μg/m3 at all relevant monitoring sites in the subject area averaged over a 3-year period.

    3 In response to legal challenges of the annual standard promulgated in 2006, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded that NAAQS to EPA for further consideration. See American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). However, given that the 1997 and 2006 Annual NAAQS are essentially identical, attainment of the 1997 Annual NAAQS would also indicate attainment of the remanded 2006 Annual NAAQS.

    On January 5, 2005, at 70 FR 944, and supplemented on April 14, 2005, at 70 FR 19844, EPA designated the bi-state Louisville Area as nonattainment for the Annual 1997 PM2.5 NAAQS. On November 13, 2009, at 74 FR 58688, EPA promulgated designations for the 24-hour PM2.5 standard established in 2006, designating the bi-state Louisville Area as attainment for that NAAQS. That action clarified that the bi-state Louisville Area was classified unclassifiable/attainment for the 24-hour NAAQS promulgated in 1997. EPA did not promulgate designations for the 2006 Annual PM2.5 NAAQS since that NAAQS was essentially identical to the 1997 Annual PM2.5 NAAQS. Therefore, the bi-state Louisville Area is designated nonattainment for the 1997 Annual PM2.5 NAAQS, and this proposed action only addresses this designation.

    All 1997 PM2.5 NAAQS areas were designated under subpart 1 of title I, part D, of the CAA. Subpart 1 contains the general requirements for nonattainment areas for any pollutant governed by a NAAQS and is less prescriptive than the other subparts of title I, part D. On April 25, 2007 (72 FR 20586), EPA promulgated its Clean Air Fine Particle Implementation Rule, codified at 40 CFR part 51, subpart Z, in which the Agency provided guidance for state and tribal plans to implement the 1997 PM2.5 NAAQS. The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded the Clean Air Fine Particle Implementation Rule and the final rule entitled “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (73 FR 28321, May 16, 2008) (collectively, “1997 PM2.5 Implementation Rules”) to EPA on January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of part D of title I of the CAA, rather than the particulate matter-specific provisions of subpart 4 of part D of title I. The effect of the court's ruling on this proposed redesignation action is discussed in detail in section VI of this notice.

    On July 29, 2016, EPA issued a rule entitled, “Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements” (PM2.5 SIP Requirements Rule) that clarifies how states should meet the statutory SIP requirements that apply to areas designated nonattainment for any PM2.5 NAAQS under subparts 1 and 4. See 81 FR 58010 (August 24, 2016). It does so by establishing regulatory requirements and providing guidance that is applicable to areas that are currently designated nonattainment for existing PM2.5 NAAQS and areas that are designated nonattainment for any PM2.5 NAAQS in the future. In addition, the rule responds to the D.C. Circuit's remand of the 1997 PM2.5 Implementation Rules. As a result, the requirements of the rule also govern future actions associated with states' ongoing implementation efforts for the 1997 and 2006 PM2.5 NAAQS. The rule also revokes the 1997 primary Annual NAAQS for areas designated as attainment for that standard because EPA revised the primary annual standard in 2012.

    III. What are the criteria for redesignation?

    The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided the following criteria are met: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations, and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area under section 110 and part D of title I of the CAA.

    On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and the Agency supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

    1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereinafter referred to as the “Calcagni Memorandum”);

    2. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and

    3. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.

    IV. Why is EPA proposing these actions?

    On March 5, 2012, Kentucky requested that EPA redesignate the Kentucky portion of the bi-state Louisville Area to attainment for the 1997 Annual PM2.5 NAAQS.4 EPA's evaluation indicates that the Kentucky portion of the bi-state Louisville Area meets the requirements for redesignation set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. As a result of these proposed findings, EPA is proposing to take the two related actions summarized in section I of this notice.

    4 For the reasons discussed in footnote 5, below, EPA's proposed action on Kentucky's redesignation request was delayed due to a technical systems audit on the PM2.5 laboratory in Kentucky that invalidated certain Jefferson County monitoring data collected in 2012 and 2013.

    V. What is EPA's analysis of the request?

    As stated above, in accordance with the CAA, EPA proposes to approve the 1997 Annual PM2.5 NAAQS maintenance plan, including the associated MVEBs, for the Kentucky portion of the bi-state Louisville Area and incorporate it into the Kentucky SIP, and redesignate the Kentucky portion of the bi-state Louisville Area to attainment for the 1997 Annual PM2.5 NAAQS. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.

    Criteria (1)—The Bi-State Louisville Area Has Attained the 1997 Annual PM2.5 NAAQS

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). For PM2.5, an area may be considered to be attaining the 1997 Annual PM2.5 NAAQS if it meets the standards, as determined in accordance with 40 CFR 50.13 and Appendix N of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the 1997 Annual PM2.5 NAAQS, the 3-year average of the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, Appendix N, must be less than or equal to 15.0 μg/m3 at all relevant monitoring sites in the subject area over a 3-year period. The relevant data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS) database. The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

    On September 9, 2016, EPA determined that the bi-state Louisville Area has attained the 1997 Annual PM2.5 NAAQS based on 2013-2015 data.5 See 81 FR 62390. In that action, EPA reviewed valid PM2.5 monitoring data from the bi-state Louisville Area for the 1997 Annual PM2.5 NAAQS from 2013-2015 and determined that the design value for the Area is less than the standard of 15.0 μg/m3 for that time period. The PM2.5 design values for monitors with complete data are summarized in Table 1, below.6

    5 EPA made this determination in association with the redesignation of the Indiana portion of the Area. EPA initially proposed to redesignate that portion of the Area to attainment based on monitoring data from 2009-2011 and preliminary data from 2012. However, in August 2013, EPA issued results of a technical systems audit on the PM2.5 laboratory in Kentucky that invalidated the Jefferson County monitoring data for all of 2012, and a small portion of the monitoring data from 2013 (a portion of the first quarter). Because there was not enough data to support an attainment determination for the Area, EPA could not proceed with the redesignation of the bi-state Louisville Area. Kentucky began collecting valid data in early 2013 (the end of the first quarter) after the monitoring audit issues had been addressed, resulting in a valid design value for the area using 2013-2015 data.

    6 See 81 FR 62390 for additional information regarding the evaluation of 2013-2015 data for the Area.

    Table 1—1997 Annual PM2.5 Design Values for Monitors With Complete Data in the Bi-State Louisville Area for 2013-2015 County Monitoring site 2013-2015
  • Design value
  • (μg/m3)
  • Clark County, IN 180190006 11.4 180190008 9.3 Floyd County, IN 180431004 10.0 Jefferson County, KY 211110043 11.3 211110051 11.7 211110067 10.5

    As shown in Table 1 above, the bi-state Louisville Area has a 2013-2015 design value of 11.7 μg/m3, which is below the 1997 Annual PM2.5 NAAQS. For this proposed action, EPA has reviewed 2016 preliminary monitoring data for the Area and proposes to find that the preliminary data does not indicate a violation of the NAAQS.7 EPA will not take final action to approve the redesignation if the 3-year design value exceeds the NAAQS prior to EPA finalizing the redesignation. As discussed in more detail below, Kentucky has committed to continue monitoring in the Kentucky portion of the Area in accordance with 40 CFR part 58.

    7 This preliminary data is available at EPA's air data Web site: http://aqsdr1.epa.gov/aqsweb/aqstmp/airdata/download_files.html#Daily.

    Criteria (2)—Kentucky Has a Fully Approved SIP Under Section 110(k) for the Kentucky Portion of the Bi-State Louisville Area and Criteria (5)—Kentucky Has Met All Applicable Requirements Under Section 110 and Part D of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that the Commonwealth has met all applicable SIP requirements for the Kentucky portion of the Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Kentucky SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.

    a. The Kentucky Portion of the Bi-State Louisville Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA

    General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (NSR permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

    Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.

    In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).

    EPA has reviewed Kentucky's SIP and has preliminarily concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of Kentucky's SIP addressing CAA section 110(a)(2) requirements including provisions addressing the 1997 Annual PM2.5 NAAQS. See 77 FR 60307 (October 3, 2012) and 79 FR 26143 (May 7, 2014). These requirements are, however, statewide requirements that are not linked to the PM2.5 nonattainment status of the Area. Therefore, EPA believes these SIP elements are not applicable for purposes of this redesignation.

    Title I, part D, subpart 1 applicable SIP requirements. EPA proposes to determine that the Kentucky SIP meets the applicable SIP requirements for the Kentucky portion of the Area for purposes of redesignation under part D of the CAA. Subpart 1 of part D, comprised of sections 172-179B of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. All areas that were designated nonattainment for the 1997 Annual PM2.5 NAAQS were designated under subpart 1 of the CAA. For purposes of evaluating this redesignation request, the applicable part D, subpart 1 SIP requirements are contained in sections 172(c)(1)-(9) and in section 176. A thorough discussion of the requirements contained in sections 172 and 176 can be found in the General Preamble for Implementation of title I. See 57 FR 13498 (April 16, 1992). Section VI of this proposed rulemaking notice discusses the relationship between this proposed redesignation action and subpart 4 of part D.

    Subpart 1, section 172 Requirements. Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not “applicable” for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard. See 57 FR 13498, 13564 (April 16, 1992). EPA noted that the requirements for reasonable further progress (RFP) and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. Id. This interpretation was also set forth in the Calcagni Memorandum. EPA's understanding of section 172 also forms the basis of its Clean Data Policy, which suspends a state's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, reasonably available control measures (RACM), and contingency measures under section 172(c)(9).

    On March 9, 2011, EPA determined that the bi-state Louisville Area had attained the 1997 annual PM2.5 NAAQS based upon ambient air monitoring data for the 2007-2009 period, which showed that the area had monitored attainment of the annual PM2.5 NAAQS. As a result of this determination and in accordance with EPA's Clean Data Policy, the requirements for the area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and other planning SIP revision related to attainment of the standards are suspended for so long as the area continues to attain the 1997 annual PM2.5 NAAQS.8 Therefore, Kentucky withdrew the aforementioned PM2.5 attainment demonstration SIP revision except for the portion addressing emissions inventory requirements under section 172(c)(3). However, as discussed below, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) recently issued an opinion in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015), that is inconsistent with EPA's longstanding interpretation regarding section 107(d)(3)(E)(ii) and requires that subpart 1 RACM be approved into the SIP before EPA can redesignate an area subject to section 172(c)(1).

    8 At the time of EPA's March 9, 2011 action, EPA's Clean Data Policy for PM2.5 was codified at 40 CFR 51.1004(c). This regulation was promulgated as part of the 1997 PM2.5 NAAQS implementation rule that was subsequently challenged and remanded in NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013), as discussed in Section VI of this notice. However, the Clean Data Policy portion of the implementation rule was not at issue in that case. In the PM2.5 SIP Requirements Rule, EPA updated the Clean Data Policy for the PM2.5 NAAQS and moved it to 40 CFR 51.1015.

    Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of RACM as expeditiously as practicable and to provide for attainment of the NAAQS. EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration.

    On July 14, 2015, the Sixth Circuit vacated EPA's redesignation of the Indiana and Ohio portions of the Cincinnati nonattainment area for the 1997 PM2.5 NAAQS because EPA had not approved RACM for that area into the Indiana and Ohio SIPs pursuant to CAA section 172(c)(1). Sierra Club v. EPA, 793 F.3d 656. The Court concluded that “a State seeking redesignation `shall provide for the implementation' of RACM/RACT [reasonably available control technology], even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS. If the State has not done so, EPA cannot `fully approve' the area's SIP, and redesignation to attainment status is improper.” Sierra Club, 793 F.3d at 670. EPA is bound by the Sixth Circuit's decision within the Court's jurisdiction.9

    9 Kentucky, Michigan, Ohio, and Tennessee are located within the Sixth Circuit's jurisdiction.

    On August 9, 2016, Kentucky submitted a SIP revision containing a RACM determination for the Kentucky portion of the Louisville Area, in accordance with CAA 172(c)(1) and the Sixth Circuit decision in Sierra Club, for incorporation into the Kentucky SIP in support of the Commonwealth's redesignation request. Although EPA continues to believe that subpart 1 RACM is not an applicable requirement under section 107(d)(3)(E) for an area that has already attained the 1997 Annual PM2.5 NAAQS, on October 21, 2016, EPA proposed to approve Kentucky's SIP revision to incorporate the subpart 1 RACM determination for the Kentucky portion of the Area into the SIP.10 See 81 FR 72755. EPA did not receive any adverse comments on the proposal, and on December 15, 2016, the EPA Region 4 Regional Administrator took final action to approve Kentucky's subpart 1 RACM determination SIP submission. Publication in the Federal Register is pending.

    10 The EPA Region 4 Regional Administrator signed a memorandum on July 20, 2015, seeking concurrence from the Director of EPA's Air Quality Policy Division (AQPD) in the Office of Air Quality Planning and Standards to act inconsistent with EPA's interpretation of CAA sections 107(d)(3)(E) and 172(c)(1) when taking action on pending and future redesignation requests in Kentucky and Tennessee because the Region is bound by the Sixth Circuit's decision in Sierra Club v. EPA. The AQPD Director issued her concurrence on July 22, 2015. This memorandum is not required to satisfy EPA's regional consistency regulations. See 40 CFR 56.5(b)(1); 81 FR 51102 (August 3, 2016).

    Because attainment has been reached in the Area, the section 172(c)(2) requirement that nonattainment plans contain provisions promoting reasonable further progress toward attainment is not relevant for purposes of redesignation. In addition, because the Area has attained the standard and is no longer subject to a RFP requirement, the requirement to submit the section 172(c)(9) contingency measures is not applicable for purposes of redesignation. Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.

    Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. On August 2, 2012 (77 FR 45956), EPA approved Kentucky's 2002 base-year emissions inventory for the bi-state Louisville Area.

    Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” The Commonwealth has demonstrated that the Kentucky portion of the bi-state Louisville Area will be able to maintain the NAAQS without part D NSR in effect, and therefore Kentucky need not have fully approved part D NSR programs prior to approval of the redesignation request. Kentucky's PSD program will become effective in the Kentucky portion of the bi-state Louisville Area upon redesignation to attainment.

    Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Kentucky SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

    176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally-supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs and projects that are developed, funded or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally-supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with federal conformity regulations relating to consultation, enforcement and enforceability that EPA promulgated pursuant to its authority under the CAA.

    EPA believes that it is reasonable to interpret the conformity SIP requirements 11 as not applying for purposes of evaluating the redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); See 60 FR 62748 (December 7, 1995). Nonetheless, Kentucky has an approved conformity SIP for the bi-state Louisville Area. See 75 FR 20780 (April 21, 2010).

    11 CAA section 176(c)(4)(E) requires states to submit revisions to their SIPs to reflect certain Federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the MVEBs that are established in control strategy SIPs and maintenance plans.

    For these reasons, EPA proposes to find that Kentucky has satisfied all applicable requirements for purposes of redesignation of the Area under section 110 and part D of the CAA.

    b. The Kentucky Portion of the Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA

    EPA has fully approved the applicable Kentucky SIP for the Kentucky portion of the bi-state Louisville Area for the 1997 Annual PM2.5 nonattainment area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003) and citations therein. Following passage of the CAA of 1970, Kentucky has adopted and submitted, and EPA has fully approved at various times, provisions addressing the various SIP elements applicable for the 1997 Annual PM2.5 NAAQS in the Kentucky portion of the bi-state Louisville Area (e.g., 77 FR 60307, October 3, 2012).

    As indicated above, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to an area's nonattainment status are not applicable requirements for purposes of redesignation.

    Criteria (3)—The Air Quality Improvement in the Bi-State Louisville Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable federal air pollution control regulations and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that Kentucky has demonstrated that the observed air quality improvement in the Kentucky portion of the bi-state Louisville Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and federal measures.

    Federal measures enacted in recent years have resulted in permanent emission reductions in particulate matter and its precursors. The federal measures that have been implemented include:

    Tier 2 vehicle standards and low-sulfur gasoline. Implementation of the Tier 2 vehicle standards began in 2004, and as newer, cleaner cars enter the national fleet, these standards continue to significantly reduce NOX emissions. The standards require all classes of passenger vehicles in any manufacturer's fleet to meet an average standard of 0.07 grams of NOX per mile. In addition, starting in January of 2006, the Tier 2 rule reduced the allowable sulfur content of gasoline to 30 parts per million (ppm). Most gasoline sold prior to this had a sulfur content of approximately 300 ppm. EPA expects that these standards will reduce NOX emissions from vehicles by approximately 74 percent by 2030, translating to nearly 3 million tons annually by 2030.

    Heavy-duty gasoline and diesel highway vehicle standards & ultra low-sulfur diesel rule. On October 6, 2000 (65 FR 59896), EPA promulgated a rule to reduce NOX and VOC emissions from heavy-duty gasoline and diesel highway vehicles that began to take effect in 2004. On January 18, 2001 (66 FR 5002), EPA promulgated a second phase of standards and testing procedures which began in 2007 to reduce particulate matter from heavy-duty highway engines and reduced the maximum highway diesel fuel sulfur content from 500 ppm to 15 ppm. The total program should achieve a 90 percent reduction in PM emissions and a 95 percent reduction in NOX emissions for new engines using low-sulfur diesel, compared to existing engines using higher-content sulfur diesel. EPA expects that this rule will reduce NOX emissions by 2.6 million tons by 2030 when the heavy-duty vehicle fleet is completely replaced with newer heavy-duty vehicles that comply with these emission standards.

    Non-road, large spark-ignition engines and recreational engines standards. The non-road spark-ignition and recreational engine standards, effective in July 2003, regulate NOX, hydrocarbons, and carbon monoxide from groups of previously unregulated non-road engines. These engine standards apply to large spark-ignition engines (e.g., forklifts and airport ground service equipment), recreational vehicles (e.g., off-highway motorcycles and all-terrain-vehicles), and recreational marine diesel engines sold in the United States and imported after the effective date of these standards. When all of the non-road spark-ignition and recreational engine standards are fully implemented, an overall 72 percent reduction in hydrocarbons, 80 percent reduction in NOX, and 56 percent reduction in carbon monoxide emissions are expected by 2020. These controls help reduce ambient concentrations of PM2.5.

    Large non-road diesel engine standards. This rule, which applies to diesel engines used in industries such as construction, agriculture, and mining, was promulgated in 2004 and fully phased in by 2014. This rule reduced allowable non-road diesel fuel sulfur levels from approximately 3,000 ppm to 500 ppm in 2007 and further reduced those levels to 15 ppm starting in 2010 (a 99 percent reduction). This rule also achieved significant reductions of up to 90 percent for NOX and particulate matter emissions nationwide.

    NO X SIP Call. On October 27, 1998 (63 FR 57356), EPA issued the NOX SIP Call requiring the District of Columbia and 22 states to reduce emissions of NOX, a precursor to ozone and PM2.5 pollution, and providing a mechanism (the NOX Budget Trading Program) that states could use to achieve those reductions. Affected states were required to comply with Phase I of the SIP Call beginning in 2004 and Phase II beginning in 2007. By the end of 2008, ozone season NOX emissions from sources subject to the NOX SIP Call dropped by 62 percent from 2000 emissions levels. All NOX SIP Call states, including Kentucky, have SIPs that currently satisfy their obligations under the NOX SIP Call, and EPA will continue to enforce the requirements of the NOX SIP Call.

    Reciprocating internal combustion engine National Emissions Standards for Hazardous Air Pollutants (NESHAP). In 2010, EPA issued rules regulating emissions of air toxics from existing compression ignition (CI) and spark ignition (SI) stationary reciprocating internal combustion engines (RICE) that meet specific site rating, age, and size criteria. With these RICE standards fully implemented in 2013, EPA estimates that the CI RICE standards reduce PM2.5 emissions from the covered CI engines by approximately 2,800 tons per year (tpy) and VOC emissions by approximately 27,000 tpy and that the SI RICE standards reduce NOX emissions from the covered SI engines by approximately 96,000 tpy.

    Category 3 marine diesel engine standards. Promulgated in 2010, this rule establishes more stringent exhaust emission standards for new large marine diesel engines with per cylinder displacement at or above 30 liters (commonly referred to as Category 3 compression-ignition marine engines) as part of a coordinated strategy to address emissions from all ships that effect U.S. air quality. Near-term standards for newly built engines applied beginning in 2011, and long-term standards requiring an 80 percent reduction in NOX emissions will begin in 2016.

    Boiler NESHAP. The NESHAP for industrial, commercial, and institutional boilers is projected to reduce VOC emissions. This NESHAP applies to boiler and process heaters located at major sources of hazardous air pollutants that burn natural gas, fuel oil, coal, biomass, refinery gas, or other gas and had a compliance deadline of January 31, 2016.

    Utility Mercury Air Toxics Standards (MATS) and New Source Performance Standards (NSPS). The MATS for coal and oil-fired electric generation units (EGUs) and the NSPS for fossil-fuel-fired electric utility steam generating units were published on February 16, 2012 (77 FR 9304). The purpose is to reduce mercury and other toxic air pollutant emissions from coal and oil-fired EGUs, 25 megawatts or more, that generate electricity for sale and distribution through the national electric grid to the public. The NSPS has revised emission standards for NOX, SO2, and particulate matter (PM) that apply to new coal and oil-fired power plants. The MATS compliance date for existing sources was April 16, 2015.

    CAIR and CSAPR. In its redesignation request and maintenance plan, the Commonwealth identified the Clean Air Interstate Rule (CAIR) as a permanent and enforceable measure that contributed to attainment in the bi-state Louisville Area. CAIR created regional cap-and-trade programs to reduce SO2 and NOX emissions in 27 eastern states, including Kentucky, that contributed to downwind nonattainment or interfered with maintenance of the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS. See 70 FR 25162 (May 12, 2005). EPA approved a revision to Kentucky's SIP on October 4, 2007 (72 FR 56623), that addressed the requirements of CAIR for the purpose of reducing SO2 and NOX emissions. By 2008, the beginning of the attainment time period identified by Kentucky, CAIR had been promulgated and was achieving emission reductions.

    In 2008 the D.C. Circuit initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR and thus to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR requires substantial reductions of SO2 and NOX emissions from EGUs in 28 states in the Eastern United States. As a general matter, because CSAPR is CAIR's replacement, emissions reductions associated with CAIR will for most areas be made permanent and enforceable through implementation of CSAPR.

    Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the Phase 2 SO2 and NOX ozone season CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015) (EME Homer City II). The CSAPR budgets for Kentucky are not affected by the Court's decision. The litigation over CSAPR ultimately delayed implementation of that rule for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. CSAPR's Phase 2 budgets were originally promulgated to begin on January 1, 2014, and are now scheduled to begin on January 1, 2017. CSAPR will continue to operate under the existing emissions budgets until EPA fully addresses the D.C. Circuit's remand. The Court's decision did not affect Kentucky's CSAPR emissions budgets; therefore, CSAPR ensures that the NOX and SO2 emissions reductions associated with CAIR and CSAPR throughout Kentucky are permanent and enforceable.12 Although Kentucky identified CAIR as a measure that contributed to permanent and enforceable emissions reductions, the air quality modeling analysis conducted for CSAPR demonstrates that the bi-state Louisville Area would be able to attain the 1997 annual PM2.5 NAAQS even in the absence of either CAIR or CSAPR. See “Air Quality Modeling Final Rule Technical Support Document,” App. B, pages B-43, B-45 and B-46. This modeling is available in the docket for this proposed redesignation action.

    12 CAIR and CSAPR established annual NOX and SO2 budgets to address nonattainment and interference with maintenance of the PM2.5 standard, because, as discussed above in Section II, NOX and SO2 are two main PM2.5 precursors.

    To the extent that bi-state Louisville relies on CSAPR for maintenance of the standard, EPA has identified the bi-state Louisville Area as having been significantly impacted by pollution transported from other states in both CAIR and CSAPR, and these rules greatly reduced the tons of SO2 and NOX emission generated in the states upwind of the area. The air quality modeling performed for the CSAPR rulemaking identified the following states as having contributed to PM2.5 concentrations in the bi-state Louisville Area: Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, Tennessee, West Virginia and Wisconsin. See 76 FR 48208 (August 8, 2011). Even though the first phase of CAIR implementation for SO2 did not begin until 2010, many sources began reducing their emissions well in advance of the first compliance deadline because of the incentives offered by CAIR for early compliance with the rule. The emission reductions in the states upwind of the bi-state Louisville Area achieved by CAIR, and made permanent by CSAPR, are unaffected by the D.C. Circuit's remand of CSAPR.13

    13 The D.C. Circuit in EME Homer City II remanded the SO2 trading program budgets for four states, none of which were identified as contributing to the bi-state Louisville Area.

    In addition to the above federal measures, Kentucky also identified the following State control measures, incorporated into Kentucky's SIP, that provide emission reductions in particulate matter and its precursors:

    New Process Operations—401 KAR 59:010. This regulation provides for the control of particulate matter emissions for affected facilities or sources located in nonattainment areas as well as attainment areas.

    RACT/RACM—401 KAR 50.012. This regulation establishes reasonably available control technology requirements for all air contaminant sources.

    Open Burning Bans—401 KAR 63:005. In 2005, Kentucky revised the open burning regulation to prohibit most types of open burning in PM2.5 nonattainment/maintenance areas within Kentucky during the period of May-September.

    Fugitive Emissions—401 KAR 63:010. This regulation provides for the control of fugitive emissions in the Commonwealth.

    Criteria (4)—The Kentucky Portion of the Bi-State Louisville Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Kentucky portion of the bi-state Louisville Area to attainment for the 1997 Annual PM2.5 NAAQS, Kentucky submitted a SIP revision to provide for the maintenance of the 1997 Annual PM2.5 NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA for the reasons discussed below.

    a. What is required in a maintenance plan?

    Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the Commonwealth of Kentucky must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, as EPA deems necessary, to assure prompt correction of any future 1997 Annual PM2.5 NAAQS violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed below, EPA finds that the Commonwealth's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Kentucky SIP.

    b. Attainment Emissions Inventory

    As discussed above, EPA has previously determined that the bi-state Louisville Area attained the 1997 Annual PM2.5 NAAQS based on monitoring data for the 3-year period from 2007-2009, and then subsequently based on monitoring data from 2013-2015. In its maintenance plan, the Commonwealth selected 2008 as the attainment emission inventory year. The attainment inventory identifies the level of emissions in the Area that is sufficient to attain the 1997 Annual PM2.5 NAAQS. The Commonwealth began development of the attainment inventory by first generating a baseline emissions inventory for the Area. As noted above, the year 2008 was chosen as the base year for developing a comprehensive emissions inventory for direct PM2.5 and the PM2.5 precursors SO2 and NOX. The projected inventory included with the maintenance plan estimates emissions forward to 2015 and 2025, which satisfies the 10-year interval required in section 175(A) of the CAA.

    The emissions inventories are composed of four major types of sources: Point, area, on-road mobile, and non-road mobile. The attainment and future year emissions inventories were projected by the Visibility Improvement State and Tribal Association of the Southeast and the Lake Michigan Air Directors Consortium using the 2005 base year inventory methodology as provided in the Appendix D of Kentucky's submittal. The future year emissions inventories have been estimated using projected rates of growth in population, traffic, economic activity, expected control programs, and other parameters. Non-road mobile emissions estimates were based on EPA's non-road mobile model, with the exception of the railroad locomotives, commercial marine, and aircraft. On-road mobile source emissions were calculated using EPA's MOVES2010 on-road mobile emission model.14 The 2008 SO2, NOX, and PM2.5 emissions for the Kentucky portion of the bi-state Louisville Area and the entire bi-state Louisville Area, as well as the emissions for other years, were developed consistent with EPA guidance and are summarized in Tables 8 and 9.

    14 MOVES2010 was the approved model at the time the Kentucky SIP was submitted. Currently, MOVES2014a is the approved on-road mobile source model.

    Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the Area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Calcagni Memorandum, p. 9. Where the emissions inventory method of showing maintenance is used, the purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni Memorandum, pp. 9-10.

    As discussed in detail below, Kentucky's maintenance plan submission expressly documents that the Area's overall emissions inventories will remain well below the attainment year inventories through 2025. In addition, for the reasons set forth below, EPA believes that the Area will continue to maintain the 1997 Annual PM2.5 NAAQS through 2027. Thus, if EPA finalizes its proposed approval of the redesignation request and maintenance plan, the approval will be based upon this showing, in accordance with section 175A, and EPA's analysis described herein, that the Commonwealth's maintenance plan provides for maintenance for at least ten years after redesignation.

    c. Maintenance Demonstration

    The maintenance plan for the Kentucky portion of the bi-state Louisville Area includes a maintenance demonstration that:

    (i) Shows compliance with and maintenance of the Annual PM2.5 standard by providing information to support the demonstration that current and future emissions of SO2, NOX, and PM2.5 remain at or below 2008 emissions levels.

    (ii) Uses 2008 as the attainment year and includes future emission inventory projections for 2015 and 2025.

    (iii) Identifies an “out year” at least 10 years after EPA review and potential approval of the maintenance plan. Per 40 CFR part 93, NOX and PM2.5 MVEBs were established for the last year (2025) of the maintenance plan. Additionally, Kentucky chose, through interagency consultation, to establish NOX and PM2.5 MVEBs for 2015 (see section VII below).

    (iv) Provides, as shown in Tables 2 through 7 below, the estimated and projected emissions inventories, in tpy, for the Kentucky portion of the Louisville (Bullitt 15 and Jefferson Counties) Area, for PM2.5, NOX, and SO2. Kentucky incorporated expected CAIR reductions into the Commonwealth's redesignation request inventories and projections regarding NOX and SO2 but did not incorporate CAIR reductions into the PM2.5 inventory.

    15 Based upon an email from John E. Gowins, Kentucky Division of Air Quality, dated October 31, 2012, the Bullitt County 2025 emission inventory values for the Non-EGU sector were incorrect in the March 5, 2012, redesignation request submittal. The values presented in Tables 2, 4, and 6, as well as projected total emission estimates Tables 8 and 9, have been changed to reflect the correct values. This email is located in the docket for this proposed action.

    Table 2—Bullitt County, Kentucky PM2.5 Emission Inventory; Totals for Base Year 2005, Estimated 2008, and Projected 2015 and 2025 (tpy)—Without CAIR Sector 2005
  • Base
  • 2008
  • Attainment
  • 2015
  • Interim
  • 2025
  • Maintenance
  • EGU Point 0 0 0 0 Non-EGU 186.67 259.07 428.02 669.37 Non-road 42.13 39.86 29.09 12.39 Area 812.93 822.39 855.23 895.91 On-road 84.08 85.40 55.96 27.72 Total 1125.81 1206.72 1368.3 1605.39
    Table 3—Jefferson County, Kentucky PM2.5 Emission Inventory; Totals for Base Year 2005, Estimated 2008, and Projected 2015 and 2025 (tpy)—Without CAIR Sector 2005
  • Base
  • 2008
  • Attainment
  • 2015
  • Interim
  • 2025
  • Maintenance
  • EGU Point 3,123.24 2,763.06 2,481.90 2,481.90 Non-EGU 604.24 640.00 568.43 479.96 Non-road 579.53 571.03 212.51 124.16 Area 550.70 496.28 440.65 371.92 On-road 721.30 627.06 339.41 177.60 Total 5,579.01 5,097.43 4,042.90 3,635.54
    Table 4—Bullitt County, Kentucky NOX Emission Inventory; Totals for Base Year 2005, Estimated 2008, and Projected 2015 and 2025 (tpy)—With CAIR Sector 2005
  • Base
  • 2008
  • Attainment
  • 2015
  • Interim
  • 2025
  • Maintenance
  • EGU Point 0 0 0 0 Non-EGU 221.70 288.40 444.04 666.38 Non-road 540.19 502.71 385.51 210.99 Area 29.92 8.72 1.42 1.09 On-road 2,952.07 2,820.80 1,782.71 866.81 Total 3,743.88 3,620.63 2,613.68 1745.27
    Table 5—Jefferson County, Kentucky NOX Emission Inventory; Totals for Base Year 2005, Estimated 2008, and Projected 2015 and 2025 (tpy)—With CAIR Sector 2005
  • Base
  • 2008
  • Attainment
  • 2015
  • Interim
  • 2025
  • Maintenance
  • EGU Point 20,176.48 22,749.14 21,595.85 22,221.35 Non-EGU 1,489.68 1,987.01 1,759.66 1,479.63 Non-road 10,590.84 11,255.08 9,912.27 8,269.43 Area 1,272.69 1,382.23 1,217.32 1,015.56 On-road 22,241.72 19,094.05 10,259.60 4,935.49 Total 55,771.41 56,467.51 44,744.70 37,921.46
    Table 6—Bullitt County, Kentucky SO2 Emission Inventory; Totals for Base Year 2005, Estimated 2008, and Projected 2015 and 2025 (tpy)—With CAIR Sector 2005
  • Base
  • 2008
  • Attainment
  • 2015
  • Interim
  • 2025
  • Maintenance
  • EGU Point 0 0 0 0 Non-EGU 365.91 507.16 836.74 1307.58 Non-road 32.05 14.28 3.29 0.76 Area 94.94 96.47 98.41 100.36 On-road 12.11 13.28 15.01 15.76 Total 505.01 631.19 953.45 1424.46
    Table 7—Jefferson County, Kentucky SO2 Emission Inventory; Totals for Base Year 2005, Estimated 2008, and Projected 2015 and 2025 (tpy)—With CAIR Sector 2005
  • Base
  • 2008
  • Attainment
  • 2015
  • Interim
  • 2025
  • Maintenance
  • EGU Point 42,852.96 38,684.02 38,684.02 38,684.02 Non-EGU 1,894.40 2,080.95 2,080.95 2,080.95 Non-road 714.33 778.68 960.48 1,297.16 Area 0.00 0.00 0.00 0.00 On-road 95.26 101.00 102.55 100.43 Total 45,556.95 41,644.65 41,828.00 42,162.56
    Table 8—Actual (2008) and Projected Total Emission Estimates for the Kentucky Portion of the Bi-State Louisville Area (tpy) Year PM2.5 NOX SO2 2008 6,304.15 60,088.14 42,275.84 2015 5,411.20 47,358.38 42,781.45 2025 5,240.93 39,666.73 43,587.02 Decrease from 2008 to 2025 1,063.22 20,421.41 −1,311.18 Table 9—Actual (2008) and Projected Total Emission Estimates for the Entire Bi-State Louisville Area (tpy) Year PM2.5 NOX SO2 2008 7,506.62 97,614.20 151,648.36 2015 6,521.57 70,147.12 77,397.48 2025 6,294.86 58,635.36 76,929.92 Decrease from 2008 to 2025 1,211.76 38,978.84 74,718.44

    In situations where local emissions are the primary contributor to nonattainment, such as the bi-state Louisville Area, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the ambient air quality standard should not be exceeded in the future. As reflected above in Table 9, future emissions of all the relevant pollutants in the bi-state Louisville Area are expected to be well below the “attainment level” emissions in 2008, thus illustrating that the bi-state Louisville Area is expected to continue to attain the 1997 PM2.5 NAAQS through 2025 and beyond. Further, even though EPA evaluates maintenance demonstrations on an area-wide basis, EPA finds that projected emissions in only the Kentucky portion of the bi-state Louisville Area are also consistent with maintenance of the 1997 PM2.5 NAAQS. As reflected in Table 8, emissions of direct PM2.5 and NOX in the Kentucky portion of the bi-state Louisville Area are expected to decrease from 2008 to 2025 by approximately 17 percent and 34 percent, respectively, while emissions of SO2 are expected to increase by approximately 3 percent. Thus, the significant projected reductions in direct PM2.5 and NOX indicate that future emissions in the Kentucky portion of the bi-state Louisville Area are expected to support continued maintenance of the 1997 Annual PM2.5 NAAQS through 2025.

    A maintenance plan requires the state to show that projected future year emissions will not exceed the level of emissions which led the Area to attain the NAAQS. Kentucky has projected emissions as described previously and determined that emissions in the bi-state Louisville Area will remain below those in the attainment year inventory for the duration of the maintenance plan.

    While DAQ's maintenance plan projects maintenance of the 1997 Annual PM2.5 NAAQS through 2025, as noted above, EPA believes that the bi-state Louisville Area will continue to maintain the standard through 2027 for several reasons: All of the federal regulatory requirements that enabled the Area to attain the NAAQS will continue to be in effect and enforceable after the 10-year maintenance period; the most recent maximum potential annual PM2.5 design value (for the period 2013-2015) for the Area, 11.7 µg/m3, is well below the standard of 15.0 µg/m3; and overall emissions are projected to decline significantly through 2025. Because it is unlikely that emissions will suddenly increase in 2026 and 2027 in an amount that results in overall emissions in the area exceeding attainment year inventory levels, EPA expects that the bi-state Louisville Area will continue maintain the 1997 Annual PM2.5 NAAQS through at least 2027.

    d. Monitoring Network

    There are currently four monitors in Jefferson County measuring PM2.5 in the Kentucky portion of the bi-state Louisville Area. The Commonwealth of Kentucky, through DAQ, has committed to continue operation of the monitors in the Kentucky portion of the bi-state Louisville Area in compliance with 40 CFR part 58 and have thus addressed the requirement for monitoring. EPA approved Kentucky's 2015 monitoring plan on October 28, 2015.

    e. Verification of Continued Attainment

    The Commonwealth of Kentucky, through DAQ, has the legal authority to enforce and implement the requirements of the Kentucky portion of the bi-state Louisville Area 1997 Annual PM2.5 maintenance plan. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future PM2.5 attainment problems.

    DAQ will track the progress of the maintenance plan by performing future reviews of triennial emission inventories for the Kentucky portion of the bi-state Louisville Area as required in the Air Emissions Reporting Rule (AERR). Emissions information will be compared to the 2008 attainment year and the 2025 projected maintenance year inventories to assess emission trends, as necessary, and to assure continued compliance with the annual PM2.5 standard.

    f. Contingency Measures in the Maintenance Plan

    Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that a state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the Commonwealth. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).

    In the March 5, 2012, submittal, Kentucky commits to maintaining the existing control measures identified in Chapter 5 of its submission (addressing section 107(d)(3)(E)(v)) after redesignation. The contingency plan included in the submittal identifies triggers to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. The Commonwealth will use actual ambient monitoring data to determine whether a trigger event has occurred and when contingency measures should be implemented.

    In the event of a monitored violation of the 1997 Annual PM2.5 NAAQS in the Area, the Commonwealth commits to adopt one or more of the following control measures within nine months of the monitored violation in order to bring the Area into compliance and to implement the control measure(s) within 18 months of the monitored violation:

    • Implementation of a program to require additional emissions reductions on stationary sources;

    • Implementation of fuel programs, including incentives for alternative fuels;

    • Restriction of certain roads or lanes, or construction of such lanes for use by passenger buses or high-occupancy vehicles;

    • Trip-reduction ordinances;

    • Employer-based transportation management plans, including incentives;

    • Programs to limit or restrict vehicle use in downtown areas, or other areas of emission concentration, particularly during periods of peak use;

    • Programs for new construction and major reconstruction of paths or tracks for use by pedestrians or by non-motorized vehicles when economically feasible and in the public interest;

    • Diesel reduction emissions strategies, including diesel retrofit programs;

    • Any other control program that is developed and deemed to be more advantageous for the Area.

    In the event that a measured value of the weighted annual arithmetic mean, as determined in accordance with 40 CFR part 50, Appendix N, is 15.5 µg/m3 or greater in a single calendar year in any portion of the Area, the Commonwealth will evaluate existing controls measures to determine whether any further emission reduction measures should be implemented at that time. In addition to the triggers indicated above, Kentucky will monitor regional emissions through the AERR and compare them to the projected inventories and the attainment year inventory.

    EPA preliminarily concludes that the maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment emission inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. Therefore, EPA proposes to find that the maintenance plan SIP revision submitted by the Commonwealth for the Kentucky portion of the bi-state Louisville Area meets the requirements of section 175A of the CAA and is approvable.

    VI. What is the effect of the January 4, 2013, D.C. Circuit decision regarding PM2.5 implementation under subpart 4? a. Background

    As discussed in section II of this action, the D.C. Circuit remanded the 1997 PM2.5 Implementation Rule to EPA on January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428. The court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of part D of Title I of the CAA, rather than the particulate matter-specific provisions of subpart 4 of part D of Title I.

    For the purposes of evaluating Kentucky's redesignation request for its portion of the bi-state Louisville Area, to the extent that implementation under subpart 4 would impose additional requirements for areas designated nonattainment, EPA believes that those requirements are not “applicable” for the purposes of CAA section 107(d)(3)(E), and thus EPA is not required to consider subpart 4 requirements with respect to the redesignation of the Kentucky portion of the bi-state Louisville Area. Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a state's submittal of a complete redesignation request. See “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (Calcagni memorandum). See also “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for the plan and Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael Shapiro, Acting Assistant Administrator, Air and Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking applying this interpretation and expressly rejecting Sierra Club's view that the meaning of “applicable” under the statute is “whatever should have been in the plan at the time of attainment rather than whatever actually was in already implemented or due at the time of attainment”).16 In this case, at the time that Kentucky submitted its redesignation request on March 5, 2012, requirements under subpart 4 were not due, and indeed, were not yet known to apply.

    16 Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the CAA.

    On June 2, 2014, EPA published a rule entitled “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS” (“Classification and Deadlines Rule”). See 79 FR 31566. In that rule, the Agency responded to the D.C. Circuit's January 2013 decision by establishing classifications for PM2.5 nonattainment areas under subpart 4, and by establishing a new SIP submission date of December 31, 2014, for moderate area attainment plans and for any additional attainment-related or nonattainment new source review plans necessary for areas to comply with the requirements applicable under subpart 4. Id. at 31,567-70. Therefore, when Kentucky submitted its request in March 2012, the deadline for submitting a SIP to meet the Act's subpart 4 requirements had not yet passed, and those requirements are therefore not applicable for purposes of evaluating Kentucky's request for redesignation.

    b. Subpart 4 Requirements and the Kentucky's Redesignation Request Its Portion of the Bi-State Louisville Area

    Even though the substantive requirements of subpart 4 were not applicable requirements that Kentucky was required to have met at the time of its redesignation request submission, EPA believes that even the imposition of those substantive requirements would not pose a bar to the redesignation of the Kentucky portion of the bi-state Louisville Area. The additional requirements found in subpart 4 are either designed to help an area achieve attainment (also known as “attainment planning requirements”) or are related to new source permitting. None of these additional requirements are applicable for purposes of evaluating a redesignation from nonattainment to attainment under EPA's long-standing interpretation of CAA section 107(d)(3)(E)(ii) and (v).

    As background, EPA notes that subpart 4 incorporates components of subpart 1 of part D, which contains general air quality planning requirements for areas designated as nonattainment. See section 172(c). Subpart 4 itself contains specific planning and scheduling requirements for PM1017 nonattainment areas, and under the Court's January 4, 2013, decision in NRDC v. EPA, these same statutory requirements also apply for PM2.5 nonattainment areas.18 In the General Preamble, EPA's longstanding general guidance interpreting the 1990 amendments to the CAA, EPA discussed the relationship of subpart 1 and subpart 4 SIP requirements and pointed out that subpart 1 requirements were to an extent “subsumed by, or integrally related to, the more specific PM-10 requirements.” See 57 FR 13538 (April 16, 1992). The subpart 1 requirements include, among other things, provisions for attainment demonstrations, RACM, RFP, emissions inventories, and contingency measures.

    17 PM10 refers to particles nominally 10 micrometers in diameter or smaller.

    18 In explaining their decision, the court reasoned that the plain meaning of the CAA requires implementation of the 1997 PM2.5 NAAQS under subpart 4 because PM2.5 particles fall within the statutory definition of PM10 and are thus subject to the same statutory requirements. EPA finalized its interpretation of subpart 4 requirements as applied to the PM2.5 NAAQS in its final rule entitled “Air Quality State Implementation Plans; Approvals and Promulgations: Fine Particulate Matter National Ambient Air Quality Standards” (81 FR 58010, August 24, 2016).

    As noted above, in the Classification and Deadlines Rule, EPA initially classified all areas designated nonattainment for either the 1997 or the 2006 PM2.5 NAAQS as “moderate” nonattainment areas. Additional requirements that would apply to the bi-state Louisville Area as a moderate nonattainment area are therefore sections 189(a) and (c), including the following: (1) An approved permit program for construction of new and modified major stationary sources (section 189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)).19

    19 EPA's final implementation rule (81 FR 58010, August 24, 2016) includes, among other things, the Agency's interpretation of these moderate area requirements for purposes of PM2.5 NAAQS implementation.

    The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM10, without adding to them. Consequently, EPA believes that section 189(a)(1)(A) does not itself impose for redesignation purposes any additional requirements for moderate areas beyond those contained in subpart 1.20 In any event, in the context of redesignation, EPA has long relied on the interpretation that a fully approved nonattainment new source review program is not considered an applicable requirement for redesignation, provided the area can maintain the standard with a PSD program after redesignation. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” See also rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

    20 The potential effect of section 189(e) on section 189(a)(1)(A) for purposes of evaluating this redesignation is discussed below.

    With respect to the specific attainment planning requirements under subpart 4,21 EPA applies the same interpretation that it applies to attainment planning requirements under subpart 1 or any of other pollutant-specific subparts. That is, under its long-standing interpretation of the CAA, where an area is already attaining the standard, EPA does not consider those attainment-planning requirements to be applicable for purposes of evaluating a request for redesignation because requirements that are designed to help an area achieve attainment no longer have meaning where an area is already meeting the standard.

    21 These planning requirements include the attainment demonstration, quantitative milestone requirements, and RACM analysis.

    Thus, at the time of Kentucky's submission of its redesignation request, the requirement for the bi-state Louisville Area to comply with subpart 4 had not yet come due and was, therefore, not applicable for purposes of EPA's evaluation of the redesignation. Moreover, even if Kentucky had been required to comply with those subpart 4 requirements, the additional substantive requirements for a moderate nonattainment area under subpart 4 were not applicable for purposes of redesignation anyway, given EPA's long-standing interpretation of the applicability of certain requirements to areas that are attaining the NAAQS.

    c. Subpart 4 and Control of PM2.5 Precursors

    As noted previously, EPA does not believe that the requirement to comply with subpart 4 applied to Kentucky's redesignation request for its portion of the bi-state Louisville Area because that request was submitted prior to the moderate area SIP submission date of December 31, 2014. However, even if the requirements of subpart 4 were to apply to the Area, EPA nevertheless believes that the additional requirements of subpart 4 would not pose an obstacle to our approval of the request to redesignate the Kentucky portion of the bi-state Louisville Area. Specifically, EPA proposes to determine that, because the bi-state Louisville Area is attaining the standard, no additional controls of any PM2.5 precursors would be required. Under either subpart 1 or subpart 4, for purposes of demonstrating attainment as expeditiously as practicable, a state is required to evaluate all economically and technologically feasible control measures for direct PM emissions and precursor emissions, and adopt those measures that are deemed reasonably available. Relevant precursors to PM2.5 pollution include SO2, NOX, VOCs, and ammonia. Moreover, CAA section 189(e) in subpart 4 specifically provides that control requirements for major stationary sources of direct PM10 shall also apply to PM10 precursors from those sources, except where EPA determines that major stationary sources of such precursors “do not contribute significantly to PM10 levels which exceed the standard in the area.”

    Under subpart 1 and EPA's prior implementation rule, all major stationary sources of PM2.5 precursors were subject to regulation, with the exception of ammonia and VOCs. Thus, assuming subpart 4 requirements are applicable for purposes of evaluating this redesignation request, EPA is analyzing here whether additional controls of ammonia and VOCs from major stationary sources are required under section 189(e) of subpart 4 in order to redesignate the area for the 1997 PM2.5 standard. As explained below, EPA does not believe that any additional controls of ammonia and VOCs are required in the context of this redesignation.

    In the General Preamble, EPA discusses its approach to implementing section 189(e). See 57 FR 13538 (April 16, 1992). With regard to precursor regulation under section 189(e), the General Preamble explicitly states that control of VOCs under other Act requirements may suffice to relieve a state from the need to adopt precursor controls under section 189(e). See 57 FR 13542. EPA in this rulemaking proposes to determine that even if not explicitly addressed by Kentucky in its submission, the Commonwealth does not need to take further action with respect to ammonia and VOCs as precursors to satisfy the requirements of section 189(e). This proposed determination is based on our findings that: (1) The bi-state Louisville Area contains no major stationary sources of ammonia, and (2) existing major stationary sources of VOCs are adequately controlled under other provisions of the CAA regulating the ozone NAAQS.22 In the alternative, EPA proposes to determine that, under the express exception provisions of section 189(e), and in the context of the redesignation of the area, which is attaining the 1997 annual PM2.5 standard, at present ammonia and VOC precursors from major stationary sources do not contribute significantly to levels exceeding the 1997 PM2.5 standard in the bi-state Louisville Area. See 57 FR 13539.

    22 The bi-state Louisville Area has reduced VOC emissions through the implementation of various control programs including VOC Reasonably Available Control Technology (RACT) regulations and various on-road and non-road motor vehicle control programs.

    As noted earlier, EPA determined in March 2011 (76 FR 12860) and September 2011 (76 FR 55544) that the bi-state Louisville Area was attaining the 1997 Annual PM2.5 NAAQS and that the Area had attained the NAAQS by the applicable attainment date of April 5, 2010. Under EPA's regulations, a determination of attainment, also known as a clean data determination, suspends the CAA's requirements to submit an attainment demonstration, including an analysis of reasonably available control measures and control technology; reasonable further progress; and contingency measures. Under subpart 4, Kentucky's plan for attaining the 1997 PM2.5 NAAQS in the bi-state Louisville Area would have had to consider all PM2.5 precursors, including VOCs and ammonia, and whether there were control measures, including for existing sources under section 189(e), available that would have advanced the area's attainment goals. However, because the bi-state Louisville Area has already attained the 1997 PM2.5 NAAQS, the Commonwealth's requirement to submit a plan demonstrating how the Area would attain has been suspended, and, moreover, the Area has shown that it has attained with its current approach to regulation of PM2.5 precursors. Therefore, EPA believes that it is reasonable to conclude in the context of this redesignation that there is no need to revisit the attainment control strategy with respect to the treatment of precursors. In addition, as noted below, EPA has analyzed projections of VOC and ammonia emissions in the area and has determined that VOC emissions are projected to decrease by over 8,000 tpy from 2007-2020 and ammonia emissions, which are emitted in marginal amounts in the bi-state Louisville Area, are projected to decrease by approximately 5 tpy. Accordingly, EPA does not view the January 4, 2013, decision of the Court as precluding redesignation of the bi-state Louisville Area to attainment for the 1997 Annual PM2.5 NAAQS. In sum, even if Kentucky were required to address precursors for the bi-state Louisville Area under subpart 4 rather than under subpart 1, EPA would still conclude that the Area had met all applicable requirements for purposes of redesignation in accordance with section 107(d)(3)(E)(ii) and (v).

    f. Maintenance Plan and Evaluation of Precursors

    EPA proposes to determine that the Commonwealth's maintenance plan shows continued maintenance of the standard by tracking the levels of the precursors whose control brought about attainment of the 1997 Annual PM2.5 standard in the bi-state Louisville Area. EPA therefore believes that the only additional consideration related to the maintenance plan requirements that results from the court's January 4, 2013, decision is that of assessing the potential role of VOCs and ammonia in demonstrating continued maintenance in this area. As explained below, based upon documentation provided by Kentucky and supporting information, EPA believes that the maintenance plan for the bi-state Louisville Area need not include any additional emission reductions of VOCs or ammonia in order to provide for continued maintenance of the standard.

    First, as noted above in EPA's discussion of section 189(e), VOC emission levels in this area have historically been well-controlled under SIP requirements related to ozone and other pollutants. Second, total ammonia emissions throughout the bi-state Louisville Area are projected to be approximately 2,000 tpy in 2020. See Table 10, below. This amount of ammonia emissions is relatively low in comparison to the individual amounts of SO2, NOX, and direct PM2.5 emissions from sources in the Area. Third, as described below, available information shows that no precursor, including VOCs and ammonia, is expected to increase over the maintenance period so as to interfere with or undermine the State's maintenance demonstration.

    The emissions inventories used in the regulatory impact analysis (RIA) for the 2012 PM2.5 NAAQS, included in the docket for today's action, show that VOC emissions are projected to decrease by 8,148.91 tpy and ammonia emissions are projected to decrease by 5.22 tpy in the Area between 2007 and 2020. See Table 10, below. Thus, emissions of VOCs are projected to decrease by 20 percent, and emissions of ammonia are projected to remain about the same, decreasing by less than one percent.

    23 These emissions estimates were taken from the emissions inventories developed for the RIA for the 2012 PM2.5 NAAQS. Table includes the entire bi-state KY-IN area.

    Table 10—Comparison of 2007 and 2020 VOC and Ammonia Emission Totals by Source Sector (tpy) for the Area 23 Sector VOC 2007 2020 Net change Ammonia 2007 2020 Net change Nonpoint 15,300.78 15,110.61 −190.17 1,308.11 1,386.18 78.07 Nonroad 4,369.3 2,397.67 −1,971.63 7.57 8.96 1.39 Onroad 9,533.65 3,613.66 −5,919.99 474.46 264.95 −209.51 Point 12,487.7 12,420.58 −67.12 182.13 306.96 124.83 Total 41,691.43 33,542.52 −8,148.91 1,972.27 1,967.05 −5.22

    While the RIA emissions inventories are only projected out to 2020, there is no reason to believe that this downward trend would not continue through 2027. Given that the bi-state Louisville Area is already attaining the 1997 PM2.5 NAAQS even with the current level of emissions from sources in the Area, the overall trend of emissions inventories is consistent with continued attainment.

    In addition, available air quality data and modeling analysis show continued maintenance of the standard during the maintenance period. As noted above, the bi-state Louisville Area has an annual PM2.5 design value of 11.7 μg/m3 during 2013-2015, the most recent three years available with quality-assured and certified ambient air monitoring data. This is well below the 1997 Annual PM2.5 NAAQS of 15.0 μg/m3. Moreover, the modeling analysis conducted for RIA for the 2012 PM2.5 NAAQS indicates that the design value for this area is expected to continue to decline through 2020. In the RIA analysis, the 2020 modeled design value for all counties in the bi-state Louisville Area is projected to be 9.8 μg/m3. Given the decrease in overall precursor emissions projected through 2025, and expected through 2027, it is reasonable to conclude that the monitored PM2.5 concentrations in this area will also continue to decrease through 2025.

    Thus, EPA believes that there is ample justification to conclude that the bi-state Louisville Area should be redesignated, even taking into consideration the emissions of VOCs and ammonia potentially relevant to PM2.5. After consideration of the D.C. Circuit's January 4, 2013, decision, and for the reasons set forth in this notice, EPA continues to propose approval of Kentucky's maintenance plan and its request to redesignate the bi-state Louisville Area to attainment for the 1997 p.m.2.5 NAAQS.

    VII. What is EPA's analysis of the proposed NOX and PM2.5 MVEBs for the bi-state Louisville Area?

    Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of a state's air quality plan that addresses pollution from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any interim milestones. If a transportation plan does not conform, most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. The regional emissions analysis is one, but not the only, requirement for implementing transportation conformity. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are areas that were previously nonattainment for a particular NAAQS but have since been redesignated to attainment with an approved maintenance plan for that NAAQS.

    Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions. See 40 CFR 93.101. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB.

    After interagency consultation with the transportation partners for the bi-state Louisville Area, Kentucky has elected to develop MVEBs for NOX and PM2.5 for the entire Area. Kentucky developed these MVEBs, as required, for the last year of its maintenance plan, 2025. Kentucky also established MVEBs for the interim year of 2015. The MVEBs reflect the total on-road emissions for 2015 and 2025, plus an allocation from the available NOX and PM2.5 safety margin. Under 40 CFR 93.101, the term “safety margin” is the difference between the attainment level (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The safety margin can be allocated to the transportation sector; however, the total emissions must remain below the attainment level. The NOX and PM2.5 MVEBs and allocation from the safety margin were developed in consultation with the transportation partners and were added to account for uncertainties in population growth, changes in model vehicle miles traveled, and new emission factor models. The interagency consultation group approved a 15 percent safety margin for direct PM2.5 mobile source emission estimates for the years 2015 and 2025, and a 15 percent safety margin for NOX mobile source emission estimates for the years 2015 and 2025.24 The NOX and PM2.5 MVEBs for the bi-state Louisville Area are defined in Table 11, below.

    24 The amount of the allocation for the safety margin is actually 15 percent of the PM2.5 and NOX mobile emissions for 2015 and 2025. The actual percentage of the available safety margin for PM2.5 for 2015 and 2025 is 6.40 and 2.53, respectively. The actual percentage of the available safety margin for NOX for 2015 and 2025 is 8.37 and 3.19, respectively.

    Table 11—Motor Vehicle Emissions Budget for the Bi-State Louisville Area [tpy] PM2.5 NOX 2015 Mobile Emissions 504.95 15,392.13 2015 Safety Margin Allocation 75.74 2,308.82 2015 Total Mobile Budget 580.69 17,700.95 2025 Mobile Emissions 281.77 8,097.18 2025 Safety Margin Allocated 42.27 1,214.58 2025 Total Mobile Budget 324.04 9,311.76

    As mentioned above, Kentucky has chosen to allocate a portion of the available safety margin for the bi-state Louisville Area to the NOX and PM2.5 MVEBs for 2015 and 2025. The NOX safety margin allocations are 2,308.82 tpy and 1,214.58 tpy for 2015 and 2025, respectively, and the remaining safety margins for NOX for years 2015 and 2025 are 25,288.46 tpy and 36,869.20 tpy, respectively. The PM2.5 safety margin allocations are 75.74 tpy and 42.27 tpy for 2015 and 2025, respectively, and the remaining safety margins for PM2.5 for years 2015 and 2025 are 1,107.98 tpy and 1,626.12 tpy, respectively.

    Through this rulemaking, EPA is proposing to approve into the Kentucky SIP the MVEBs for NOX and PM2.5 for 2015 and 2025 for the bi-state Louisville Area because EPA has determined that the Area maintains the 1997 Annual PM2.5 NAAQS with the emissions at the levels of the budgets. If the MVEBs for the bi-state Louisville Area are approved or found adequate (whichever is completed first), they must be used for future conformity determinations. After thorough review, EPA is proposing to approve the budgets because they are consistent with maintenance of the 1997 Annual PM2.5 NAAQS through 2027.

    VIII. What is the status of EPA's adequacy determination for the Proposed NOX and PM2.5 MVEBs for 2015 and 2025 for the bi-state Louisville Area?

    When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEBs contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds that the submitted MVEBs is adequate for transportation conformity purposes, that MVEBs must be used by state and federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.

    EPA's substantive criteria for determining adequacy of a MVEBs are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004). Additional information on the adequacy process for transportation conformity purposes is available in the proposed rule entitled, “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes,” 68 FR 38974, 38984 (June 30, 2003).

    As discussed earlier, Kentucky's maintenance plan submission includes NOX and PM2.5 MVEBs for the bi-state Louisville Area for 2015 and 2025, the last year of the maintenance plan. EPA reviewed the NOX and PM2.5 MVEBs through the adequacy process described in Section I.

    EPA intends to make its determination on the adequacy of the 2015 and 2025 MVEBs for the bi-state Louisville Area for transportation conformity purposes in the near future by completing the adequacy process that was started on January 24, 2012. If EPA finds these MVEBs adequate or takes final action to approve them into the Kentucky SIP, these new MVEBs for NOX and PM2.5 must be used for future transportation conformity determinations until such time that the 1997 PM2.5 NAAQS is consider revoked for this Area. EPA's most recently promulgated PM2.5 implementation rule provides that the 1997 PM2.5 NAAQS will be revoked for any area that is redesignated for the NAAQS upon the effective date of that redesignation. In the meanwhile, for required regional emissions analysis years between 2015 and 2024, the applicable budgets will be the new 2015 MVEBs established in the maintenance plan. For years 2025 and beyond, the applicable budgets will be the new 2025 MVEB.

    IX. What is the effect of EPA's proposed actions?

    EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval. Approval of Kentucky's redesignation request would change the legal designation of Bullitt and Jefferson Counties in Kentucky for the 1997 Annual PM2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment. Approval of Kentucky's associated SIP revision would also incorporate a plan for maintaining the 1997 Annual PM2.5 NAAQS in the Area through 2025 into the Kentucky SIP. This maintenance plan includes contingency measures to remedy any future violations of the 1997 Annual PM2.5 NAAQS and procedures for evaluation of potential violations. The maintenance plan also includes NOX and PM2.5 MVEBs for the bi-state Louisville Area. The proposed NOX and PM2.5 MVEBs for 2025 for the bi-state Louisville Area are 9,311.76 tpy and 324.04 tpy, respectively. Kentucky also chose to establish an interim year MVEBs for 2015 of 17,700.95 tpy and 580.69 tpy for NOX and PM2.5, respectively.

    X. Proposed Actions

    EPA is proposing to: (1) Approve the maintenance plan for the Kentucky portion of the bi-state Louisville Area, including the PM2.5 and NOX MVEBs for 2015 and 2025 for the entire bi-state Louisville Area, and incorporate it into the Kentucky SIP, and (2) approve Kentucky's redesignation request for the 1997 PM2.5 NAAQS for the Kentucky portion of the bi-state Louisville Area. Further as part of this proposed action, EPA is also describing the status of its adequacy determination for the PM2.5 and NOX MVEBs for 2015 and 2025 in accordance with 40 CFR 93.118(f)(1).

    If finalized, approval of the redesignation request would change the official designation of Bullitt and Jefferson Counties in Kentucky for the 1997 Annual PM2.5 NAAQS, found at 40 CFR part 81 from nonattainment to attainment, as found at 40 CFR part 81.

    XI. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

    • are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

    • will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    40 CFR Part 81

    Environmental protection, Air pollution control.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: December 23, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2017-00324 Filed 1-10-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Maritime Administration 46 CFR Part 393 [Docket Number MARAD-2016-0130] RIN 2133-AB84 Revision of the America's Marine Highway Program Regulations AGENCY:

    Maritime Administration, Department of Transportation.

    ACTION:

    Notice of Proposed Rulemaking.

    SUMMARY:

    This notice serves to inform interested parties and the public that the Maritime Administration (MARAD) proposes to revise in full Title 46 Part 393 of the Code of Federal Regulations, which concerns the America's Marine Highway Program (AMHP). This action is necessary to implement provisions of the Coast Guard and Maritime Transportation Act of 2012 (CGMTA), to improve AMHP processes and to streamline the regulations. MARAD solicits written comments on this proposed rulemaking.

    DATES:

    Comments must be received on or before March 13, 2017. MARAD will consider comments filed after this date to the extent practicable.

    ADDRESSES:

    You may submit comments identified by DOT Docket Number MARAD-2016-0130 by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Search MARAD-2016-0130 and follow the instructions for submitting comments.

    Email: [email protected] Include MARAD-2016-0130 in the subject line of the message.

    Mail/Hand-Delivery/Courier: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590. If you would like to know that your comments reached the facility, please enclose a stamped, self-addressed postcard or envelope.

    • The Docket Management Facility is open 9:00 a.m. to 5:00 p.m., Monday through Friday, except on Federal holidays.

    • You may view the public comments submitted on this rulemaking at http://www.regulations.gov. When searching for comments, please use the Docket ID: MARAD-2016-0130.

    Note:

    If you fax, mail or hand-deliver your input, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission. If you submit your inputs by mail or hand-delivery, they must be submitted in an unbound format, no larger than 8 1/2 by 11 inches, single-sided, suitable for copying and electronic filing.

    Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to the docket at www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the section entitled Public Participation.

    FOR FURTHER INFORMATION CONTACT:

    Tim Pickering, Office of Marine Highways and Passenger Services, at (202) 366-0704, or via email at [email protected]. You may send mail to Mr. Pickering at Office of Marine Highways and Passenger Services, 1200 New Jersey Avenue SE., Washington, DC 20590. If you have questions on viewing the Docket, call Docket Operations, telephone: (800) 647-5527.

    SUPPLEMENTARY INFORMATION: Background Information What laws authorize America's Marine Highway Program?

    The Energy Independence and Security Act of 2007 (EISA) authorized the Secretary of Transportation (Secretary) to promulgate regulations to implement the AMHP. The Secretary of Transportation delegated authority to the Maritime Administrator to issue AMHP implementing regulations. On April 9, 2010, MARAD published in the Federal Register final regulations implementing the AMHP (75 FR 18101).

    The Secretary, in consultation with the Environmental Protection Agency, submitted a Report to Congress in April 2011 that included a description of the benefits of the AMHP and activities conducted under the program. It also included recommendations for further legislative and administrative action that the Secretary considered appropriate.

    In December 2012, the Coast Guard and Maritime Transportation Act of 2012 (CGMTA), which built on some of the ideas in the report, was signed into law. The CGMTA expanded the scope of the AMHP by adding the words “or to promote short sea transportation” to the existing purpose of reducing landside congestion. This added language expanded the focus of the AMHP to include efforts that increase utilization or efficiency of short sea transportation on designated Marine Highway Routes.

    In November 2015, the National Defense Authorization Act for Fiscal Year 2016 added to the definition of short sea transportation, that is the subject of the AMHP, to include the carriage by a documented vessel of cargo that is: (1) shipped in discrete units, or packages that are handled individually, palletized; or, (2) unitized for purposes of transportation or freight vehicles carried aboard commuter ferry boats.

    Discussion Why and how is MARAD revising the regulations?

    As part of our routine systematic review of existing regulations, MARAD is updating its AMHP implementing regulations to conform to statutory changes and streamline the regulations for ease of use. Accordingly, the proposed rule revises in full the AMHP implementing regulations to: (1) Add “promote short sea shipping” as a purpose of the AMHP; (2) redesignate “corridors, connectors, and crossings” as used in the rule as “Routes” for purposes of simplicity; (3) expand and clarify the definition of AMHP-eligible cargo to include discrete units or packages that are handled individually, palletized, or unitized as well as freight vehicles carried aboard commuter ferry boats; (4) add a requirement for the project sponsors to provide updates on project status; (5) expand the eligibility criteria for services and Routes that may participate in AMHP; (6) clarify criteria for Project Designation; and, (7) reorganize the regulations for ease of use.

    What is the purpose of the AMHP?

    Congress authorized the AMHP to promote short sea shipping by designating routes, also called Marine Highways, as a way to relieve congestion on America's roads and railways. Marine Highway designations are intended to assist the maritime industry in meeting national freight transportation needs. The AMHP encourages the use of marine transportation to reduce freight and passenger travel delays caused by congestion, reduce greenhouse gas emissions, conserve energy, improve safety, and reduce landside infrastructure maintenance costs.

    Congestion on the U.S. surface transportation system significantly impacts America's economic prosperity and way of life. Overall, the U.S. Department of Transportation (USDOT) estimates that congestion on our roads, bridges, railways, and in ports costs the United States as much as $200 billion a year and projects that cargoes moving through our ports will nearly double over the next 15 years. Most of this additional cargo will ultimately move along our surface transportation corridors, many of which are already at or beyond capacity.

    Public Participation How do I submit comments on the proposed rule?

    Your comments must be written and in English. Include the docket number in your comments to ensure that your comments are correctly filed in the Docket. We encourage you to provide concise comments; however, you may attach additional documents as necessary. There is no limit on the length of the attachments. Please submit your comments, including the attachments, following the instructions provided under the above entitled heading ADDRESSES.

    MARAD will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, MARAD will also consider comments received after that date. If a comment is received too late for MARAD to consider in developing a final rule, MARAD will consider that comment as an informal suggestion for future rulemaking action.

    For access to the docket to read background documents, including those referenced in this document, or to submit or read comments received, go to the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Room W12-140, Washington, DC 20590. The Docket Management Facility is open 9:00 a.m. to 5:00 p.m., Monday through Friday, except on Federal holidays. To review documents, read comments or to submit comments, the docket is also available online at http://www.regulations.gov., keyword search MARAD-2016-0130.

    Please note that even after the comment period has closed, MARAD will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, MARAD recommends that you periodically check the Docket for new material.

    Will my comments be made available to the public?

    Before including your address, phone number, email address or other personal information in your comment, be aware that your entire comment, including your personal identifying information, may be made publicly available.

    May I submit comments confidentially?

    If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. When you send comments containing information claimed to be confidential information, you should include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.

    Procedural Matters and Required Determinations Privacy Act

    In accordance with 5 U.S.C. 553(c), USDOT solicits comments from the public to better inform its rulemaking process. USDOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/privacy. In order to facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.

    Executive Order 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review) and DOT Regulatory Policies and Procedures

    Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), supplemented by EO13563 (76 FR 3821, January 18, 2011) and USDOT policies and procedures, MARAD must determine whether a regulatory action is “significant,” and therefore subject to the Office of Management and Budget (OMB) review and the requirements of the Order. The Order defines “significant regulatory action” as one likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities. (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency. (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.

    MARAD has determined that this notice of proposed rulemaking is not considered a significant regulatory action under section 3(f) of E.O. 12866 and, therefore, it was not reviewed by OMB. This rulemaking will not result in an annual effect on the economy of $100 million or more. It is also not considered a major rule for purposes of Congressional review under Pub. L. 104-121. This rulemaking is also not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034, February 26, 1979). The costs and overall economic impact of this rulemaking do not require further analysis.

    Executive Order 13132 (Federalism)

    MARAD analyzed this rulemaking in accordance with the principles and criteria contained in E.O. 13132 (“Federalism”) and has determined that it does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. This rulemaking has no substantial effect on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. Nothing in this document preempts any State law or regulation. Therefore, MARAD was not required to consult with State and local officials.

    Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

    MARAD does not believe that this rulemaking will significantly or uniquely affect the communities of Indian tribal governments when analyzed under the principles and criteria contained in E.O. 13175 (Consultation and Coordination with Indian Tribal Governments); therefore, the funding and consultation requirements of this Executive Order do not apply.

    Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 requires MARAD to assess whether this rulemaking would have a significant economic impact on a substantial number of small entities and to minimize any adverse impact. MARAD certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities.

    Environmental Assessment

    MARAD has evaluated this proposed rule under Maritime Administrative Order (MAO) 600-1, “Procedures for Considering Environmental Impacts,” 50 FR 11606 (March 22, 1985), which guides the MARAD in complying with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. MARAD has determined that this proposed rule is not a major action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4.05 of MAO 600-1. Section 4.05 reads, in pertinent part, “[c]ategorical exclusions are Maritime Administration actions or groups of actions that do not have a significant effect on the quality of the human environment, individually or cumulatively. Categorical exclusions do not require preparation of environmental documents. Appendix 1 of this order describes the Maritime Administration's categorical exclusions.” This action falls under Categorical Exclusion #3 because MARAD proposes to promulgate “regulations . . . which do not require a regulatory impact analysis under section 3 of Executive Order 12291 or do not have a potential to cause a significant effect on the environment . . .” MAO 600-1, App.1, pg. 1.

    In accordance with section 4.05 and Appendix 2 of MAO 600-1, the Agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, MARAD finds that this proposed regulatory revision is not a major Federal action significantly affecting the quality of the human environment. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    Executive Order 13211 (Energy Supply, Distribution, or Use)

    MARAD has determined that this rulemaking will not significantly affect energy supply, distribution, or use. Therefore, no Statement of Energy Effects is required.

    Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminates ambiguity, and reduce burden.

    Executive Order 12630 (Taking of Private Property)

    This rulemaking will not affect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

    International Trade Impact Assessment

    This rulemaking is not expected to contain standards-related activities that create unnecessary obstacles to the foreign commerce of the United States.

    Privacy Impact Assessment

    Section 522(a)(5) of the Transportation, Treasury, Independent Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108-447, div. H, 118 Stat. 2809 at 3268) requires the USDOT and certain other Federal agencies to conduct a privacy impact assessment of each proposed rule that will affect the privacy of individuals. Claims submitted under this rule will be treated the same as all legal claims received by MARAD. The processing and treatment of any claim within the scope of this rulemaking by MARAD shall comply with all legal, regulatory and policy requirements regarding privacy.

    Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 requires Agencies to evaluate whether an Agency action would result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $141.3 million or more (as adjusted for inflation) in any 1 year, and if so, to take steps to minimize these unfunded mandates. This rulemaking will not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It will not result in costs of $141.3 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

    Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

    Paperwork Reduction Act

    We would evaluate any rule that might be promulgated to determine whether it would be expected to significantly change the current requirement for the collection of information.

    Clarity of These Regulations

    E.O. 12866 requires each Agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand. Including answers to questions such as the following:

    (1) Are the requirements in the proposed rule clearly stated?

    (2) Does the proposed rule contain technical language or terminology that interferes with its clarity?

    (3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphs, etc.) aid or reduce its clarity?

    (4) Would the rule be easier to understand if it were divided into more but shorter sections (a “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, “§ 393.21 Who can apply?”)

    (5) Is the description of the proposed rule in the SUPPLEMENTARY INFORMATION part of this preamble helpful in understanding the proposed rule?

    (6) What else could we do to make the proposed rule easier to understand? Send a copy of any comments that concern how we could make this proposed rule easier to understand to: Division of Legislation and Regulations, Department of Transportation, Maritime Administration, Office of the Chief Counsel, Room W24-220, 1200 New Jersey Ave. SE., Washington, DC 20590. You may also email the comments to this address: [email protected].

    List of Subjects 46 CFR Part 393

    America's Marine Highway Program—Short sea transportation, Marine highway route and project application and designation, Marine highway incentive, Research, Transportation.

    For the reasons stated in the preamble, the Maritime Administration proposes to revise 46 CFR part 393 to read as follows: PART 393—AMERICA'S MARINE HIGHWAY PROGRAM Subpart A—General Provisions 393.1 Special definitions. Subpart B—Marine Highway Program Designations 393.2 Marine Highway Routes. 393.3 Marine Highway Projects. Subpart C—Department of Transportation Efforts to Foster and Support America's Marine Highways 393.4 DOT Support for Planning Activities. 393.5 DOT Support for Marine Highway-Related Research. 393.6 America's Marine Highway Program Project Grants. Subpart A—General Provisions
    § 393.1 Special definitions.

    For the purposes of this part, when used in capitalized form:

    (a) Administrator means the Maritime Administrator, Maritime Administration, U.S. Department of Transportation USDOT. The Administrator is responsible for administering the America's Marine Highway Program (AMHP) and making route and project recommendations to the Secretary.

    (b) Department means the U.S. Department of Transportation.

    (c) Cargo on a Marine Highway service means goods transported in commerce and generally refers to, but is not limited by, the types and kinds of cargo that are described in the definition of “Short Sea Transportation”, below. Neither weight nor proportionality are considered under this definition. The term as used in this context is generally interchangeable with the term “Freight”, defined below.

    (d) Freight on a Marine Highway service means goods transported in commerce and generally refers to, but is not limited by, the types and kinds of cargo that are described in the definition of “Short Sea Transportation”, below. Neither weight nor proportionality are considered under this definition. The term as used in this context is generally interchangeable with the term “Cargo”, defined above.

    (e) Marine Highway Routes or Routes mean commercially navigable coastal, inland, and intracoastal waters of the United States as designated by the Secretary. This includes connections between U.S. ports and Canadian ports on the Great Lakes-Saint Lawrence Seaway System, and non-contiguous U.S. ports. Marine Highway Routes are a component of the Nation's surface transportation system. Each Marine Highway Route is described in terms of the specific landside transportation routes (road or railway) that it supplements or to which it connects. All previously designated Marine Highway “corridors,” “connectors,” and “crossings” are now designated as “Routes.”

    (f) Marine Highway Projects are planned or contemplated new services, or expansions of existing services, on designated Marine Highway Routes, that seek to provide new modal choices to shippers, reduce transportation costs, and/or provide public benefits, which include reduced air emissions, reduced road maintenance costs, and improved safety and resiliency impacts. Project Applicants propose projects and the Secretary may designate projects consistent with this part.

    (g) Project Applicant means a public entity withe operations, or administrative areas of responsibility, that are adjacent to or near the relevant Route that applies for designation of a Marine Highway Project pursuant to this part. Eligible applicants include State governments (including State departments of transportation), metropolitan planning organizations, port authorities and tribal governments.

    (h) Program Office means Office of Marine Highways and Passenger Services.

    (i) Route Sponsors are public entities with operations or administrative areas of responsibility that are adjacent to or related to the relevant Route that recommend a commercially navigable waterway for designation as a Marine Highway Route. Eligible Route Sponsors include State governments (including State departments of transportation), metropolitan planning organizations, port authorities, non-Federal navigation districts and tribal governments.

    (j) Secretary means the Secretary of Transportation.

    (k) Short Sea Transportation means the carriage by a U.S. documented vessel of cargo—

    (1) That is—

    (i) Contained in intermodal cargo containers and loaded by crane on the vessel;

    (ii) Loaded on the vessel by means of wheeled technology;

    (iii) Shipped in discrete units or packages that are handled individually, palletized, or unitized for purposes of transportation; or

    (iv) Freight vehicles carried aboard commuter ferry boats; and,

    (2) That is—

    (i) Loaded at a port in the United States and unloaded either at another port in the United States or at a port in Canada located in the Great Lakes-Saint Lawrence Seaway System; or,

    (ii) Loaded at a port in Canada located in the Great Lakes-Saint Lawrence Seaway System and unloaded at a port in the United States.

    (l) United States Documented Vessel means a vessel documented under 46 CFR part 67.

    Subpart B—Marine Highway Route and Project Designations
    § 393.2 Marine Highway Routes. (a) What are the minimum eligibility requirements for MARAD to recommend a Marine Highway Route for the Secretary to designate?

    (1) MARAD may recommend Marine Highway Routes that relieve landside congestion along coastal corridors or that promote short sea transportation; and,

    (2) That advance the objectives of the AMHP in paragraph (c) of this section.

    (b) When can a Route Sponsor request designation of a Marine Highway Route?

    (1) The Department accepts Marine Highway Route designation requests any time. Route Sponsors must submit designation requests through the Program Office.

    (2) The Maritime Administration publishes all designated Routes on its Web site. Go to http://www.marad.dot.gov and search “America's Marine Highways” to see the current list.

    (c) What should Route Sponsors consider when preparing Marine Highway Route designation requests?

    (1) Route Sponsors designation requests should explain how a proposed route will help achieve the following objectives:

    (i) Establishing Marine Highway Routes as extensions of the national surface transportation system;

    (ii) Developing multi-jurisdictional coalitions and partnerships that focus public and private efforts to improve reliability and resiliency of the Route for freight and passengers;

    (iii) Obtaining public benefits as described in paragraph (d)(1)(vi) of this section; and,

    (iv) Identifying potential savings that could be realized by providing an alternative to existing supply chains through short sea transportation.

    (2) [Reserved].

    (d) What information should Route Sponsors include in their designation requests?

    (1) One or more eligible Route Sponsors may submit Marine Highway Route designation requests to the Program Office. Designation requests should include the following information:

    (i) Physical Description of the Proposed Marine Highway Route. Describe the proposed Marine Highway Route, and its connection to existing or planned transportation infrastructure and intermodal facilities. Include key navigational factors such as available draft, channel width, bridge air draft or lock clearance, and any foreseeable impacts on navigation or commerce. When available, include one or more maps of the proposed Route.

    (ii) Surface Transportation Regions Served. (A) Land transportation routes that would benefit. Provide a summary of any land transportation route that the Marine Highway Route would benefit. Include a description of the route, its primary users, the nature, locations and occurrence of travel delays, urban areas affected, and other geographic or jurisdictional issues that impact its overall operation and performance.

    (B) U.S. Domestic Shipping Lane Served. For Marine Highway Routes that pass through waters outside U.S. territorial waters, provide a summary of the shipping routes or trade lanes that the Marine Highway Route would benefit. Include a description of the route, its primary users, the nature, locations and occurrence of travel delays, urban areas affected, and other geographic or jurisdictional issues that impact its overall operation and performance.

    (iii) Involved Parties. Provide the organizational structure of the Route Sponsors and supporters recommending the Route designation, including business affiliations and private sector stakeholders. Multi-jurisdictional coalitions may include State Departments of Transportation, metropolitan planning organizations, municipalities and other governmental entities (including tribal governments). Include the extent to which these entities have expressed support for the route designation and describe any affiliations with environmental groups or civic associations, or affiliations with any foreign interests.

    (iv) Volume and Characteristics. If authoritative data are available, provide the volume of passengers and/or cargo that are candidates for shifting to water transportation on the proposed Route. Otherwise provide estimates for this information, include identified shippers, manufacturers, distributors, and other entities that could benefit from a Marine Highway alternative, and the extent to which these entities have expressed support for the Marine Highway Route designation request.

    (v) Congestion Reduction. Describe the extent to which the proposed Route could relieve landside congestion in measurable terms, if applicable. Include any known offsetting land transportation infrastructure savings (either construction or maintenance) that would likely result from the Route, if applicable.

    (vi) Public benefits. Provide, if known, the net savings over status quo in emissions, including greenhouse gases, energy consumption, landside infrastructure maintenance costs, safety and system resiliency. Specify if the Marine Highway Route represents the most cost-effective option among other modal improvements. Include consideration of the implications future growth may have on the proposed Route.

    (vii) Public costs. If applicable and known, identify any costs that may result from designation of the route. If able, provide costs that are quantifiable such as the additional cost of emissions or energy consumption required to effectively leverage the benefits of the designated route. These costs should be a component in the net savings identified in (d)(6) above.

    (viii) Impediments. Describe known or anticipated obstacles to utilization of the proposed Marine Highway Route. Include any strategies, either in place or proposed, to deal with the impediments.

    (2) [Reserved].

    (e) How will the Program Office evaluate and recommend Marine Highway Route designation applications?

    (1) The Program Office will evaluate and recommend Route Designations based on an analysis and technical review of the information provided by the Route Applicant. The Maritime Administration will recommend Routes that receive a favorable technical review, and meet other criteria described in this part, for designation by the Secretary.

    (2) The Program Office may consider additional factors and may request supplemental information during the review process. USDOT will notify Route Applicants as to the status of their application in writing once the Secretary makes a determination.

    § 393.3 Marine Highway Projects. (a) What are the minimum eligibility requirements for MARAD to recommend a Marine Highway Project for the Secretary to designate?

    (1) MARAD may recommend only those Marine Highway Projects that will use U.S. documented vessels and mitigate landside congestion or promotes short sea transportation.

    (2) MARAD may recommend only those Marine Highway Projects that:

    (i) Involve the carriage of cargo in Short Sea Transportation as defined in subsection 393.1(k);

    (ii) Involve new or expand existing services for the carriage of cargo; and,

    (iii) Are on a designated Marine Highway Route.

    (3) Proposed Route Designations are accepted at any time, and may be submitted together with the proposed Project Designation.

    (4) Successful MARAD Project sponsors must demonstrate a direct connection between a proposed Marine Highway Project and the carriage of cargo through ports on Designated Marine Highway Routes.

    (b) When does the Program Office accept Marine Highway Project designation applications?

    (1) The Administrator will announce by notice in the Federal Register and on MARAD's AMHP Web site open season periods to allow Project Sponsors opportunities to submit Marine Highway Project designation applications.

    (2) [Reserved].

    (c) What should Project Applicants include when preparing a Marine Highway Project designation application?

    (1) The market or customer base to be served by the service and the service's value proposition to customers. This includes—

    (i) A description of how the market is currently served by transportation options;

    (ii) Identities of shippers that have indicated an interest in, and level of commitment to, the proposed service;

    (iii) Specific commodities, markets, and shippers the Project is expected to attract;

    (iv) Extent to which interested entities have been educated about the Project and expressed support, and,

    (v) A marketing strategy for the project if one exists.

    (2) Operational Framework. A description of the proposed operational framework of the project including origin/destination pairs, transit times, vessel types, and service frequency;

    (3) The cost model for the proposed service. The cost model should be broken down by container, trailer, or other freight unit, including loading and discharge costs, vessel operating costs, drayage costs, and other ancillary costs. Provide a comparison cost model outlining the current costs for transportation using landside mode (truck and rail) alternatives for the identified market that the proposed project will serve. Provide the project's financial plan and provide projected revenues and expenses. Include labor and operating costs, drayage, fixed and recurring infrastructure and maintenance costs, vessel or equipment acquisition or construction costs, etc. Include any anticipated changes in local or regional short sea transportation, policy or regulations, ports, industry, or other developments affecting the project. In the event that public sector financial support is being sought, describe the amount, form and duration of public investment required. Applicants may email [email protected] to request a sample cost model.

    (4) An overall quantification of the net public benefits estimated to be gained through the successful initiation of the Marine Highway Project, including highway miles saved, road maintenance savings, air emissions savings, and safety and resiliency impacts.

    (5) Marine Highway Route(s). Identify the designated Marine Highway Routes the Project will utilize.

    (6) Organization. Provide the organizational structure of the proposed project, including an outline of the business affiliations, environmental, non-profit organizations and governmental or private sector stakeholders.

    (7) Partnerships:—(i) Private sector partners. Identify private sector partners and describe their levels of commitment to the proposed service Private sector partners can include terminals, vessel operators, shipyards, shippers, trucking companies, railroads, third-party logistics providers, shipping lines, labor, workforce and other entities deemed appropriate by the Secretary.

    (ii) Public sector partners. Identify State Departments of Transportation, metropolitan planning organizations, municipalities and other governmental entities, including tribal entities, that Project Sponsors have engaged and the extent to which they support the service. Include any affiliations with environmental groups or civic associations.

    (iii) Documentation. Provide documents affirming commitment or support from entities involved in the project.

    (8) Public benefits. These measures reflect current law and are consistent with USDOT's Strategic Goals. Project Applicants should organize external net cost savings and public benefits of the Project based on the following six categories:

    (i) Emissions benefits. Address any net savings, in quantifiable terms, now and in the future, over current emissions practices, including greenhouse gas emissions, criteria air pollutants or other environmental benefits the project offers.

    (ii) Energy savings. Provide an analysis of potential net reductions in energy consumption, in quantifiable terms, now and in the future, over the current practice.

    (iii) Landside transportation infrastructure maintenance savings. To the extent the data is available indicate, in dollars per year, the projected net savings of public funds that would result in road or railroad maintenance or repair, including pavement, bridges, tunnels or related transportation infrastructure from a proposed project. Include the impacts of accelerated infrastructure deterioration caused by vehicles currently using the route, especially in cases of oversize or overweight vehicles. This information applies only to projects for a marine highway service where a landside alternative exists.

    (iv) Economic competitiveness. To the extent the data is available describe how the project will measurably result in transportation efficiency gains for the U.S. public. For purposes of aligning a project with this outcome, applicants should provide evidence of how improvements in transportation outcomes (such as time savings, operating cost savings, and increased utilization of assets) translate into long-term economic productivity benefits.

    (v) Safety improvements. Describe, in measurable terms, the projected safety improvements that would result from the proposed operation.

    (vi) System resiliency and redundancy. To the extent data is available describe, if applicable, how a proposed Marine Highway Project offers a resilient route or service that can benefit the public. Where land transportation routes serving a locale or region are limited, describe how a proposed project offers an alternative and the benefit this could offer when other routes are interrupted as a result of natural or man-made incidents.

    (9) Proposed Project Timeline. Include a proposed project timeline with estimated start dates and key milestones. If applicable, include the point in the timeline at which the enterprise is anticipated to attain self-sufficiency.

    (10) Support and Investment Required. Describe any known or anticipated obstacles to either implementation or long-term success of the project. Include any strategies, either in place or proposed, to mitigate impediments. Identify specific infrastructure gaps such as docks, cranes, ramps, etc. that will need to be addressed in order for the project to become economically viable. Include estimates for the required investments needed to address the infrastructure gaps.

    (11) Environmental Considerations. Applicants must provide all information necessary to assist MARAD's environmental analysis of the propose project, pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and other environmental requirements.

    (e) How will the Program Office evaluate and recommend Marine Highway Project applications for designation?

    (1) The Program Office will evaluate and recommend for designation by the Secretary those Projects based on an analysis and technical review of the information provided by the Project Applicant. MARAD will recommend Projects that operate on a designated Marine Highway Route, receive a favorable technical review, and meet other criteria described in this part, for designation by the Secretary.

    (2) The Program Office may consider additional factors and may request supplemental information during the review process. USDOT will notify Project Applicants as to the status of their application in writing once the Secretary makes a determination.

    (f) How will MARAD support designated America's Marine Highway Projects?

    (1) Upon designation as a Marine Highway Project, the Department Program Office will coordinate with the Project Applicants to identify the most appropriate departmental actions to support the project. USDOT support could include any of the following, as appropriate and subject to agency resources:

    (i) Promote the service with appropriate governmental, regional, State, local or tribal government transportation planners, private sector entities or other decision makers to the extent permitted by law.

    (ii) Coordinate with ports, State Departments of Transportation, metropolitan planning organizations, localities, other public agencies and the private sector to support the designated service. Efforts can be aimed at identifying resources, obtaining access to land or terminals, developing landside facilities and infrastructure, and working with Federal, regional, State, local or Tribal governmental entities to remove barriers to success.

    (iii) Pursue commitments from Federal entities to transport Federally owned or generated cargo using the services of the designated project, when practical or available.

    (iv) In cases where transportation infrastructure is needed, Project Applicants may request to be included on the Secretary's list of high-priority transportation infrastructure projects under EO 13274, “Environmental Stewardship and Transportation Infrastructure Project Review.”

    (v) Assist with developing individual performance measures for Marine Highway Projects.

    (vi) Work with Federal entities and regional, State, local and tribal governments to include designated Projects in transportation planning.

    (vii) Coordinate with public and private entities to resolve impediments to the success of Marine Highway Projects.

    (viii) Conduct research on issues specific to Marine Highway Projects.

    (ix) Advise Route Sponsors on the availability of various Federal funding mechanisms to support the Projects.

    (x) Maintain liaison with Sponsors and representatives of designated Projects to provide ongoing support and identify lessons learned and best practices for other projects and the overall Marine Highway program.

    (2) [Reserved].

    (g) How will the Department protect confidential information?

    (1) If your application, including attachments, includes information that you consider to be a trade secret or confidential commercial or financial information, or otherwise exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552), as implemented by the Department at 49 CFR part 7, you may assert a claim of confidentiality.

    (2) What should I do if I believe my project designation application contains confidential or business sensitive information?

    (i) Note on the front cover that the submission “Contains Confidential Business Information (CBI);”

    (ii) Mark each affected page “CBI;” and

    (iii) Clearly highlight or otherwise denote the CBI portions. The USDOT protects such information from disclosure to the extent allowed under applicable law.

    (3) What will happen if information related to my project designation application is the subject of a request under the Freedom of Information Act (FOIA)? We will apply the procedures contained in 49 CFR part 7 to a request from non-Federal third-parties for information related to documents you submit under this part. We will consider your claim of confidentiality at the time someone requests the information under FOIA. Only information that is ultimately determined to be confidential under that procedure will be exempt from disclosure under FOIA.

    (h) Is there a specific format required for project designation applications and attached documents?

    (1) When responding to specific solicitations for Marine Highway Projects by the Program Office, applicants should include all of the information requested by paragraph (c) above organized in a manner consistent with the elements set forth in that section. The Program Office reserves the right to ask any applicant to supplement the data in its application, but expects applications to be complete upon submission. The narrative portion of an application should not exceed 20 pages in length. Documentation supporting the assertions made in the narrative portion may also be provided in the form of appendices, but limited to relevant information. Applications may be submitted electronically via the Federal Register (http://www.regulations.gov). Applications submitted in writing must include the original and three copies and must be on 8.5″ x 11″ single spaced paper, excluding maps, Geographic Information Systems (GIS) representations, etc.

    (2) In the event that the sponsor of a Marine Highway Project that has already been designated by the Secretary seeks a modification to the designation because of a change in project scope, an expansion of the project, or other significant change to the project, the project applicant should request the change in writing to the Secretary via the Maritime Administrator. The request must contain any changed or new information that is relevant to the project.

    (i) What does the Program Office do to ensure designated projects are developing properly?

    (1) Once designated projects enter the operational phase (either start of a new service, or expansion of existing service), the Program Office will evaluate them regularly to determine if the project is likely to achieve its objectives.

    (2) Overall project performance will be assessed according to three categories-exceeds, meets, or does not meet original projections in each of the three areas defined below:

    (i) Public benefit. Does the project meet the stated goals in shifting specific numbers of vehicles (number of trucks, rail cars or automobiles) off the designated landside routes? The Program Office will assume other public benefits, including energy savings, reduced emissions, and safety improvements to be a direct derivative of either numbers of vehicles reduced, or vehicle/ton miles avoided, unless specific factors change (such as a change in vessel fuel or emissions).

    (ii) Public cost. Is the overall cost to the Federal Government (if any) on track with estimates at the time of designation? The overall cost to the Federal Government represents the amount of Federal investment (i.e., direct funding, loan guarantees or similar mechanisms) reduced by the offsetting savings the project represents (road/bridge wear and tear avoided, infrastructure construction or expansion deferred).

    (iii) Timeliness factor. Is the project on track for the point at which the enterprise is projected to attain self-sufficiency? For example, if the project was anticipated to attain self-sufficiency after 36 months of operation, is it on track at the point of evaluation to meet that objective? This can be determined by assessing revenues, cargo and passenger trends, expenses and other factors established in the application review process.

    (j) Can a project designation expire or be terminated?

    (1) Project Designations are effective for a period of five years, or until the date the project is completed, or MARAD cancels the designation. Project Designation will expire after three years of inactivity.

    (2) Project Sponsors wishing to extend a Project Designation must submit an updated application no later than six months before the five-year designation period ends. Applicants who no longer wish to maintain project designation may submit a request to the Secretary to revoke their designation.

    Subpart C—Department of Transportation Efforts to Foster and Support America's Marine Highways
    § 393.4 DOT Support for Planning Activities. (a) How does DOT provide support?

    (1) The Program Office engages in coordination and Planning Activities with Federal, State, local and tribal governments and planning and private entities organizations to encourage the use of designated Marine Highway Routes and Projects. These activities include:

    (i) Works with these entities to assess plans and develop strategies, where appropriate, to incorporate Marine Highway transportation and other short sea transportation solutions to their statewide and metropolitan transportation plans, including the Statewide Transportation Improvement Programs and State Freight Plans.

    (ii) Facilitates groups of States and multi-State transportation entities to determine how Marine Highway transportation can address port congestion, traffic delays, bottlenecks, and other interstate transportation challenges to their mutual benefit.

    (iii) Identifies other Federal agencies that have jurisdiction over services, or which currently provide funding for components of services, in order to determine which agencies should be consulted and assist in the coordination process.

    (iv) Organizes the Department's modal administrations, including Federal Highway Administration, Federal Motor Carrier Safety Administration, Federal Railroad Administration, Saint Lawrence Seaway Development Corporation, and Federal Transit Administration, as appropriate, for support and to evaluate costs and benefits of proposed Marine Highway Routes and Projects.

    § 393.5 DOT Support for Marine Highway-Related Research. (a) How does DOT support research?

    (1) The Program Office works in consultation with public and private entities as appropriate, within the limits of available resources, to identify impediments, develop incentives, and conduct innovative research, in support of the America's Marine Highway Program or in direct support of specific designated Marine Highway Routes and Projects. The primary objectives of selected research projects are to:

    (i) Identify markets, cargoes, and service parameters that could facilitate the development of new or expanded Marine Highway Services.

    (ii) Identify existing or emerging technology, vessel design, infrastructure designs, and other improvements that would reduce emissions, increase fuel economy, and lower costs of Marine Highway transportation and increase the efficiency of intermodal transfers.

    (iii) Identify impediments to the establishment of Marine Highway services.

    (iv) Identify incentives to increase the use and efficiency of Marine Highway services.

    (b) The Secretary, in consultation with the Administrator of the Environmental Protection Agency, may conduct research on short sea transportation regarding:

    (1) The environmental and transportation benefits to be derived from short sea transportation alternatives for other forms of transportation;

    (2) Technology, vessel design, and other improvements that would reduce emissions, increase fuel economy, and lower costs of short sea transportation and increase the efficiency of intermodal transfers; and

    (3) Solutions to impediments to short sea transportation projects designated.

    § 393.6 America's Marine Highway Program Project Grants. (a) How does MARAD administer the AMHP grant program?

    (1) The Associate Administrator for Intermodal Systems Development manages the program under the guidance and the immediate administrative direction of the Maritime Administrator.

    (2) MARAD establishes grant program priorities as reflected in its grant opportunity announcements and, from time-to-time, issues clarifying guidance documents through the MARAD Web site and the Federal Register.

    (3) The Administrator makes funding recommendations to the Secretary, who has the authority to award grants.

    (b) How does MARAD make grant opportunities known?

    (1) MARAD determines which grant opportunities it will offer, and establishes application deadlines, and programmatic requirements when grant funds become available to the AMHP.

    (2) The MARAD staff prepares Notice of Funding Opportunity (NOFO) announcements consisting of all information necessary to apply for each grant and publishes the announcement in the Federal Register and on grants.gov.

    (3) The MARAD staff publishes notice of each announcement on http://grants.gov, a Federal government Web site widely available to the public.

    (c) How may an applicant apply for an AMHP grant?

    (1) Applicants may apply for a grant using grants.gov or, in connection with a Federal Register announcement, by submitting the necessary information to the AMHP Office in electronic form.

    (2) [Reserved].

    (Authority: Pub. L. 110-140, title XI, subtitle C sections 1121-1123, 121 Stat. 1494; Pub. L. 112-213, title IV, section 405, 126 Stat. 1541; 49 CFR 1.92 and 1.93(a), 46 U.S.C. 55601, 55604, 55605)

    By Order of the Maritime Administrator.

    T. Mitchell Hudson, Jr., Secretary, Maritime Administration.
    [FR Doc. 2017-00249 Filed 1-10-17; 8:45 am] BILLING CODE 4910-81-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, 15, 25, 30, and 101 [GN Docket No. 14-177, IB Docket Nos. 15-256 and 97-95, WT Docket No. 10-112; Report No. 3065] Petitions for Reconsideration of Action in Rulemaking Proceeding AGENCY:

    Federal Communications Commission.

    ACTION:

    Petition for reconsideration; correction.

    SUMMARY:

    The Federal Communications Commission (Commission) published a document in the Federal Register of December 30, 2016, concerning petitions for reconsideration filed in the Commission's rulemaking proceeding. The date for filing replies was incorrect. This document corrects the filing deadline date for replies to an opposition to the Petitions.

    FOR FURTHER INFORMATION CONTACT:

    John Schauble, Wireless Telecommunications Bureau, (202) 418-0797; email: [email protected].

    Correction

    In the Federal Register of December 30, 2016, in FR Doc. 2016-31709, on page 96415, in the first column, correct the DATES section to read:

    DATES:

    Oppositions to the Petitions must be filed on or before January 17, 2017. Replies to an opposition must be filed on or before January 27, 2017.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2017-00342 Filed 1-10-17; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 25 [IB Docket No. 16-408; FCC 16-170] Updates Concerning Non-Geostationary, Fixed-Satellite Service Systems and Related Matters AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Federal Communications Commission proposes to update, clarify, and streamline its rules to facilitate the deployment of recently proposed non-geostationary-satellite orbit (NGSO), fixed-satellite service (FSS) satellite systems.

    DATES:

    Comments are due February 27, 2017. Reply comments are due March 27, 2017.

    ADDRESSES:

    You may submit comments, identified by IB Docket No. 16-408, by any of the following methods:

    Federal Communications Commission's Web site: http://apps.fcc.gov/ecfs. Follow the instructions for submitting comments.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Clay DeCell, 202-418-0803.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 16-170, adopted December 14, 2016, and released December 15, 2016. The full text of the NPRM is available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-170A1.pdf. The NPRM is also available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities, send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    Comment Filing Requirements

    Interested parties may file comments and reply comments on or before the dates indicated in the DATES section above. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

    Electronic Filers. Comments may be filed electronically using the Internet by accessing the ECFS, http://apps.fcc.gov/ecfs.

    Paper Filers. Parties who file by paper must include an original and four copies of each filing.

    Filings may be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    ○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

    ○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    ○ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    Persons with Disabilities. To request materials in accessible formats for persons with disabilities (braille, large print, electronic files, audio format), or to request reasonable accommodations for filing comments (accessible format documents, sign language interpreters, CART, etc.), send an email to [email protected] or call 202-418-0530 (voice) or 202-418-0432 (TTY).

    Ex Parte Presentations

    Pursuant to 47 CFR 1.1200(a), this proceeding will be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 47 CFR 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    Paperwork Reduction Act

    This document contains proposed new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    Synopsis

    In this NPRM, we propose revisions to certain of the Commission's rules and policies governing satellite services, prompted by a planned new generation of large NGSO FSS systems. We propose to update, clarify, and streamline our rules to facilitate the deployment of NGSO FSS systems, which have the capability to provide services, including Internet access, to underserved communities worldwide. We also propose to update certain rules governing operation of FSS space stations in the geostationary-satellite orbit (GSO) to enable greater operational flexibility.

    Ka-Band Plan

    Proposal Overview. In light of decisions waiving the plan for the Ka-band, or the 17.7-20.2 GHz and 27.5-30 GHz bands, and to promote more flexible use of the spectrum, we propose to reinstate certain secondary FSS use in the 17.8-20.2 GHz band and to allow new FSS operations in the 19.3-19.4 GHz, 19.6-19.7 GHz, and 29.3-29.5 GHz bands. This proposal would codify existing practices and formally enable the spectrum use proposed by NGSO FSS broadband constellations currently pending before the Commission. It would further make available for FSS systems spectrum currently designated for, but never used by, NGSO mobile-satellite service (MSS) feeder links.

    17.8-18.3 GHz. We propose to create a new secondary allocation to the FSS in the 17.8-18.3 GHz band, subject to protections for the primary fixed service (FS). We anticipate that the power flux-density (PFD) limits established by the International Telecommunication Union (ITU) for protection of the FS by the FSS in the 17.7-18.3 GHz band are also sufficient to protect U.S. terrestrial fixed users, without generally requiring coordination. This has long been the case in the 3700-4200 MHz band, for example, in which FSS space stations operate on a co-primary basis with FS terrestrial stations, are not typically coordinated with terrestrial operators, and are subject to ITU PFD limits codified in 47 CFR 25.208(a). And the United States participated actively in the development of ITU PFD limits in the 17.8-18.3 GHz band, with input from U.S. terrestrial operators.

    Thus, we are no longer concerned about coordination and delay concerns that the Commission expressed in 2000. The Commission did not discuss the adequacy of any PFD limits in this context. And, both NGSO FSS and GSO FSS systems have been successfully authorized to operate in this band by waiver on an unprotected, non-interference basis with respect to the FS. We also note that WorldVu Satellites Limited, d/b/a OneWeb, has filed a petition for declaratory ruling to access the U.S. market in the 17.8-18.6 GHz band using its proposed system of 720 NGSO satellites. Accordingly, and to promote additional operational flexibility, we propose to adopt a secondary allocation to the FSS (space-to-Earth) in the 17.8-18.3 GHz band currently designated solely for the FS. Both GSO FSS and NGSO FSS operations would be permitted under this secondary FSS allocation. Non-Federal FSS operations would also be secondary to primary Federal FSS operations in this band. We intend to limit this allocation to individually licensed earth stations, which are more likely than ubiquitously deployed user terminals to be able to operate successfully on an unprotected basis with respect to primary FS stations. We also propose to include in our rules the international PFD limits on space stations in this band. Finally, to promote compatibility among FSS systems, we propose to authorize NGSO FSS systems in this band only on an unprotected, non-interference basis with respect to GSO FSS networks. We seek comment on these proposals. As indicated above, we anticipate that PFD limits established by the ITU, with significant involvement of the United States, will be adequate to protect U.S. fixed users from interference. However, we seek comment on these PFD limits. In the unlikely event that harmful interference did occur to an FS station, we expect that the FS operator would attempt to locate and contact the source of the interference, or seek assistance from the Commission. We seek comment on this issue.

    18.3-18.6 GHz and 19.7-20.2 GHz. We also propose to allow NGSO FSS systems to operate on an unprotected basis with respect to GSO FSS networks in the 18.3-18.6 GHz and 19.7-20.2 GHz bands, subject to limits on equivalent power flux-density (EPFD) to ensure protection of GSO FSS networks, as explained below. We do not propose to extend NGSO FSS operation to the 18.6-18.8 GHz band, in which GSO FSS networks are also currently designated co-primary, due to concerns of protection for the coequal Earth exploration-satellite service (passive) and the space research service (passive). As we concluded for operations in the 10.7-14.5 GHz band, which is available for licensing of both GSO and NGSO FSS systems, we anticipate that compliance with EPFD limits applicable internationally will be sufficient to protect GSO FSS networks from unacceptable interference, by generally limiting NGSO FSS operations near the geostationary orbit. Permitting NGSO FSS operations in the 18.3-18.6 GHz and 19.7-20.2 GHz bands would also be consistent with waivers issued on d