Federal Register Vol. 82, No.89,

Federal Register Volume 82, Issue 89 (May 10, 2017)

Page Range21677-21911
FR Document

82_FR_89
Current View
Page and SubjectPDF
82 FR 21911 - Continuation of the National Emergency With Respect to the Central African RepublicPDF
82 FR 21909 - Continuation of the National Emergency With Respect to the Actions of the Government of SyriaPDF
82 FR 21905 - Continuation of the National Emergency With Respect to YemenPDF
82 FR 21903 - Public Service Recognition Week, 2017PDF
82 FR 21901 - National Hurricane Preparedness Week, 2017PDF
82 FR 21790 - Bayer CropScience LP.; Availability of Draft Environmental Assessment, Plant Pest Risk Similarity Assessment, Preliminary Finding of No Significant Impact, and Preliminary Decision for an Extension of a Determination of Nonregulated Status of Canola Genetically Engineered for Male Sterility and Glufosinate-Ammonium ResistancePDF
82 FR 21717 - Tolerances and Exemptions for Pesticide Chemical Residues in FoodPDF
82 FR 21697 - State and Local AssistancePDF
82 FR 21816 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
82 FR 21816 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
82 FR 21745 - Safety Zone; Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NYPDF
82 FR 21816 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
82 FR 21816 - Notice of Agreements FiledPDF
82 FR 21830 - Public Comment on Draft, Updated Submission GuidelinesPDF
82 FR 21817 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
82 FR 21834 - Information Collection: Licensing Requirements for Land Disposal of Radioactive WastePDF
82 FR 21742 - Safety Zone; Hurricanes and Other Disasters in South FloridaPDF
82 FR 21877 - Quarterly Publication of Individuals, Who Have Chosen To Expatriate, as Required by Section 6039GPDF
82 FR 21877 - Art Advisory Panel-Notice of Availability of Report of 2016 Closed MeetingsPDF
82 FR 21789 - Notice of Request for Extension of Approval of an Information Collection; Environmental MonitoringPDF
82 FR 21694 - Revision of Freedom of Information Act Regulation; CorrectionPDF
82 FR 21815 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
82 FR 21788 - Petitions for Reconsideration and/or Clarification of Action in Rulemaking ProceedingPDF
82 FR 21718 - Promoting Diversification of Ownership in the Broadcasting ServicesPDF
82 FR 21871 - Notice of Intent To Rule on Request To Release Airport Property at Walnut Ridge Regional Airport, Walnut Ridge, ArkansasPDF
82 FR 21850 - Self-Regulatory Organizations; The Depository Trust Company; National Securities Clearing Corporation; Notice of Filing of and No Objection To Advance Notices, as Modified by Amendments No. 1, To Renew the Credit FacilityPDF
82 FR 21835 - Advisory Committee on Reactor Safeguards; Meeting of the ACRS Subcommittee on Digital Instrumentation & Control Systems; Notice of MeetingPDF
82 FR 21831 - South Carolina Electric & Gas Company; South Carolina Public Service Authority, Virgil C. Summer Nuclear Station, Units 2 and 3, Nuclear Instrumentation System Excore Detector Surface, Material Inspection ClarificationPDF
82 FR 21832 - LaCrosse Solutions, LLC; Dairyland Power Cooperative; La Crosse Boiling Water ReactorPDF
82 FR 21819 - Nerve Agents and Certain Insecticides (Organophosphorus and/or Carbamate) CountermeasuresPDF
82 FR 21872 - Household Goods (HHG) Consumer Protection Working Group Third Public MeetingPDF
82 FR 21814 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
82 FR 21811 - Uniform Formulary Beneficiary Advisory Panel; Notice of Federal Advisory Committee MeetingPDF
82 FR 21747 - Use of Medicare Procedures To Enter Into Provider Agreements for Extended Care ServicesPDF
82 FR 21813 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of VermontPDF
82 FR 21812 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of ColoradoPDF
82 FR 21836 - New Postal ProductsPDF
82 FR 21695 - Safety Zone, Chicago Harbor, Navy Pier East, Chicago, ILPDF
82 FR 21896 - Solicitation of Nominations for Appointment to the Advisory Committee on Minority VeteransPDF
82 FR 21818 - Draft Revisions to the Food and Drug Administration Blueprint for Prescriber Education for Extended-Release and Long-Acting Opioids; AvailabilityPDF
82 FR 21679 - Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Operation Without Normal Electrical PowerPDF
82 FR 21681 - Special Conditions: Textron Aviation Inc. Model 700 Airplane; Design Roll Maneuver ConditionPDF
82 FR 21827 - Certain Network Devices, Related Software and Components Thereof (II); Commission Final Determination of Violation of Section 337; Termination of Investigation; Issuance of Limited Exclusion Order and Cease and Desist OrderPDF
82 FR 21791 - Gulf of Mexico Fishery Management Council; Public MeetingsPDF
82 FR 21809 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
82 FR 21809 - New England Fishery Management Council, Public HearingsPDF
82 FR 21792 - New England Fishery Management Council; Public MeetingPDF
82 FR 21685 - Freedom of Information Act; Miscellaneous RulesPDF
82 FR 21761 - Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure InvestmentPDF
82 FR 21810 - Determination Under the Textile and Apparel Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA-DR Agreement”)PDF
82 FR 21836 - Information Collection Request Submission for OMB ReviewPDF
82 FR 21837 - Self-Regulatory Organizations; The Depository Trust Company; Order Granting Approval of Proposed Rule Change To Establish a Sub-Account for Use With the DTCC Euroclear Global Collateral Ltd Collateral Management Service and Provide for the Authorization of a Representative To Receive Information About the Sub-AccountPDF
82 FR 21863 - Self-Regulatory Organizations; National Securities Clearing Corporation; Order Approving Proposed Rule Change To Describe the Illiquid Charge That May Be Imposed on MembersPDF
82 FR 21866 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Compression ForumsPDF
82 FR 21858 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 4703 (Order Attributes)PDF
82 FR 21860 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 4702 (Order Types) and Rule 4703 (Order Attributes)PDF
82 FR 21855 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the MIAX PEARL Fee SchedulePDF
82 FR 21839 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of Proposed Rule Change, as Modified by Amendment Nos. 3 and 4, To List and Trade Shares of the Hartford Global Impact NextSharesTMPDF
82 FR 21843 - Self-Regulatory Organizations; NYSE MKT LLC; Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 1, To Adopt New Equity Trading Rules To Transition Trading on the Exchange From a Floor-Based Market With a Parity Allocation Model to a Fully Automated Market With a Price-Time Priority Model on the Exchange's New Trading Technology Platform, PillarPDF
82 FR 21830 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
82 FR 21793 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Mukilteo Multimodal Construction Project in Washington StatePDF
82 FR 21722 - Endangered and Threatened Wildlife and Plants; Final Rule to List 6 Foreign Species of Elasmobranchs Under the Endangered Species ActPDF
82 FR 21677 - Hispanic-Serving Agricultural Colleges and UniversitiesPDF
82 FR 21826 - National Library of Medicine Amended; Notice of MeetingPDF
82 FR 21825 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingsPDF
82 FR 21827 - National Cancer Institute; Notice of Closed MeetingsPDF
82 FR 21825 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 21742 - National Organic Program (NOP); Organic Livestock and Poultry Practices Second Proposed RulePDF
82 FR 21677 - National Organic Program (NOP); Organic Livestock and Poultry PracticesPDF
82 FR 21696 - Security Zone; Portland Rose Festival on Willamette RiverPDF
82 FR 21789 - Notice of Request for Extension of a Currently Approved Information CollectionPDF
82 FR 21877 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel RAIN BIRD; Invitation for Public CommentsPDF
82 FR 21874 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel OVERTIME; Invitation for Public CommentsPDF
82 FR 21873 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ENTROPY; Invitation for Public CommentsPDF
82 FR 21875 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel CAROLINE; Invitation for Public CommentsPDF
82 FR 21874 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BOATEL; Invitation for Public CommentsPDF
82 FR 21875 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BLACK LION; Invitation for Public CommentsPDF
82 FR 21873 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BIG GAME; Invitation for Public CommentsPDF
82 FR 21876 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel APOLLO; Invitation for Public CommentsPDF
82 FR 21829 - Aerospace Safety Advisory Panel MeetingPDF
82 FR 21696 - Designation of Agent To Receive Notification of Claimed InfringementPDF
82 FR 21751 - Air Plan Approval; Kentucky; Infrastructure Requirements for the 2012 PM2.5PDF
82 FR 21711 - Determinations of Attainment by the Attainment Date, Determinations of Failure To Attain by the Attainment Date and Reclassification for Certain Nonattainment Areas for the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality StandardsPDF
82 FR 21706 - Air Quality Plans; Tennessee; Infrastructure Requirements for the 2012 PM2.5PDF
82 FR 21697 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Removal of Stage II Gasoline Vapor Recovery Requirements for Gasoline Dispensing FacilitiesPDF
82 FR 21703 - Air Plan Approval; Indiana; Commissioner's Order for SABIC Innovative PlasticsPDF
82 FR 21749 - Approval and Revision of Air Quality Implementation Plans; State of New York; Regional Haze State and Federal Implementation PlansPDF
82 FR 21748 - Air Plan Approval; Indiana; Commissioner's Orders for SABIC Innovative PlasticsPDF
82 FR 21708 - Air Plan Approval; Indiana; Commissioner's Order for Carmeuse Lime, Inc.PDF
82 FR 21749 - Air Plan Approval; Indiana; Commissioner's Order for Carmeuse Lime, Inc.PDF
82 FR 21683 - Airworthiness Directives; Airbus Helicopters Deutschland GmbH HelicoptersPDF
82 FR 21694 - New Animal Drugs; Withdrawal of Approval of a New Animal Drug ApplicationPDF
82 FR 21688 - New Animal Drugs; Approval of New Animal Drug Applications; Withdrawal of Approval of New Animal Drug Applications; Changes of SponsorshipPDF
82 FR 21835 - Nuclear Waste Technical Review Board; MeetingPDF
82 FR 21780 - FCC Seeks Comment and Data on Actions To Accelerate Adoption and Accessibility of Broadband-Enabled Health Care Solutions and Advanced TechnologiesPDF
82 FR 21811 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Air Pollution Regulations for Outer Continental Shelf (OCS) ActivitiesPDF

Issue

82 89 Wednesday, May 10, 2017 Contents Agricultural Marketing Agricultural Marketing Service RULES National Organic Program: Organic Livestock and Poultry Practices, 21677 2017-09409 PROPOSED RULES National Organic Program: Organic Livestock and Poultry Practices, 21742 2017-09410 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

National Institute of Food and Agriculture

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21789 2017-09406
Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Environmental Monitoring, 21789-21790 2017-09467 Environmental Assessments; Availability, etc.: Bayer CropScience LP.; Plant Pest Risk Similarity Assessment, etc., 21790-21791 2017-09499 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21816-21818 2017-09478 2017-09482 Coast Guard Coast Guard RULES Safety Zones: Chicago Harbor, Navy Pier East, Chicago, IL, 21695-21696 2017-09444 Security Zones: Portland Rose Festival on Willamette River, 21696 2017-09408 PROPOSED RULES Safety Zones: Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NY, 21745-21747 2017-09483 Hurricanes and Other Disasters in South Florida, 21742-21745 2017-09476 Commerce Commerce Department See

National Oceanic and Atmospheric Administration

Committee Implementation Committee for the Implementation of Textile Agreements NOTICES Product Addition under the Dominican Republic-Central America-United States Free Trade Agreement, 21810-21811 2017-09430 Copyright Office Copyright Office, Library of Congress RULES Designation of Agent to Receive Notification of Claimed Infringement, 21696-21697 2017-09395 Defense Department Defense Department NOTICES Meetings: Uniform Formulary Beneficiary Advisory Panel, 21811 2017-09450 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Determinations of Attainment by the Attainment Date, Determinations of Failure to Attain by the Attainment Date and Reclassification for Certain Nonattainment Areas for the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality Standards, 21711-21717 2017-09391 Indiana; Commissioner's Order for Carmeuse Lime, Inc., 21708-21711 2017-09382 Indiana; Commissioner's Order for SABIC Innovative Plastics, 21703-21706 2017-09385 Tennessee; Infrastructure Requirements for the 2012 PM2.5 National Ambient Air Quality Standard, 21706-21708 2017-09390 Virginia; Removal of Stage II Gasoline Vapor Recovery Requirements for Gasoline Dispensing Facilities, 21697-21703 2017-09387 State and Local Assistance; CFR Correction, 21697 2017-09486 Tolerances and Exemptions for Pesticide Chemical Residues in Food; CFR Correction, 21717 2017-09487 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Indiana; Commissioner's Order for Carmeuse Lime, Inc., 21749 2017-09381 Indiana; Commissioner's Orders for SABIC Innovative Plastics, 21748-21749 2017-09383 Kentucky; Infrastructure Requirements for the 2012 PM2.5 National Ambient Air Quality Standard, 21751-21761 2017-09392 New York; Regional Haze State and Federal Implementation Plans, 21749-21751 2017-09384 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pollution Regulations for Outer Continental Shelf Activities, 21811-21812 2017-09168 Cross-Media Electronic Reporting: Authorized Program Revision Approval, Colorado, 21812-21813 2017-09447 Authorized Program Revision Approval, Vermont, 21813-21814 2017-09448 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Helicopters Deutschland GmbH Helicopters, 21683-21685 2017-09373 Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Operation without Normal Electrical Power, 21679-21681 2017-09441 Textron Aviation Inc. Model 700 Airplane; Design Roll Maneuver Condition, 21681-21683 2017-09440 NOTICES Airport Property Releases: Walnut Ridge Regional Airport, Walnut Ridge, AR, 21871-21872 2017-09460 Federal Communications Federal Communications Commission RULES Promoting Diversification of Ownership in the Broadcasting Services, 21718-21722 2017-09461 PROPOSED RULES Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 21761-21780 2017-09431 Actions to Accelerate Adoption and Accessibility of Broadband-Enabled Health Care Solutions and Advanced Technologies, 21780-21788 2017-09309 Petitions for Reconsideration and/or Clarification of Action in Rulemaking Proceeding, 21788 2017-09462 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21814-21815 2017-09453 2017-09464 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 21816 2017-09481 Federal Motor Federal Motor Carrier Safety Administration NOTICES Meetings: Household Goods Consumer Protection Working Group, 21872-21873 2017-09454 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 21816 2017-09484 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 21816 2017-09485 Federal Trade Federal Trade Commission RULES Freedom of Information Act; Miscellaneous Rules, 21685-21687 2017-09432 Food and Drug Food and Drug Administration RULES New Animal Drugs: Approval of New Animal Drug Applications; Withdrawal of Approval of New Animal Drug Applications; Changes of Sponsorship, 21688-21694 2017-09364 Withdrawal of Approval of a New Animal Drug Application, 21694 2017-09365 NOTICES Draft Revisions to the Food and Drug Administration Blueprint for Prescriber Education for Extended-Release and Long-Acting Opioids; Availability, 21818-21819 2017-09442 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Declarations: Nerve Agents and Certain Insecticides (Organophosphorus and/or Carbamate) Countermeasures, 21819-21825 2017-09455
Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department RULES Revision of Freedom of Information Act Regulation; Correction, 21694-21695 2017-09465 Internal Revenue Internal Revenue Service NOTICES Meetings: Art Advisory Panel, 21877 2017-09468 Quarterly Publication of Individuals, Who Have Chosen To Expatriate, 21877-21896 2017-09475 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Network Devices, Related Software and Components Thereof (II), 21827-21829 2017-09439 Library Library of Congress See

Copyright Office, Library of Congress

Maritime Maritime Administration NOTICES Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel APOLLO, 21876-21877 2017-09398 Vessel BIG GAME, 21873-21874 2017-09399 Vessel BLACK LION, 21875 2017-09400 Vessel BOATEL, 21874-21875 2017-09401 Vessel CAROLINE, 21875-21876 2017-09402 Vessel ENTROPY, 21873 2017-09403 Vessel OVERTIME, 21874 2017-09404 Vessel RAIN BIRD, 21877 2017-09405 NASA National Aeronautics and Space Administration NOTICES Meetings: Aerospace Safety Advisory Panel, 21829-21830 2017-09397 National Archives National Archives and Records Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21830 2017-09418 National Institute Food National Institute of Food and Agriculture RULES Hispanic-Serving Agricultural Colleges and Universities, 21677-21679 2017-09415 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 21825-21826 2017-09411 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 21825 2017-09413 National Cancer Institute, 21827 2017-09412 National Library of Medicine, 21826-21827 2017-09414 National Oceanic National Oceanic and Atmospheric Administration RULES Endangered and Threatened Species: Final Rule to List 6 Foreign Species of Elasmobranchs Under the Endangered Species Act, 21722-21741 2017-09416 NOTICES Meetings: Gulf of Mexico Fishery Management Council, 21791-21792 2017-09437 2017-09438 Mid-Atlantic Fishery Management Council, 21809-21810 2017-09436 New England Fishery Management Council, 21792-21793, 21809 2017-09433 2017-09434 2017-09435 Takes of Marine Mammals Incidental to Specified Activities: Mukilteo Multimodal Construction Project in Washington State, 21793-21808 2017-09417 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Licensing Requirements for Land Disposal of Radioactive Waste, 21834-21835 2017-09477 Exemptions and Combined Licenses: LaCrosseSolutions, LLC; Dairyland Power Cooperative La Crosse Boiling Water Reactor, 21832-21834 2017-09456 South Carolina Electric and Gas Co.; South Carolina Public Service Authority, Virgil C. Summer Nuclear Station, Units 2 and 3, Nuclear Instrumentation System Excore Detector Surface Material Inspection Clarification, 21831-21832 2017-09457 Meetings: Advisory Committee On Reactor Safeguards Subcommittee on Digital Instrumentation and Control Systems, 21835 2017-09458 Nuclear Waste Technical Nuclear Waste Technical Review Board NOTICES Meetings, 21835-21836 2017-09344 Peace Peace Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21836 2017-09428 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 21836-21837 2017-09445 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Hurricane Preparedness Week (Proc. 9606), 21899-21902 2017-09632 Public Service Recognition Week (Proc. 9607), 21903-21904 2017-09634 ADMINISTRATIVE ORDERS Central African Republic; Continuation of National Emergency (Notice of May 9, 2017), 21911 2017-09656 Syria; Continuation of National Emergency (Notice of May 9, 2017), 21907-21910 2017-09653 Yemen; Continuation of National Emergency (Notice of May 8, 2017), 21905 2017-09635 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 21866-21871 2017-09424 Depository Trust Co.; National Securities Clearing Corp., 21850-21854 2017-09459 MIAX PEARL, LLC, 21855-21858 2017-09421 NASDAQ BX, Inc., 21858-21860 2017-09423 National Securities Clearing Corp., 21863-21866 2017-09425 NYSE MKT LLC, 21843-21850 2017-09419 The Depository Trust Co., 21837-21839 2017-09426 The NASDAQ Stock Market LLC, 21839-21843, 21860-21863 2017-09420 2017-09422 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Maritime Administration

Treasury Treasury Department See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department PROPOSED RULES Use of Medicare Procedures to Enter Into Provider Agreements for Extended Care Services; Withdrawal, 21747-21748 2017-09449 NOTICES Requests for Nominations: Advisory Committee on Minority Veterans, 21896-21897 2017-09443 Separate Parts In This Issue Part II Presidential Documents, 21899-21905 2017-09632 2017-09634 2017-09635 Part III Presidential Documents, 21907-21911 2017-09656 2017-09653 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 89 Wednesday, May 10, 2017 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Doc. No. AMS-NOP-15-0012; NOP-15-06] RIN 0581-AD44 National Organic Program (NOP); Organic Livestock and Poultry Practices AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule; delay of effective date.

SUMMARY:

The United States Department of Agriculture's Agricultural Marketing Service (AMS) is delaying the effective date of the rule published on January 19, 2017, for an additional six months to November 14, 2017, to allow time for further consideration by USDA. The effective date for this rule was initially March 20, 2017, and was subsequently delayed to May 19, 2017, by a document published in the Federal Register on February 9, 2017. The final rule amends the organic livestock and poultry production requirements by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions.

DATES:

The effective date of the final rule published on January 19, 2017 (82 FR 7042), delayed until May 19, 2017, on February 9, 2017 (82 FR 9967), is further delayed until November 14, 2017.

FOR FURTHER INFORMATION CONTACT:

Paul Lewis, Ph.D., Director, Standards Division. Telephone: (202) 720-3252; Fax: (202) 260-9151.

SUPPLEMENTARY INFORMATION:

Consistent with the memorandum of January 20, 2017, to the heads of executive departments and agencies from the Assistant to the President and Chief of Staff, entitled, “Regulatory Freeze Pending Review,” on February 9, 2017, AMS delayed the effective date of the final rule, Organic Livestock and Poultry Practices, that was published in the Federal Register on January 19, 2017 (82 FR 7042) to May 19, 2017.

Because there are significant policy and legal issues addressed within the final rule that warrant further review by USDA, AMS is further delaying the effective date of this rule by 180 days to November 14, 2017. In addition, AMS will publish a proposed rule that solicits public comments on the direction that USDA should take with respect to the rule. The public will have a 30-day comment period to specify whether USDA should: (1) Let the rule become effective, (2) suspend the rule indefinitely, (3) delay the effective date of the rule further, or (4) withdraw the rule.

The rule amends the organic livestock and poultry production requirements of the USDA organic regulations by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions. The rule finalizes a proposed rule that AMS published in the Federal Register on April 13, 2016, 81 FR 21955.

To the extent that 5 U.S.C. 553(b)(A) applies to this action, it is exempt from notice and comment for good cause and the reasons cited above. AMS finds that notice and solicitation of comment regarding the brief extension of the effective date for the final regulation are impracticable, unnecessary, or contrary to the public interest pursuant to 5 U.S.C. 553(b)(B). The delay of the effective date until November 14, 2017, should give AMS sufficient time to receive and consider public comments and take action on the disposition of the rule. AMS also believes that affected entities need to be informed as soon as possible of the extension and its length in order to plan and adjust their implementation process accordingly.

Dated: May 4, 2017. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2017-09409 Filed 5-9-17; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE National Institute of Food and Agriculture 7 CFR Part 3434 RIN 0524-AA39 Hispanic-Serving Agricultural Colleges and Universities AGENCY:

National Institute of Food and Agriculture (NIFA), USDA.

ACTION:

Final rule.

SUMMARY:

This rule updates the list of institutions that are granted Hispanic-Serving Agricultural Colleges and Universities (HSACU) certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2016, and ending September 30, 2017.

DATES:

This rule is effective May 10, 2017 and applicable beginning October 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Lisa Read; Policy Analyst; National Institute of Food and Agriculture; U.S. Department of Agriculture, STOP 2272, 1400 Independence Avenue SW., Washington, DC 20250-2272; Voice: 202-731-1366; Fax: 202-401-7752; Email: [email protected]

SUPPLEMENTARY INFORMATION:

HSACU Institutions for Fiscal Year 2017

This rule makes changes to the existing list of institutions in Appendix B of 7 CFR part 3434. The list of institutions is amended to reflect the institutions that are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2016, and ending September 30, 2017.

Certification Process

As stated in 7 CFR 3434.4, an institution must meet the following criteria to receive HSACU certification: (1) Be a Hispanic-Serving Institution (HSI), (2) offer agriculture-related degrees, (3) not appear on the Excluded Parties List System (EPLS), (4) be accredited, and (5) award at least 15% of agriculture-related degrees to Hispanic students over the two most recent academic years.

NIFA obtained the latest report from the U.S. Department of Education's National Center for Education Statistics that lists all HSIs and the degrees conferred by these institutions (completion data) during the 2014-15 academic year. NIFA used this report to identify HSIs that conferred a degree in an instructional program that appears in Appendix A of 7 CFR part 3434 and to confirm that over the 2013-14 and 2014-15 academic years at least 15% of the degrees in agriculture-related fields were awarded to Hispanic students. NIFA further confirmed that these institutions were nationally accredited and were not on the exclusions listing in the System for Award Management (https://www.sam.gov/portal/SAM/##11).

The updated list of HSACUs is based on (1) completions data from 2013-14 and 2014-15, and (2) enrollment data from Fall 2015. NIFA identified 104 institutions that met the eligibility criteria to receive HSACU certification for FY 2017 (October 1, 2016 to September 30, 2017).

Declaration of Intent To Apply for NLGCA Designation

As set forth in Section 7101 of the Agricultural Act of 2014 (Pub. L. 113-79), which amends 7 U.S.C. 3103, an institution that is eligible to be designated as an HSACU may notify the Secretary of its intent not to be considered an HSACU. To opt out of designation as an HSACU, an authorized official at the institution must submit a declaration of intent not to be considered an HSACU to NIFA by email at [email protected] In accordance with Section 7101, a declaration by an institution not to be considered an HSACU shall remain in effect until September 30, 2018. Institutions that opt out of HSACU designation will have the option to apply for designation as a Non-Land Grant College of Agriculture (NLGCA) institution. To be eligible for NLGCA designation, institutions must be public colleges or universities offering baccalaureate or higher degrees in the study of food and agricultural sciences, as defined in 7 U.S.C. 3103. An online form to request NLGCA designation is available at http://nifa.usda.gov/webform/request-non-land-grant-college-agriculture-designation.

In FYs 2015, 2016 and 2017 five institutions opted out of their HSACU designation and received NLGCA designation, hence they are excluded from the FY 2017 HSACU list.

Appeal Process

As set forth in 7 CFR 3434.8, NIFA will permit HSIs that are not granted HSACU certification to submit an appeal within 30 days of the publication of this notice.

Classification

This rule relates to internal agency management. Accordingly, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register. This rule also is exempt from the provisions of Executive Order 12866. This action is not a rule as defined by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., or the Congressional Review Act, 5 U.S.C. 801 et seq., and thus is exempt from the provisions of those Acts. This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 3434

Administrative practice and procedure; Agricultural research, Education, Extension; Hispanic-Serving Institutions; Federal assistance.

Accordingly, part 3434 of Title 7 of the Code of Federal Regulations is amended as set forth below:

PART 3434—HISPANIC-SERVING AGRICULTURAL COLLEGES AND UNIVERSITIES CERTIFICATION PROCESS 1. The authority citation for part 3434 continues to read as follows: Authority:

7 U.S.C. 3103.

2. Revise appendix B to part 3434 to read as follows: Appendix B to Part 3434—List of HSACU Institutions, 2016-2017

The institutions listed in this appendix are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2016, and ending September 30, 2017. Institutions are listed alphabetically under the state of the school's location, with the campus indicated where applicable.

Arizona (5) Arizona Western College Central Arizona College Cochise County Community College Phoenix College Pima Community College California (40) Allan Hancock College Antioch University—Los Angeles Bakersfield College California Baptist University California Lutheran University Chaffey College College of the Desert College of the Sequoias Cuyamaca College El Camino Community College District Fullerton College Golden West College Hartnell College Imperial Valley College Long Beach City College Los Angeles Pierce College Merced College MiraCosta College Modesto Junior College Mt San Antonio College Mt San Jacinto Community College District National University Orange Coast College Pacific Union College Porterville College Reedley College Santa Ana College San Bernardino Valley College San Diego City College San Diego Mesa College San Diego State University San Francisco State University San Jose State University Saint Mary's College of California Southwestern College University of La Verne Victor Valley College West Hills College—Coalinga Whittier College Woodland Community College Colorado (2) Community College of Denver Trinidad State Junior College Florida (3) Broward College Florida International University Miami Dade College Illinois (1) Dominican University Kansas (2) Dodge City Community College Seward County Community College and Area Technical School Massachusetts (1) Springfield Technical Community College Nevada (1) Truckee Meadows Community College New Jersey (3) Essex County College Montclair State University Saint Peter's University New Mexico (10) Central New Mexico Community College Eastern New Mexico University—Main Campus Eastern New Mexico University—Ruidoso Campus Mesalands Community College New Mexico Highlands University New Mexico Institute of Mining and Technology Northern New Mexico College Santa Fe Community College Western New Mexico University University of New Mexico—Los Alamos Campus New York (4) CUNY City College CUNY LaGuardia Community College Mercy College SUNY Westchester Community College Oregon (1) Chemeketa Community College Puerto Rico (10) Instituto Tecnologico de Puerto Rico—Recinto de Manati Inter American University of Puerto Rico—Aguadilla Inter American University of Puerto Rico—Bayamon Inter American University of Puerto Rico—Metro Inter American University of Puerto Rico—San German Inter American University of Puerto Rico—Ponce Pontifical Catholic University of Puerto Rico—Ponce Universidad Del Este Universidad Del Turabo Universidad Metropolitana Texas (18) Houston Community College Palo Alto College Saint Edwards's University San Antonio College Southwest Texas Junior College St. Mary's University Texas State Technical College Texas State University The University of Texas—Pan American The University of Texas at Brownsville The University of Texas at El Paso The University of Texas Rio Grande Valley The University of Texas at San Antonio University of Houston University of Houston—Clear Lake University of the Incarnate Word University of St. Thomas Western Texas College Washington (3) Heritage University Wenatchee Valley College Yakima Valley Community College
Done in Washington, DC, this 1st day of May 2017. Sonny Ramaswamy, Director, National Institute of Food and Agriculture.
[FR Doc. 2017-09415 Filed 5-9-17; 8:45 am] BILLING CODE 3410-22-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2017-0319; Special Conditions No. 25-668-SC] Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Operation Without Normal Electrical Power AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Embraer S.A. (Embraer) Model ERJ 190-300 series airplanes. These airplanes will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features are electrical and electronic systems that perform critical functions, the loss of which could be catastrophic to the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Embraer S.A. on May 10, 2017. We must receive your comments by June 26, 2017.

ADDRESSES:

Send comments identified by docket number FAA-2017-0319 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

Hand Delivery or Courier: Take comments to 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.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478).

Docket: Background documents or comments received 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:

Stephen Slotte, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2315; facsimile 425-227-1320.

SUPPLEMENTARY INFORMATION:

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplanes.

In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds it unnecessary to delay the effective date and finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On September 13, 2013, Embraer applied for an amendment to type certificate (TC) no. A57NM to include the new Model ERJ 190-300 airplane. This airplane, which is a derivative of the ERJ 190-100 STD currently approved under TC no. A57NM, is a 94- to 114-passenger transport category airplane with two Pratt & Whitney Model PW1900G engines and a new wing design with a high aspect ratio and raked wingtip.

Type Certification Basis

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Embraer must show that the Model ERJ 190-300 airplane meets the applicable provisions of the regulations listed in type certificate no. A57NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. Embraer must show that the Model ERJ 190-300 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-137.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model ERJ 190-300 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel design features, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model ERJ 190-300 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Novel or Unusual Design Features

The Model ERJ 190-300 airplane will incorporate the following novel or unusual design features: Electrical and electronic systems that perform critical functions, the loss of which may result in loss of flight controls and other critical systems and may be catastrophic to the airplane.

Discussion

The Model ERJ 190-300 airplane has a fly-by-wire flight control system that requires a continuous source of electrical power in order to maintain an operable flight control system. Section 25.1351(d), Operation without normal electrical power, requires safe operation in visual flight rule (VFR) conditions for at least five minutes after loss of normal electrical power excluding the battery. This rule was structured around a traditional design using mechanical control cables and linkages for flight control. These manual controls allowed the crew to maintain aerodynamic control of the airplane for an indefinite period of time after loss of all electrical power. Under these conditions, a mechanical flight control system provided the crew with the ability to fly the airplane while attempting to identify the cause of the electrical failure, restart engine(s) if necessary, and attempt to re-establish some of the electrical power generation capability.

A critical assumption in § 25.1351(d) is that the airplane is in VFR conditions at the time of the failure. This is not a valid assumption in today's airline operating environment where airplanes fly much of the time in instrument meteorological conditions on air traffic control defined flight paths. Another assumption in the existing rule is that the loss of all normal electrical power is the result of the loss of all engines. The five-minute period in the rule is to allow at least one engine to be restarted following an all-engine power loss in order to continue the flight to a safe landing. However, service experience on airplane models with similar electrical power system architecture as the airplane has shown that at least the temporary loss of all electrical power for causes other than all-engine failure is not extremely improbable.

To maintain the same level of safety envisioned by the existing rule with traditional mechanical flight controls, the Model ERJ 190-300 airplane design must not be time-limited in its operation under all reasonably foreseeable conditions, including loss of all normal sources of engine or auxiliary power unit (APU)-generated electrical power. Unless Embraer can show that the non-restorable loss of the engine and APU power sources is extremely improbable, Embraer must demonstrate that the airplanes can maintain safe flight and landing (including steering and braking on the ground for airplanes using steer/brake-by-wire and/or fly-by-wire speed brake panels) with the use of its emergency/alternate electrical power systems. These electrical power systems, or the minimum restorable electrical power sources, must be able to power loads that are essential for continued safe flight and landing, including those required for the maximum length of approved flight diversion.

Applicability

As discussed above, these special conditions are applicable to the Model ERJ 190-300 airplanes. Should Embraer apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Embraer Model ERJ 190-300 airplanes.

In lieu of 14 CFR 25.1351(d) the following special conditions apply:

1. The applicant must show by test or a combination of test and analysis that the airplane is capable of continued safe flight and landing with all normal electrical power sources inoperative, as prescribed by paragraphs 1.a. and 1.b., below. For purposes of these special conditions, normal sources of electrical power generation do not include any alternate power sources such as the battery, ram air turbine, or independent power systems such as the flight control permanent magnet generating system. In showing capability for continued safe flight and landing, the applicant must account for systems capability, effects on crew workload and operating conditions, and the physiological needs of the flightcrew and passengers for the longest diversion time for which the applicant is seeking approval.

a. In showing compliance with this requirement, the applicant must account for common-cause failures, cascading failures, and zonal physical threats.

b. The applicant may consider the ability to restore operation of portions of the electrical power generation and distribution system if it can be shown that unrecoverable loss of those portions of the system is extremely improbable. The design must provide an alternative source of electrical power for the time required to restore the minimum electrical power generation capability required for safe flight and landing. The applicant may exclude unrecoverable loss of all engines when showing compliance with this requirement.

2. Regardless of any electrical generation and distribution system recovery capability shown under paragraph 1 of these special conditions, sufficient electrical system capability must be provided to:

a. Allow time to descend, with all engines inoperative, at the speed that provides the best glide distance, from the maximum operating altitude to the top of the engine restart envelope, and

b. Subsequently allow multiple start attempts of the engines and auxiliary power unit (APU). The design must provide this capability in addition to the electrical capability required by existing part 25 requirements related to operation with all engines inoperative.

3. The airplane emergency electrical power system must be designed to supply:

a. Electrical power required for immediate safety, which must continue to operate without the need for crew action following the loss of the normal electrical power, for a duration sufficient to allow reconfiguration to provide a non-time-limited source of electrical power.

b. Electrical power required for continued safe flight and landing for the maximum diversion time.

4. If the applicant uses APU-generated electrical power to satisfy the requirements of these special conditions, and if reaching a suitable runway for landing is beyond the capacity of the battery systems, then the APU must be able to be started under any foreseeable flight condition prior to the depletion of the battery or the restoration of normal electrical power, whichever occurs first. Flight test must demonstrate this capability at the most critical condition.

a. The applicant must show that the APU will provide adequate electrical power for continued safe flight and landing.

b. The operating limitations section of the airplane flight manual (AFM) must incorporate non-normal procedures that direct the pilot to take appropriate actions to activate the APU after loss of normal engine-driven generated electrical power.

5. As part of showing compliance with these special conditions, the tests to demonstrate loss of all normal electrical power must also take into account the following:

a. The assumption that the failure condition occurs during night instrument meteorological conditions (IMC) at the most critical phase of the flight, relative to the worst possible electrical power distribution and equipment-loads-demand condition.

b. After the un-restorable loss of normal engine generator power, the airplane engine restart capability is provided and operations continued in IMC.

c. The airplane is demonstrated to be capable of continued safe flight and landing. The length of time must be computed based on the maximum diversion time capability for which the airplane is being certified. The applicant must account for airspeed reductions resulting from the associated failure or failures.

d. The airplane must provide adequate indication of loss of normal electrical power to direct the pilot to the non-normal procedures, and the operating limitations section of the AFM must incorporate non-normal procedures that will direct the pilot to take appropriate actions.

Issued in Renton, Washington, on May 2, 2017. Michael Kaszycki, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2017-09441 Filed 5-9-17; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2017-0215; Special Conditions No. 25-669-SC] Special Conditions: Textron Aviation Inc. Model 700 Airplane; Design Roll Maneuver Condition AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Textron Aviation Inc. (Textron) Model 700 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is an electronic flight-control system that provides control through pilot inputs to the flight computer. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Textron on May 10, 2017. We must receive your comments by June 26, 2017.

ADDRESSES:

Send comments identified by docket number FAA-2017-0215 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

Hand Delivery or Courier: Take comments to 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.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478)

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to 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:

Greg Schneider, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2116; facsimile 425-227-1320.

SUPPLEMENTARY INFORMATION:

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.

In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds it unnecessary to delay the effective date and finds tthat good cause exists for making these special conditions effective upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On November 20, 2014, Textron applied for a type certificate for their new Model 700 airplane. The Model 700 airplane is low-wing, pressurized, turbofan-powered executive jet airplane with seating for two crewmembers and up to 12 passengers. This airplane will have two Honeywell AS907-2-1S turbofan engines and a maximum takeoff weight of 38,514 pounds.

Type Certification Basis

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Textron must show that the Model 700 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-139, 25-141, and 25-143.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Textron Model 700 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model 700 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36. The FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

Novel or Unusual Design Features

The Model 700 airplane will incorporate the following novel or unusual design feature: An electronic flight-control system that provides control through pilot inputs to the flight computer.

Discussion

The roll control system uses both ailerons and flight spoilers. The aileron control system is a fully mechanical system, and the flight spoilers are fly-by-wire. Section 25.349 specifies roll maneuver load conditions that are based on aileron deflection, rather than control-wheel deflection. By specifying the load conditions in terms of aileron deflection, the current requirement does not address electronic flight controls that cause nonlinearities and other loads caused by spoilers. Since this type of system affects flight loads, and therefore the structural capability of the airplane, special conditions are necessary to address these effects.

These special conditions differ from current requirements in that they require the actuation of the cockpit roll control, as opposed to the aileron itself, to perform the roll maneuver. Also, these special conditions require an additional load condition at VA, in which the cockpit roll control is returned to neutral following the initial roll input.

These special conditions differ from similar special conditions applied to previous similar technologies. These special conditions are limited to the roll axis only, whereas previous special conditions also included the pitch and yaw axes. Special conditions are no longer necessary for the pitch or yaw axes because Amendment 25-91 takes into account the effects of an electronic flight-control system in those axes (§ 25.331 for pitch and § 25.351 for yaw).

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the Textron Model 700 airplane. Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only one novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Aviation Inc. Model 700 airplanes.

In lieu of compliance with § 25.349(a), the following conditions, speeds, and cockpit roll control motions (except as the motions may be limited by pilot effort) must be considered in combination with an airplane load factor of zero and of two-thirds of the positive maneuvering factor used in design. In determining the resulting control-surface deflections, the torsional flexibility of the wing must be considered in accordance with § 25.301(b):

1. Conditions corresponding to steady rolling velocities must be investigated. In addition, conditions corresponding to maximum angular acceleration must be investigated for airplanes with engines or other weight concentrations outboard of the fuselage. For the angular-acceleration conditions, zero rolling velocity may be assumed in the absence of a rational time history investigation of the maneuver.

2. At VA, sudden movement of the cockpit roll control up to the limit is applied. The position of the cockpit roll control must be maintained until a steady roll rate is achieved, and then must be returned suddenly to the neutral position.

3. At VC, the cockpit roll control must be moved suddenly and maintained so as to achieve a roll rate not less than that obtained in paragraph 2.

4. At VD, the cockpit roll control must be moved suddenly and maintained so as to achieve a roll rate not less than one third of that obtained in paragraph 2.

Issued in Renton, Washington, on April 24, 2017. Michael Kaszycki, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2017-09440 Filed 5-9-17; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6436; Directorate Identifier 2015-SW-037-AD; Amendment 39-18869; AD 2017-09-07] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters Deutschland GmbH Helicopters AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB-BK117 C-2 helicopters. This AD requires inspecting the pilot collective wiring harness and was prompted by a report that the heat-shrinkable sleeve prevented the twist grip on the collective from being fully engaged during a flight test. The actions of this AD are intended to prevent an unsafe condition on these products.

DATES:

This AD is effective June 14, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of June 14, 2017.

ADDRESSES:

For service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at https://www.airbushelicopters.com/techpub/FO/scripts/myFO_login.php. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6436.

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-2016-6436; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the European Aviation Safety Agency (EASA) AD, any incorporated-by-reference service information, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

SUPPLEMENTARY INFORMATION: Discussion

On December 7, 2016, at 81 FR 88143, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters MBB-BK 117 C-2 helicopters, serial numbers 9004 through 9708. The NPRM proposed to require visually inspecting the pilot collective wiring harness for proper installation of the heat-shrinkable and transparent sleeves. The proposed requirements were intended to detect an incorrectly installed heat-shrinkable sleeve on the collective lever wiring harness, which if not corrected, could result in chafing of the wiring and subsequent failure of the hoist cable cutter or emergency landing gear flotation systems.

The NPRM was prompted by AD No. 2015-0144, dated July 21, 2015, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model MBB-BK117 C-2 helicopters, up to serial number 9708. EASA advises that, during a flight test, the pilot could not fully engage a twist grip on a Model MBB-BK117 C-2 helicopter. According to EASA, further investigation found a transparent sleeve on the collective lever wiring harness damaged because of incorrect installation of the heat-shrinkable sleeve. This condition, if not detected and corrected, could result in chafing of the harness, leading to the malfunction of the affected systems, EASA advises. EASA consequently requires a one-time inspection of the heat-shrinkable and transparent sleeves installed on the collective lever wiring harness.

Comments

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM.

FAA's Determination

These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

Differences Between This AD and the EASA AD

The compliance time in the EASA AD is based on whether the helicopter has an externally mounted hoist or emergency flotation system. This AD requires compliance within 100 hours time-in-service for all applicable helicopters.

Related Service Information Under 1 CFR Part 51

We reviewed Airbus Helicopters Alert Service Bulletin ASB MBB-BK117 C-2-88A-010, Revision 1, dated April 16, 2015 (ASB), which specifies a visual inspection of the heat-shrinkable sleeve for correct position. If the sleeve's position is incorrect, the ASB specifies shortening the sleeve. If there is any damage, the ASB calls for replacing the damaged parts.

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 113 helicopters of U.S. Registry and that labor costs average $85 a work hour.

• Inspecting the pilot collective wiring harness for the correct position of the heat-shrinkable sleeve requires 1.5 work hours. No parts are required for a total cost of $128 per helicopter and $14,464 for the U.S. fleet.

• Replacing or repairing the sleeves requires 5.5 work hours, and parts cost $10, for a total cost of $478 per helicopter.

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 helicopters 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.

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

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): 2017-09-07 Airbus Helicopters Deutschland GmbH: Amendment 39-18869; Docket No. FAA-2016-6436; Directorate Identifier 2015-SW-037-AD. (a) Applicability

This AD applies to Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB-BK 117 C-2 helicopters, serial numbers 9004 through 9708, certificated in any category.

(b) Unsafe Condition

This AD defines the unsafe condition as an incorrectly installed heat-shrinkable sleeve on the collective lever wiring harness. This condition could result in chafing of the wiring and subsequent failure of the hoist cable cutter or emergency landing gear flotation systems.

(c) Effective Date

This AD becomes effective June 14, 2017.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

Within 100 hours time-in-service, remove the pilot collective lever and visually inspect the pilot collective lever wiring harness for proper installation of the heat-shrinkable sleeve and transparent sleeve and for damage in accordance with paragraph 3.B.2.1 and as depicted in Figure 2 of Airbus Helicopters Alert Service Bulletin MBB-BK117 C-2-88A-010, Revision 1, dated April 16, 2015 (ASB).

(1) If the heat-shrinkable sleeve and transparent sleeve are installed as depicted in Figure 2 of the ASB and there is no damage, install the collective lever in accordance with paragraphs 3.B.2.3.a through 3.B.2.3.f of the ASB.

(2) If the heat-shrinkable sleeve or transparent sleeve is installed as depicted in Figure 3, Detail B of the ASB, alter the heat-shrinkable sleeve as depicted in Figure 3, Detail C.

(3) If the transparent sleeve is damaged as depicted in Figure 4, Detail D of the ASB, replace the heat-shrinkable sleeve, transparent sleeve, and identification sleeve. Replace any wire that has a nick, scratch, cut, or is frayed.

(f) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.

(g) Additional Information

The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015-0144, dated July 21, 2015. You may view the EASA AD on the Internet at http://www.regulations.gov in Docket No. FAA-2016-6436.

(h) Subject

Joint Aircraft Service Component (JASC) Code: Wheel/Ski/Float/Emergency Equipment, 3246/2560.

(i) Material Incorporated by Reference

(1) The Director of the Federal Register approved the incorporation by reference 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) Airbus Helicopters Alert Service Bulletin MBB-BK117 C-2-88A-010, Revision 1, dated April 16, 2015.

(ii) Reserved.

(3) For Airbus Helicopters service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at https://www.airbushelicopters.com/techpub/FO/scripts/myFO_login.php.

(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

(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 Fort Worth, Texas, on April 27, 2017. Scott A. Horn, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 2017-09373 Filed 5-9-17; 8:45 am] BILLING CODE 4910-13-P
FEDERAL TRADE COMMISSION 16 CFR Part 4 Freedom of Information Act; Miscellaneous Rules AGENCY:

Federal Trade Commission (FTC).

ACTION:

Final rule.

SUMMARY:

The Federal Trade Commission is implementing provisions of the FOIA Improvement Act of 2016 by amending the regulation governing fees the agency may assess to offset the cost of disseminating information and records to the public. The FTC is also making other clarifying changes and updates to the fee regulation.

DATES:

These amendments are effective May 10, 2017.

FOR FURTHER INFORMATION CONTACT:

G. Richard Gold, Attorney, (202) 326-3355, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

In a document previously published in the Federal Register, 81 FR 93861 (Dec. 22, 2016), the Federal Trade Commission, as required by the Freedom of Information Act (FOIA), sought comments on proposed revisions to its fee regulation. See 5 U.S.C. 552(a)(4)(A)(i). The FTC proposed to change its fee schedule to implement the FOIA Improvement Act of 2016 (the “2016 FOIA Amendments”) 1 as appropriate and to revise the regulation to account for other fee-related changes.2

1 On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, Public Law 114-185, amending the Freedom of Information Act (FOIA), 5 U.S.C. 552. The new law addresses a range of procedural issues and places additional limitations on assessing search fees (or, for requesters with preferred fee status, duplication fees) if an agency's response time to a requester is delayed.

2 On December 22, 2016, the FTC also implemented a final rule that incorporated other parts of the 2016 FOIA Amendments. 81 FR 93804. Pursuant to 5 U.S.C. 553, these changes did not require public comment.

A. Public Comments

The FTC received two comments in response to the proposed rule changes: one from Hartley Rathaway and one from the Reporters Committee for Freedom of the Press (“Reporters Committee”).3

3See https://www.ftc.gov/policy/public-comments/initiative-691 for links to each comment.

Comment by Hartley Rathaway

The comment from Hartley Rathaway argues that “it is [not] fair that the government should force the citizenry to bear the costs of seeing the truth. Cut spending on wars, cut subsidies for the oligarchs, and then put that money toward uses like these. Charging us fees for information is unjust.” The FTC understands this concern and notes that most agency FOIA responses do not impose any costs on the requester. For example, members of the public are entitled to two hours of free search time and 100 free pages, and are not charged for review time.4 Other requester categories (including Educational, Non-commercial Scientific Institution, or News Media) are not charged for search or review time, and are also entitled to 100 free pages.5 The FTC also waives fees if the total chargeable fees for a request are under $25.00.6 Finally, the Commission may produce releasable records without any charge or at a charge reduced below the established fees if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and is not primarily in the commercial interest of the requester.7 Requesters are required to provide support for a fee waiver or reduction request, or a request to be granted status in one of the noncommercial requester categories.

4 16 CFR 4.8(b).

5Id.

6 16 CFR 4.8(b)(4).

7 16 CFR 4.8(e).

Additionally, the FTC follows FOIA statutory language and Office of Management and Budget (“OMB”) directives to recoup allowable direct costs. The Freedom of Information Reform Act of 1986 (“FOIA Reform Act”) charged the OMB with responsibility for promulgating, pursuant to notice and comment, guidelines containing a uniform schedule of fees for individual agencies to follow when promulgating their FOIA fee regulations. 5 U.S.C. 552(a)(4)(A)(i). On March 27, 1987, the OMB issued its Uniform Freedom of Information Act Fee Schedule and Guidelines (OMB Fee Guidelines) but also concluded that issuance of a government-wide fee schedule was precluded by language of the FOIA Reform Act requiring “each agency's fees to be based upon its direct reasonable operating costs of providing FOIA services.” See 52 FR at 10015. The FOIA Reform Act mandated that agencies conform their fee schedules to these guidelines. The guidelines specifically direct that “[a]gencies should charge fees that recoup the full allowable direct costs they incur . . . and shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA.” Id. at 10018. The FTC enforces this OMB directive to recoup allowable direct costs while also providing for lower cost requester categories and fee reductions or waivers as directed.

Comment by the Reporters Committee for Freedom of the Press

The Reporters Committee supports the FTC's efforts to update its regulations to comply with FOIA but argues that two aspects of the proposed rule are inconsistent with both the text of FOIA and its recent interpretation by the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action v. Federal Trade Commission, 799 F.3d 1108 (D.C. Cir. 2015).

First, the Reporters Committee claims that § 4.8(b)(2)(iii) of the proposed rule sets forth an incorrect definition of “representative of the news media.” Specifically, the Reporters Committee states:

FOIA defines a “representative of the news media” as any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. 5 U.S.C. 552(a)(4)(A) (emphasis added). The Proposed Rule, however, defines a “representative of the news media” as any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to the public.

The Reporters Committee argues that the proposed rule's departure from the statutory text should be revised to mirror the language of FOIA. The FTC agrees and is incorporating the Reporters Committee's suggested edit to the Final Rule's definition of “representative of the news media” as set out in § 4.8(b)(2)(iii).

Additionally, the Reporters Committee also claims that § 4.8(e)(2)(i)(C) of the proposed rule places impermissible limitations on the conditions pursuant to which a public interest fee waiver will be granted. Section 4.8(e)(2)(i)(C) of the proposed rule stated as follows:

The understanding to which disclosure is likely to contribute is public understanding, as opposed to the understanding of the individual requester or a narrow segment of interested persons (e.g., by providing specific information about the requester's expertise in the subject area of the request and about the ability and intention to disseminate the information to the public) . . .

The Reporters Committee claims that this portion of the FTC's proposed rule does not comply with the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action v. Federal Trade Commission, 799 F.3d 1108 (D.C. Cir. 2015). For public interest fee waivers, the court determined that the FOIA statute does not: require a requester to show an ability to convey the information to a “broad segment” of the public or to a “wide audience.” To the contrary, we have held that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” . . . FOIA does not require that a requester be able to reach a “wide audience.” Rather, as the Second Circuit has held, “the relevant inquiry . . . is whether the requester will disseminate the disclosed records to a reasonably broad audience of persons interested in the subject.”

Cause of Action, 799 F.3d at 1116 (emphasis added) (citations omitted). The Reporters Committee argues that Cause of Action shows that for public interest fee waivers it is entirely sufficient if the requested records will increase the understanding of an audience of persons interested in the subject, even if that group is “narrow” as compared to the public at large. See Comment by the Reporters Committee (citing Cause of Action, 799 F.3d at 1116). The Reporters Committee thus claims that the reference to “a narrow segment of interested persons” as not meeting the standard for “public understanding” for fee waiver determinations should be deleted.

The FTC has considered this suggested edit but is denying the request. The final rule section relating to § 4.8(e)(2)(i)(C) is the same language that was previously proposed. This language complies with the FOIA statute and case law. Both the Cause of Action case that the Reporters Committee cites and the subsequent decision in National Security Counselors v. Department of Justice, 848 F.3d 467, 472 (D.C. Cir. Feb. 14, 2017), stated that, “although a fee-waiver applicant need not demonstrate its ability to reach a `wide audience,' it must at least show that it can `disseminate the disclosed records to a reasonably broad audience of persons interested in the subject.' ”

The National Security Counselors case then concluded that where a FOIA requester fails to provide sufficiently specific and non-conclusory statements demonstrating its ability to disseminate the disclosures to a reasonably broad audience of persons interested in the subject, that deficiency alone is a sufficient basis for denying the fee waiver request. The National Security Counselors court denied the appellant's fee waiver request and stated that the appellant in that case did not identify a discernible audience for the proposed disclosures and was no more than a clearing house for the records it received. The appellant did not actively engage in gathering information to produce original publications and did not produce information about the size of its audience or the amount of traffic received by its Web site. National Security Counselors, 848 F.3d at 472, 474. Thus the FTC concludes that a reasonably broad audience interested in the subject is clearly distinct from “a narrow segment of interested persons” and it is appropriate to consider whether the requested disclosure is likely to contribute to the understanding of “a narrow segment of interested persons” as opposed to “public understanding.” 8

8 See Crooker v. Department of the Army, 577 F. Supp. 1220, 1223 (D.D.C. 1984) (rejecting fee waiver under previous standard for information of interest to “a small segment of the scientific community,” which would not “benefit the public at large”), appeal dismissed as frivolous, No. 84-5089 (D.C. Cir. June 22, 1984).

Conclusion

The Commission certifies that the Rule amendments set forth in this final rule do not require an initial or final regulatory analysis under the Regulatory Flexibility Act because the amendments will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b). Most requests for access to FTC records are filed by individuals who are not “small entities” within the meaning of that Act. Id. at 601(6). In any event, the economic impact of the rule changes on all requesters is expected to be minimal, if any. The Rule amendments also do not contain information collection requirements within the meaning of the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

List of Subjects in 16 CFR Part 4

Administrative practice and procedure, Freedom of information.

For the reasons set forth in the preamble, the Federal Trade Commission amends Title 16, Chapter I, Subchapter A of the Code of Federal Regulations as follows: PART 4—MISCELLANEOUS RULES 1. The authority citation for Part 4 continues to read as follows: Authority:

15 U.S.C. 46.

2. Amend § 4.8 by revising paragraphs (b)(2)(iii), (b)(6)(i), (b)(7), (e)(2)(i)(C) and (i) to read as follows:
§ 4.8 Costs for obtaining Commission records.

(b) * * *

(2) * * *

(iii) A representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of news) who make their products available for purchase by or subscription by the general public or free distribution to the general public. These examples are not intended to be all-inclusive. As traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would provide a solid basis for such an expectation, but the past publication record of a requester may also be considered in making such a determination. To qualify for news media status, a request must not be for a nonjournalistic commercial use. A request for records supporting the news dissemination function of the requester is not considered a commercial use.

(6)(i) Schedule of direct costs. The following uniform schedule of fees applies to records held by all constituent units of the Commission:

Duplication Paper to paper copy (up to 8.5″ x 14″) $0.14 per page. Converting paper into electronic format (scanning) Quarter hour rate of operator (Clerical, Other Professional, Attorney/Economist). Other reproduction (e.g., converting from one electronic format to computer disk or printout, microfilm, microfiche, or microform) Actual direct cost, including operator time. Electronic Services Compact disc (CD) $3.00 per disc. DVD $3.00 per disc. Videotape cassette $2.00 per cassette. Microfilm Services Conversion of existing fiche/film to paper $0.14 per page. Other Fees Certification $25.00 each. Express Mail U.S. Postal Service Market Rates. Records maintained at Iron Mountain or Washington National Records Center facilities (records retrieval, refiling, et cetera) Contract Rates. Other Services as they arise Market Rates.

(7) Untimely responses. (i) Except as provided in paragraphs (b)(7)(ii)-(iv) of this section, search fees for responding to a Freedom of Information Act request will not be assessed for responses that fail to comply with the time limits, as provided at 5 U.S.C. 552(a)(4)(A)(viii), § 4.11(a)(1)(ii) and § 4.11(a)(3)(ii), if there are no unusual or exceptional circumstances, as those terms are defined by 5 U.S.C. 552(a)(6) and § 4.11(a)(1)(ii). Except as provided below, duplication fees will not be assessed for an untimely response, where there are no unusual or exceptional circumstances, made to a requester qualifying for one of the fee categories set forth in paragraph (b)(2) of this section.

(ii) If the Commission has determined that unusual circumstances apply and has provided a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), the delay in a response is excused for an additional 10 days. If the Commission fails to comply with the extended time limit, it will not charge search fees (or, for a requester qualifying for one of the fee categories set forth in paragraph (b)(2) of this section, will not charge duplication fees).

(iii) If the Commission has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the agency may charge search fees (or, for requesters qualifying for one of the fee categories set forth in paragraph (b)(2) of this section, may charge duplication fees) if timely written notice has been provided to the requester and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request.

(iv) If a court determines that exceptional circumstances exist, the Commission's failure to comply with a time limit shall be excused for the length of time provided by the court order.

(e) * * *

(2) * * *

(i) * * *

(C) The understanding to which disclosure is likely to contribute is public understanding, as opposed to the understanding of the individual requester or a narrow segment of interested persons (e.g., by providing specific information about the requester's expertise in the subject area of the request and about the ability and intention to disseminate the information to the public); and

(i) Means of payment. Payment shall be made either electronically through the Department of Treasury's pay.gov Web site or by check or money order payable to the Treasury of the United States.

By direction of the Commission.

Donald S. Clark, Secretary.
[FR Doc. 2017-09432 Filed 5-9-17; 8:45 am] BILLING CODE 6750-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 510, 520, 522, 524, and 558 [Docket No. FDA-2017-N-0002] New Animal Drugs; Approval of New Animal Drug Applications; Withdrawal of Approval of New Animal Drug Applications; Changes of Sponsorship AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule; correcting amendments.

SUMMARY:

The Food and Drug Administration (FDA or we) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during January and February 2017. FDA is also informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable. The animal drug regulations are also being amended to reflect several changes of sponsorship of applications and to make correcting amendments to improve the accuracy of the regulations.

DATES:

This rule is effective May 10, 2017, except for amendatory instruction 3 to 21 CFR 510.600, and amendatory instruction 10 to 21 CFR 522.1002, which are effective May 22, 2017.

FOR FURTHER INFORMATION CONTACT:

George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5689, [email protected]

SUPPLEMENTARY INFORMATION:

I. Approval Actions

FDA is amending the animal drug regulations to reflect approval actions for NADAs and an ANADA during January and February 2017, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the CVM FOIA Electronic Reading Room: http://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/CVMFOIAElectronicReadingRoom/default.htm. Marketing exclusivity and patent information may be accessed in FDA's publication, Approved Animal Drug Products Online (GreenBook) at: http://www.fda.gov/AnimalVeterinary/Products/ApprovedAnimalDrugProducts/default.htm.

Table 1—Original and Supplemental NADAs and ANADAs Approved During January and February 2017 Approval date File No. Sponsor Product name Species Effect of the action Public
  • documents
  • January 13, 2017 141-468 Phibro Animal Health Corp., GlenPointe Centre East, 3d Floor, 300 Frank W. Burr Blvd., Suite 21, Teaneck, NJ 07666 STAFAC (virginiamycin) plus BIO-COX (salinomycin) combination drug Type C medicated feeds Chickens Original approval for prevention of necrotic enteritis and coccidiosis in broiler chickens FOI Summary. January 13, 2017 141-469 Phibro Animal Health Corp., GlenPointe Centre East, 3d Floor, 300 Frank W. Burr Blvd., Suite 21, Teaneck, NJ 07666 STAFAC (virginiamycin) plus AMPROL (amprolium) combination drug Type C medicated feeds Chickens Original approval for prevention of necrotic enteritis and coccidiosis in broiler chickens FOI Summary. January 13, 2017 141-470 Phibro Animal Health Corp., GlenPointe Centre East, 3d Floor, 300 Frank W. Burr Blvd., Suite 21, Teaneck, NJ 07666 STAFAC (virginiamycin) plus AVATEC (lasalocid) combination drug Type C medicated feeds Chickens Original approval for prevention of necrotic enteritis and coccidiosis in broiler chickens FOI Summary. January 13, 2017 141-472 Huvepharma AD, 5th Floor, 3A Nikolay Haytov Str.,1113 Sophia, Bulgaria STAFAC (virginiamycin) plus CLINACOX (diclazuril) combination drug Type C medicated feeds Chickens Original approval for prevention of necrotic enteritis and coccidiosis in broiler chickens FOI Summary. February 13, 2017 141-445 Intervet, Inc., 2 Giralda Farms,Madison, NJ 07940 REVALOR-XR (trenbolone acetate and estradiol) Extended-Release Implant Cattle Original approval for increased rate of weight gain and improved feed efficiency during 70 to 200 days after implantation in beef steers and heifers fed in confinement for slaughter FOI Summary; EA/FONSI.1 February 17, 2017 200-609 Anzac Animal Health, LLC, 218 Millwell Dr., Suite B, Maryland Heights, MO 63043 DIROBAN (melarsomine dihydrochloride) Powder for Injection Dogs Original approval as a generic copy of NADA 141-042 FOI Summary. 1 The Agency has carefully considered an environmental assessment (EA) of the potential environmental impact of this action and has made a finding of no significant impact (FONSI).

    Following the approval of ANADA 200-609, Anzac Animal Health, LLC will now be included in the lists of sponsors of approved applications in § 510.600(c) (21 CFR 510.600(c)).

    II. Changes of Sponsorship

    Boehringer Ingelheim Vetmedica, Inc., 2621 North Belt Highway, St. Joseph, MO 64506-2002 has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Bayer HealthCare LLC, Animal Health Division, P.O. Box 390, Shawnee Mission, KS 66201:

    File No. Product name 21 CFR section 141-099 CYDECTIN (moxidectin) Pour-On for Beef and Dairy Cattle 524.1450 141-220 CYDECTIN (moxidectin) Injectable Solution for Beef and Nonlactating Dairy Cattle 522.1450 141-247 CYDECTIN (moxidectin) Oral Drench for Sheep 520.1454

    Ceva Sante Animale, 10 Avenue de la Ballastière, 33500 Libourne, France has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Cross Vetpharm Group Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland:

    File No. Product name 21 CFR section 141-420 TILDREN (tiludronate disodium) Powder for Infusion 522.2473 200-481 ALTRESYN (altrenogest) Solution 0.22% 520.48

    Cross Vetpharm Group Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland has informed FDA that it has transferred ownership of, and all rights and interest in, the following application to Ceva Sante Animale, 10 Avenue de la Ballastière, 33500 Libourne, France:

    File No. Product name 21 CFR section 200-587 FERROFORTE (gleptoferron) Solution, 200 mg/mL 522.1055

    Nexcyon Pharmaceuticals, Inc., P.O. Box 259158, Madison, WI 53725 has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Pegasus Laboratories, Inc., 8809 Ely Rd., Pensacola, FL 32514:

    File No. Product name 21 CFR section 141-272 RECONCILE (fluoxetine hydrochloride) Chewable Tablets 520.980

    Accordingly, the animal drug regulations are being amended to reflect these changes of sponsorship. Following this withdrawal of approval, Nexcyon Pharmaceuticals, Inc. is no longer the sponsor of an approved application. Accordingly, it will be removed from the list of sponsors of approved applications in § 510.600(c).

    III. Withdrawals of Approval

    In addition, during January and February 2017, the following sponsor requested that FDA withdraw approval of the NADAs listed in the following table because the products are no longer manufactured or marketed:

    File No. Sponsor Product name 21 CFR section 009-505 Sioux Biochemical, Inc., 204 Third St. NW., Sioux Center, IA 51250 F.S.H.-P (follicle stimulating hormone) Powder for Injection 522.1002

    Elsewhere in this issue of the Federal Register, FDA gave notice that approval of NADA 009-505, and all supplements and amendments thereto, is withdrawn, effective May 22, 2017. Following this withdrawal of approval, Sioux Biochemical, Inc., is no longer the sponsor of an approved application. As provided in the regulatory text of this document, the animal drug regulations are amended to reflect this voluntary withdrawal of approval.

    IV. Technical Amendments

    We are also making several technical amendments in part 558, which was amended on December 27, 2016 (81 FR 94991), and February 24, 2017 (82 FR 11510), as part of the FDA Center for Veterinary Medicine's (CVM's) Judicious Use Initiative. These actions are being taken to improve the accuracy of the regulations.

    This final rule is issued under Section 512(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.360b(i)), which requires Federal Register publication of “notice[s]. . . effective as a regulation,” of the conditions of use of approved new animal drugs. This rule sets forth technical amendments to the regulations to codify recent actions on approved new animal drug applications and corrections to improve the accuracy of the regulations, and as such does not impose any burden on regulated entities.

    Although denominated a rule pursuant to the Federal Food, Drug, and Cosmetic Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866 which defines a rule as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.” As such, this document is also not subject to Executive Order 12866.

    List of Subjects 21 CFR Part 510

    Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.

    21 CFR Parts 520, 522, and 524

    Animal drugs.

    21 CFR Part 558

    Animal drugs, Animal feeds.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, 524, and 558 are amended as follows:

    PART 510—NEW ANIMAL DRUGS 1. The authority citation for part 510 continues to read as follows: Authority:

    21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.

    2. Effective May 10, 2017, in § 510.600, in the table in paragraph (c)(1), alphabetically add an entry for “Anzac Animal Health, LLC”, and remove the entry for “Nexcyon Pharmaceuticals, Inc.”; and in the table in paragraph (c)(2), remove the entry for “050929”, and numerically add an entry for “086073.” The additions read as follows:
    § 510.600 Names, addresses, and drug labeler codes of sponsors of approved applications.

    (c) * * *

    (1) * * *

    Firm name and address Drug labeler code *         *         *         *         *         *         * Anzac Animal Health, LLC, 218 Millwell Dr., Suite B, Maryland Heights, MO 63043 086073 *         *         *         *         *         *         *

    (2) * * *

    Drug labeler code Firm name and address *         *         *         *         *         *         * 086073 Anzac Animal Health, LLC, 218 Millwell Dr., Suite B, Maryland Heights, MO 63043. *         *         *         *         *         *         *
    § 510.600 [Amended]
    3. Effective May 22, 2017, in § 510.600, in the table in paragraph (c)(1), remove the entry for “Sioux Biochemical, Inc.” .”; and in the table in paragraph (c)(2), remove the entry for “063112”. PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 4. The authority citation for part 520 continues to read as follows: Authority:

    21 U.S.C. 360b.

    § 520.48 [Amended]
    5. In § 520.48, in paragraph (b), remove “013744” and in its place add “061623”.
    § 520.980 [Amended]
    6. In § 520.980, in paragraph (b), remove “050929” and in its place add “055246”.
    § 520.1454 [Amended]
    7. In § 520.1454, in paragraph (b), remove “000010” and in its place add “000859”. PART 522—IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS 8. The authority citation for part 522 continues to read as follows: Authority:

    21 U.S.C. 360b.

    § 522.90b [Amended]
    9. In § 522.90b, in paragraph (a), remove “50, 100, or 250” and in its place add “200, 250, or 400”.
    § 522.1002 [Amended]
    10. Effective May 22, 2017, in § 522.1002, remove paragraph (b); and redesignate paragraph (c) as paragraph (b).
    § 522.1055 [Amended]
    11. In § 522.1055, in paragraph (b), remove “Nos. 013744 and 061623” and in its place add “No. 013744”.
    § 522.1362 [Amended]
    12. In § 522.1362, in paragraph (b), remove “No. 050604” and in its place add “Nos. 050604 and 086073”.
    § 522.1450 [Amended]
    13. In § 522.1450, in paragraph (b), remove “000010” and in its place add “000859”. 14. In § 522.1662a, revise paragraph (e)(1); and in paragraph (e)(3)(i)(c), revise the fifth sentence to read as follows:
    § 522.1662a Oxytetracycline hydrochloride injection.

    (e) * * *

    (1) Specifications. Each milliliter of solution contains 100 milligrams of oxytetracycline hydrochloride.

    (3) * * *

    (i) * * *

    (c) * * * Exceeding the highest recommended dose of 5 milligrams per pound of body weight per day, administering more than the recommended number of treatments, and/or exceeding 10 milliliters intramuscularly or subcutaneously per injection site in adult beef and dairy cattle may result in antibiotic residues beyond the withdrawal period. * * *

    § 522.2473 [Amended]
    15. In § 522.2473, in paragraph (b), remove “013744” and in its place add “061623”. 16. In § 522.2477, revise paragraph (b)(2) and add paragraph (d)(4) to read as follows:
    § 522.2477 Trenbolone acetate and estradiol.

    (b) * * *

    (2) No. 000061 for use as in paragraphs (d)(1)(i)(A), (d)(1)(i)(C), (d)(1)(i)(D), (d)(1)(i)(G), (d)(1)(ii), (d)(1)(iii), (d)(2)(i)(A), (d)(2)(i)(C), (d)(2)(i)(D), (d)(2)(ii), (d)(2)(iii), (d)(3)(i)(A), (d)(3)(ii), (d)(3)(iii), and (d)(4) of this section.

    (d) * * *

    (4) Beef steers and heifers fed in confinement for slaughter—(i) Amount. Each extended- and delayed-release implant contains 200 mg trenbolone acetate and 20 mg estradiol (one implant consisting of 10 pellets, each pellet containing 20 mg trenbolone acetate and 2 mg estradiol) per implant dose.

    (ii) Indications for use. For increased rate of weight gain and improved feed efficiency during 70 to 200 days after implantation.

    (iii) Limitations. Implant subcutaneously in the ear only. Do not use in lactating dairy cows or in animals intended for subsequent breeding. Use in these cattle may cause drug residues in milk and/or in calves born to these cows. Do not use in calves to be processed for veal. A withdrawal period has not been established for this product in pre-ruminating calves. Effectiveness and animal safety in veal calves have not been established. Not approved for repeated implantation (reimplantation) with this or any other cattle ear implant during the production phase(s) identified on labeling (beef steers and heifers fed in confinement for slaughter) unless otherwise indicated on labeling because safety and effectiveness have not been evaluated.

    PART 524—OPHTHALMIC AND TOPICAL DOSAGE FORM NEW ANIMAL DRUGS 17. The authority citation for part 524 continues to read as follows: Authority:

    21 U.S.C. 360b.

    § 524.1450 [Amended]
    18. In § 524.1450, in paragraph (b)(1), remove “000010” and in its place add “000859”. PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 19. The authority citation for part 558 continues to read as follows: Authority:

    21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.

    § 558.4 [Amended]
    20. In § 558.4, in paragraph (d), in the Category I table, remove the row entry for “Penicillin”; and in the Category II table, remove the row entry for “Sulfamethazine” the first time it appears only along with the subsequent entries for “Chlortetracycline” and “Penicillin”.
    § 558.76 [Amended]
    21. In § 558.76, remove and reserve paragraph (e)(1)(vii). 22. In § 558.115, revise paragraph (d)(4) to read as follows:
    § 558.115 Carbadox.

    (d) * * *

    (4) Carbadox may also be used in combination with oxytetracycline as in § 558.450.

    23. Amend § 558.128 as follows: a. In paragraph (b)(1), remove “50, 65, or 100” and in its place add “50, 90, or 100”; b. In paragraphs (e)(1)(i) and (v), in the “Limitations” column, remove “Do not feed to chickens producing eggs for human consumption.” and in its place add “For No. 066104: Do not feed to chickens producing eggs for human consumption.”; c. In paragraph (e)(3)(v), in the “Sponsor” column, add “054771” before “069254”; d. In paragraph (e)(4)(iii), in the “Indications for use” column, remove “anaplsmosis” and in its place add “anaplasmosis”; and e. Redesignate paragraphs (e)(4)(xxiv) and (xxv) as paragraphs (e)(4)(xxv) and (xxvi), respectively, and add new paragraph (e)(4)(xxiv).

    The addition reads as follows:

    § 558.128 Chlortetracycline.

    (e) * * *

    (4) * * *

    Chlortetracycline amount Combination in grams/ton Indications for use Limitations Sponsor *         *         *         *         *         *         * (xxiv) 25 to 2,800 to provide 350 mg/head/day Lasalocid, 30 to 181.8 Beef cattle weighing under 700 pounds: For control of active infection of anaplasmosis caused by Anaplasma marginale susceptible to chlortetracycline; and for the control of coccidiosis caused by Eimeria bovis and E. zuernii Hand feed continuously at a rate of 350 mg chlortetracycline and 1 mg lasalocid per 2.2 lb. body weight daily to cattle with a maximum of 360 mg of lasalocid per head per day. Do not allow horses or other equines access to feeds containing lasalocid. No withdrawal period is required. A withdrawal period has not been established for this product in pre-ruminating calves. Do not use in calves to be processed for veal. See § 558.311(d) of this chapter. Chlortetracycline and lasalocid as provided by No. 054771 in § 510.600(c) of this chapter 054771 *         *         *         *         *         *         *
    § 558.140 [Amended]
    24. In § 558.140, in paragraph (b)(1), remove “(d)(1)” and in its place add “(e)(1)”; and in paragraph (b)(2), remove “(d)(2)” and in its place add “(e)(2)”. 25. In § 558.325, redesignate paragraphs (e)(2)(vii) to (xvi) as paragraphs (e)(2)(viii) to (xvii), respectively, and add new paragraph (e)(2)(vii) to read as follows:
    § 558.325 Lincomycin.

    (e) * * *

    (2) * * *

    Lincomycin grams/ton Combination in grams/ton Indications for use Limitations Sponsors *         *         *         *         *         *         * (vii) 40 Pyrantel, 800 For the treatment and/or control of swine dysentery; for removal and control of large roundworm (Ascaris suum) and nodular worm (Oesophagostomum spp.) infections Feed as a single therapeutic treatment at a rate of 1 lb of feed per 40 lb of body weight for animals up to 200 lb and 5 lb of feed per head for animals over 200 lb. Not to be fed to swine that weigh more than 250 pounds. Withdraw 24 hours prior to slaughter. See paragraph (d) of this section. Lincomycin as provided by No. 054771; pyrantel as provided by No. 066104 in § 510.600(c) of this chapter 066104 *         *         *         *         *         *         *
    26. In § 558.366, revise paragraph (e) to read as follows:
    § 558.366 Nicarbazin.

    (e) Nicarbazin may also be used in combination with:

    (1)-(3) [Reserved]

    (4) Lincomycin as in § 558.325.

    § 558.485 [Amended]
    27. In § 558.485, remove paragraph (e)(1)(iv). 28. In § 558.550, add paragraph (d)(5) to read as follows:
    § 558.550 Salinomycin.

    (d) * * *

    (5) Salinomycin may also be used in combination with:

    (i)-(ii) [Reserved]

    (iii) Chlortetracycline as in § 558.128.

    (iv) Lincomycin as in § 558.325.

    29. Amend § 558.625 as follows: a. Revise paragraph (d)(2); b. Add paragraphs (d)(4) and (5); c. In paragraphs (e)(2)(iv), (v), (viii), (x), (xii), and (xiii), in the “Limitations” column, add a new sentence “See § 558.355(d) in this chapter.” between the fourth and fifth sentences; d. In paragraph (e)(2)(vi), in the “Limitations” column, add a new sentence “See § 558.355(d) in this chapter.” between the seventh and eighth sentences; and e. In paragraphs (e)(2)(vii), (ix), (xi), (xiv), and (xv), in the “Limitations” column, add a new sentence “See § 558.355(d) in this chapter.” between the fifth and sixth sentences.

    The revisions and additions read as follows:

    § 558.625 Tylosin.

    (d) * * *

    (2) The expiration date of VFDs for tylosin medicated feeds must not exceed 6 months from the date of issuance. VFDs for tylosin shall not be refilled.

    (4) Tylosin liquid Type B medicated feeds must bear an expiration date of 31 days after the date of manufacture.

    (5) Do not use tylosin liquid Type B medicated feeds in any liquid feed containing sodium metabisulfite or in any finished feed (supplement, concentrate, or complete feed) containing in excess of 2 percent bentonite.

    30. In § 558.635, revise paragraph (e)(1) to read as follows:
    § 558.635 Virginiamycin.

    (e) Conditions of use—(1) Chickens

    Virginiamycin
  • grams/ton
  • Combination in grams/ton Indications for use Limitations Sponsors
    (i) 20 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin Not for use in layers 066104 (ii) 20 Amprolium 72.6 to 113.5 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for the prevention of coccidiosis caused by Eimeria tenella For field conditions where only E. tenella is the major problem, feed continuously as the sole ration. Use as the sole source of amprolium. Do not use in feeds containing bentonite. Not for use in laying chickens. Amprolium as provided by No. 016592 in § 510.600(c) of this chapter 066104 (iii) 20 Amprolium 113.5 to 227 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for the prevention of coccidiosis where immunity to coccidiosis is not desired For most field conditions as they exist under modern management practices, feed 113.5 g/ton amprolium continuously. Where severe coccidiosis conditions exist, feed 227 g/ton. Use as the sole source of amprolium. Do not use in feeds containing bentonite. Not for use in laying chickens. Amprolium as provided by No. 016592 in § 510.600(c) of this chapter 066104 (iv) 20 Diclazuril 0.91 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for the prevention of coccidiosis caused by Eimeria tenella, E. necatrix, E. acervulina, E. brunetti, E. mitis (mivati), and E. maxima. Because diclazuril is effective against E. maxima late in its life cycle, subclinical intestinal lesions may be present for a short time after infection. Diclazuril was shown in studies to reduce lesions scores and improve performance and health of birds challenged with E. maxima Feed continuously as the sole ration. Do not use in hens producing eggs for human food. Diclazuril as provided by No. 016592 in § 510.600(c) of this chapter 016592 (v) 20 Lasalocid 68 to 113 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for the prevention of coccidiosis caused by Eimeria tenella, E. necatrix, E. acervulina, E. brunetti, E. mivati, and E. maxima Feed continuously as the sole ration. Do not feed to laying chickens. For broiler or fryer chickens only. Lasalocid as provided by No. 054771 in § 510.600(c) of this chapter 066104 (vi) 20 Monensin 90 to 110 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and as an aid in the prevention of coccidiosis caused by Eimeria necatrix, E. tenella, E. acervulina, E. brunetti, E. maxima, and E. mivati Feed continuously as the sole ration. Do not feed to laying chickens. See § 558.355(d) in this chapter. Monensin as provided by No. 058198 in § 510.600(c) of this chapter 066104 (vii) 20 Salinomycin 40 to 60 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for the prevention of coccidiosis caused by Eimeria tenella, E. necatrix, E. acervulina, E. maxima, E. brunetti, and E. mivati Feed continuously as the sole ration. Do not feed to chickens over 16 weeks of age. Do not feed to laying chickens. Not approved for use with pellet binders. May be fatal if accidentally fed to adult turkeys or horses. Salinomycin as provided by No. 016592 in § 510.600(c) of this chapter (viii) 20 Semduramicin 22.7 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for the prevention of coccidiosis caused by Eimeria acervulina, E. brunetti, E. maxima, E mivati/mitis, E. necatrix, and E. tenella Feed continuously as the sole ration. Do not feed to laying hens. Semduramicin as provided by No. 066104 in § 510.600(c) of this chapter 066104 (ix) 20 Semduramicin (biomass) 22.7 Broiler chickens: For prevention of necrotic enteritis caused by Clostridium perfringens susceptible to virginiamycin; and for the prevention of coccidiosis caused by Eimeria acervulina, E. brunetti, E. maxima, E mivati/mitis, E. necatrix, and E. tenella Feed continuously as the sole ration. Withdraw 1 day before slaughter. Do not feed to laying hens. Semduramicin as provided by No. 066104 in § 510.600(c) of this chapter 066104
    31. In § 558.680, remove paragraph (e) and add paragraph (d)(3) to read as follows:
    § 558.680 Zoalene.

    (d) * * *

    (3) Zoalene may also be used in combination with:

    (i)-(ii) [Reserved]

    (iii) Lincomycin as in § 558.325.

    Dated: May 4, 2017. Anna K. Abram, Deputy Commissioner for Policy, Planning, Legislation, and Analysis.
    [FR Doc. 2017-09364 Filed 5-9-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 522 [Docket No. FDA-2017-N-0002] New Animal Drugs; Withdrawal of Approval of a New Animal Drug Application AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification of withdrawal.

    SUMMARY:

    The Food and Drug Administration (FDA) is withdrawing approval of a new animal drug application (NADA). This action is being taken at the sponsors' request because these products are no longer manufactured or marketed.

    DATES:

    Withdrawal of approval is effective May 22, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Sujaya Dessai, Center for Veterinary Medicine (HFV-212), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5761, [email protected]

    SUPPLEMENTARY INFORMATION:

    Sioux Biochemical, Inc., 204 Third St. NW., Sioux Center, IA 51250 has requested that FDA withdraw approval of NADA 009-505 for F.S.H.-P (follicle stimulating hormone) Powder for Injection because the product is no longer manufactured or marketed.

    Therefore, under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, and in accordance with § 514.116 Notice of withdrawal of approval of application (21 CFR 514.116), notice is given that approval of NADA 009-505, and all supplements and amendments thereto, is hereby withdrawn, effective May 22, 2017.

    Elsewhere in this issue of the Federal Register, FDA is amending the animal drug regulations to reflect the voluntary withdrawal of approval of this application.

    Dated: May 4, 2017. Anna K. Abram, Deputy Commissioner for Policy, Planning, Legislation, and Analysis.
    [FR Doc. 2017-09365 Filed 5-9-17; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 15 [Docket No. FR-5986-C-02] RIN 2501-AD81 Revision of Freedom of Information Act Regulation; Correction AGENCY:

    Office of the Secretary, HUD.

    ACTION:

    Final rule; correction.

    SUMMARY:

    On January 12, 2017, HUD issued a final rule amending HUD's Freedom of Information Act (FOIA) regulation to implement the FOIA Improvement Act of 2016, which enacted a range of procedural changes, including a change to the procedures for withholding information and an amendment to one of the nine FOIA exemptions that authorizes an agency to withhold various records from disclosure. After publication, HUD discovered that a portion of the regulation was not published as intended. Specifically, the published rule deleted several of the nine statutory FOIA disclosure exemptions and duplicated another. HUD also noticed minor technical changes required elsewhere in its regulations. This document corrects HUD's January 12, 2017, final rule and makes the minor technical changes.

    DATES:

    Effective: May 10, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Helen Goff Foster, Chief Administrative Officer, Office of Administration, Department of Housing and Urban Development, 451 7th Street SW., Room 6100, Washington, DC 20410-0500, telephone number 1-202-402-6838 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at telephone number 1-800-877-8339 (this is a toll-free number).

    SUPPLEMENTARY INFORMATION:

    On January 12, 2017 (82 FR 3623), HUD issued a final rule amending HUD's Freedom of Information Act (FOIA) regulation at 24 CFR part 15 to implement the FOIA Improvement Act of 2016 (Pub. L. 114-185, approved June 30, 2016) (2016 Act). Upon review of the published rule, HUD determined that § 15.107 was not published as intended. The amendatory instruction excluded three of the nine statutory FOIA exemptions (5 U.S.C. 552(b)) and included a duplicate exemption in § 15.107(b).

    HUD's January 12, 2017, final rule sought to restructure § 15.107 by adding paragraph (a) to provide that HUD shall withhold information only if it is reasonably foreseeable that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law. HUD also sought to redesignate the undesignated introductory text as paragraph (b), redesignate paragraphs (a) through (i) as (b)(1) through (b)(9), and amend redesignated paragraph (b)(5), the deliberative process privilege, to add a sunset clause after 25 years.

    As discussed above, HUD's final rule did not accurately restructure § 15.107 as intended. This final rule restates in whole § 15.107 to reflect the changes required by the 2016 Act to the deliberative process privilege exemption, and restores all other FOIA disclosure exemptions.

    In addition, HUD is fixing an incorrect Web site link in § 15.101, removing two misplaced words in § 15.105, and correcting the number of days a FOIA requester has to appeal an adverse determination in § 15.109(a), consistent with the change HUD made in § 15.105(d)(2)(iv).

    List of Subjects in 24 CFR Part 15

    Classified information, Courts, Freedom of information, Government employees, Reporting and recordkeeping requirements.

    Accordingly, 24 CFR part 15 is corrected by making the following correcting amendments:

    PART 15—PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD EMPLOYEES 1. The authority for part 15 continues to read as follows: Authority:

    42 U.S.C. 3535(d), 5 U.S.C. 552.

    § 15.101 [Amended]
    2. In § 15.101(b)(2), remove the link “http://www/data/gov” and add in its place the link “http://www.data.gov”.
    § 15.105 [Amended]
    3. In § 15.105, in paragraph (d)(2)(iv) remove the word “and” and in paragraph (d)(2)(v) remove the word “and”. 4. Revise § 15.107 to read as follows:
    § 15.107 Documents generally protected from disclosure.

    (a) HUD shall withhold information only if HUD reasonably foresees that disclosure would harm an interest protected by an exemption as provided in paragraph (b) of this section, or disclosure is prohibited by law. HUD will consider whether partial disclosure of information is possible whenever HUD determines that a full disclosure of a requested record is not possible, and will take reasonable steps necessary to segregate and release nonexempt information. Nothing in this section requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure as provided in paragraph (b)(3) of this section.

    (b) The FOIA contains nine exemptions (5 U.S.C. 552(b)) that authorize agencies to withhold various records from disclosure. With regard to certain types of records, HUD generally applies the exemptions as follows:

    (1) Classified documents. Exemption 1 (5 U.S.C. 552(b)(1)) protects classified national defense and foreign relations information. HUD seldom relies on this exception to withhold documents. However, where applicable, HUD will refer a request for records classified under Executive Order 13526 and the pertinent records to the originating agency for processing. HUD may refuse to confirm or deny the existence of the requested information if the originating agency determines that the fact of the existence of the information itself is classified.

    (2) Internal agency rules and practices. Exemption 2 (5 U.S.C. 552(b)(2)) protects records relating to internal personnel rules and practices.

    (3) Information prohibited from disclosure by another statute. Exemption 3 (5 U.S.C. 552(b)(3)) protects information that is prohibited from disclosure by another Federal law. HUD generally will not disclose competitive proposals prior to contract award, competitive proposals that are not set forth or incorporated by reference into the awarded contract (see 41 U.S.C. 4702), or, during the selection process, any covered selection information regarding such selection, either directly or indirectly (see 42 U.S.C. 3537a).

    (4) Commercial or financial information. Exemption 4 (5 U.S.C. 552(b)(4)) protects trade secrets and commercial or financial information obtained from a person and privileged or confidential. HUD will handle this type of information as provided by § 15.108.

    (5) Certain interagency or intra-agency communications. Exemption 5 (5 U.S.C. 552(b)(5)) protects interagency or intra-agency communications that are protected by legal privileges, such as the attorney-client privilege, attorney work-product privilege, or communications reflecting the agency's deliberative process. The deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.

    (6) Personal privacy. Exemption 6 (5 U.S.C. 552(b)(6)) protects information involving matters of personal privacy. This information may include personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Names, addresses, telephone numbers, and email addresses of persons residing in public or assisted housing or of borrowers in FHA-insured single family mortgage transactions generally will not be disclosed.

    (7) Law enforcement records. Exemption 7 (5 U.S.C. 552(b)(7)) protects certain records or information compiled for law enforcement purposes. This exemption protects records where the production could reasonably be expected to interfere with enforcement proceedings; for example, the names of individuals who have filed fair housing complaints. The protection of this exemption also encompasses, but is not limited to, information in law enforcement files that could reasonably be expected to constitute an unwarranted invasion of personal privacy; the names of confidential informants, and techniques and procedures for law enforcement investigations, or guidelines for law enforcement investigations if such disclosure could reasonably be expected to risk circumvention of the law.

    (8) Supervision of financial institutions. Exemption 8 (5 U.S.C. 552(b)(8)) protects information relating to the supervision of financial institutions. For purposes of Exemption 8, HUD is an “agency responsible for the regulation and supervision of financial institutions” for purposes of monitoring fair housing compliance.

    (9) Wells. Exemption 9 (5 U.S.C. 552(b)(9)) protects geological information on wells.

    § 15.109 [Amended]
    5. In § 15.109(a), remove the number “30” and add in its place the number “90”. Dated: May 4, 2017. Aaron Santa Anna, Assistant General Counsel for Regulations.
    [FR Doc. 2017-09465 Filed 5-9-17; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2012-0309] Safety Zone, Chicago Harbor, Navy Pier East, Chicago, IL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the Navy Pier East Safety Zone within the Chicago Harbor on June 27, 2017. This action is necessary and intended to ensure the safety of life and property on navigable waters prior to, during, and immediately after the fireworks display. During the enforcement period listed below, the Coast Guard will enforce restrictions upon, and control movement of vessels that transit this regulated area with the approval from the Captain of the Port Lake Michigan.

    DATES:

    The regulation in 33 CFR 165.933 will be enforced from 8:45 p.m. until 9:45 p.m. on June 27, 2017.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email LT Lindsay Cook, Waterways Management Division, Marine Safety Unit Chicago, at 630-986-2155, email address [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce Safety Zone; Chicago Harbor, Navy Pier East, Chicago, IL listed in 33 CFR 165.933, on June 27, 2017 from 8:45 p.m. until 9:45 p.m., for a barge based fireworks display. This action is being taken to provide for the safety of life and property on navigable waterways before, during, and immediately after the fireworks display. As specified in 33 CFR 165.933 this safety zone encompasses all waters of Lake Michigan within Chicago Harbor between the east end of Navy Pier and the Chicago Harbor breakwater bounded by coordinates beginning at 41°53′37″ N., 087°35′26″ W.; then south to 41°53′24″ N., 087°35′26″ W.; then east to 41°53′24″ N., 087°35′55″ W.; then north to 41°53′37″ N., 087°35′55″ W.; then back to the point of origin (NAD 83). During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Lake Michigan or a Captain of the Port designated representative. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.

    This notice of enforcement is issued under authority of 33 CFR 165.931 and 5 U.S.C. 552 (a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notice of this enforcement via Broadcast Notice to Mariners and listing this event in the Local Notice to Mariners. If the Captain of the Port or a designated representative determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area. The Captain of the Port Lake Michigan or a designated on-scene representative may be contacted via Channel 16, VHF-FM.

    Dated: May 4, 2017. A.B. Cocanour, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan.
    [FR Doc. 2017-09444 Filed 5-9-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2017-0308] Security Zone; Portland Rose Festival on Willamette River AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the security zone for the Portland Rose Festival on the Willamette River in Portland, OR, from 8 a.m. on June 7, 2017 through noon on June 12, 2017. This action is necessary to ensure the security of vessels participating in the 2017 Portland Rose Festival on the Willamette River during the event. Our regulation for the Security Zone Portland Rose Festival on the Willamette River identifies the regulated area. During the enforcement period, no person or vessel may enter or remain in the security zone without permission from the Sector Columbia River Captain of the Port.

    DATES:

    The regulations in 33 CFR 165.1312 will be enforced from 8 a.m. on June 7, 2017, through noon on June 12, 2017.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email LCDR Laura Springer, Waterways Management Division, MSU Portland, Oregon, Coast Guard; telephone 503-240-9319, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the security zone for the Portland Rose Festival detailed in 33 CFR 165.1312 from 8 a.m. on June 7, 2017, through noon on June 12, 2017. This action is necessary to ensure the security of vessels participating in the 2017 Portland Rose Festival on the Willamette River during the event. Under the provisions of 33 CFR 165.1312 and subpart D of part 165, no person or vessel may enter or remain in the security zone, consisting of all waters of the Willamette River, from surface to bottom, encompassed by the Hawthorne and Steel Bridges, without permission from the Sector Columbia River Captain of the Port. Persons or vessels wishing to enter the security zone may request permission to do so from the on-scene Captain of the Port representative via VHF Channel 16 or 13. The Coast Guard may be assisted by other Federal, State, or local enforcement agencies in enforcing this regulation.

    This notice of enforcement is issued under authority 33 CFR 165.1312 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

    Dated: May 4, 2017. D.F. Berliner, Captain, U.S. Coast Guard, Acting Captain of the Port, Sector Columbia River.
    [FR Doc. 2017-09408 Filed 5-9-17; 8:45 am] BILLING CODE 9110-04-P
    LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Parts 201 and 202 [Docket No. 2017-6] Designation of Agent To Receive Notification of Claimed Infringement AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule makes non-substantive technical amendments to the U.S. Copyright Office's regulations governing the submission of designated agent and service provider information to the Office pursuant to the Digital Millennium Copyright Act (“DMCA”).

    DATES:

    Effective May 10, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Sarang V. Damle, General Counsel and Associate Register of Copyrights, by email at [email protected], or Jason E. Sloan, Attorney-Advisor, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350.

    SUPPLEMENTARY INFORMATION:

    Effective December 1, 2016, the Copyright Office adopted new regulations governing the submission of designated agent and service provider information to the Office pursuant to the Digital Millennium Copyright Act (“DMCA”) in connection with the implementation of a new electronic registration system launched the same day.1 Under that rule, a person creating a user account for the electronic registration system is required to provide contact information for two people—a primary contact and secondary contact. Once the user account is set up, the user can then submit service provider and designated agent contact information. The contact information for the user account is collected by the Copyright Office solely for “administrative purposes,” 2 e.g., for Office correspondence, and is not made public; it is distinct from the information that must be provided for each service provider and designated agent.

    1 81 FR 75695 (Nov. 1, 2016).

    2See 37 CFR 201.38(c)(1).

    As a result of user feedback about the new system, the Office has reconsidered the need for some of the contact information required to be provided under the current rule as part of the user account creation process. Specifically, the Office has been informed that in some cases smaller service providers have either been confused by some of the requirements or have had difficulty following them. For example, a service provider who is an individual blogger, acting as his or her own primary point of contact for communications with the Office, may not have a positional/title or organization, or may have difficulty finding someone to act as a secondary point of contact.

    Upon further reflection, the Office believes that some of the currently required information, while helpful, is not essential to facilitating efficient communication with the Office, and on balance need not be collected. Consequently, the Office has determined that in connection with the user account creation process, it will no longer be mandatory to provide the position or title, organization, or physical mail address for the individual named as the primary point of contact for communications with the Office. The Office will also stop requiring users to provide a secondary point of contact for communications with the Office. The Office is removing the position/title and address fields for the primary and secondary account contacts from the system; the Office has determined that such information is not necessary for Office communications. The organization field and fields relating to the secondary contact will remain, but will be made optional, as certain service providers might find it useful to include this information. Nonetheless, the Office still strongly encourages all service providers to provide a secondary contact as a backup to best ensure that important communications from the Office—especially renewal reminders—reach the appropriate person.

    Because the current regulation only requires this information for administrative purposes, this final rule is a non-substantive, procedural change not “alter[ing] the rights or interests of parties,” and thus is not subject to the notice and comment requirements of the Administrative Procedure Act.3 Furthermore, the Office finds good cause that permitting notice and comment would be “contrary to the public interest” in this instance.4 Because this final rule will make it even easier and faster for service providers to register an account with the new system, and should reduce any confusion or burden on smaller service providers, it is in the public's best interest that it take effect without delay. For these same reasons, the Office is making this final rule effective on May 10, 2017, when updates to the electronic system will be made to implement it.5

    3See Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014) (“The critical feature of a procedural rule is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.”) (internal quotation marks omitted); 5 U.S.C. 553(b) (notice and comment not required for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”).

    4See 5 U.S.C. 553(b) (notice and comment not required “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).

    5See id. § 553(d) (“The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except—(1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule.”).

    List of Subjects in 37 CFR Parts 201 and 202

    Copyright.

    Final Regulations

    For the reasons set forth above, the Copyright Office amends 37 CFR part 201 as follows:

    PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority:

    17 U.S.C. 702.

    § 201.1 [Amended]
    2. Amend § 201.1 by removing paragraph (c)(3) and redesignating paragraphs (c)(4) through (8) as paragraphs (c)(3) through (7), respectively.
    § 201.2 [Amended]
    3. Amend § 201.2 in paragraph (b)(5) by removing “201.1(c)(5)” and adding in its place “201.1(c)”.
    3. Amend § 201.38 as follows: a. In paragraph (b)(1)(ii), remove “an email address and/or physical mail address” and add in its place “an email address”; and b. Revise paragraph (c)(1)(i).

    The revision reads as follows:

    § 201.38 Designation of agent to receive notification of claimed infringement.

    (c) * * *

    (1) * * *

    (i) The first name, last name, telephone number, and email address of a representative of the service provider who will serve as the primary point of contact for communications with the Office.

    PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT 4. The authority citation for part 202 continues to read as follows: Authority

    17 U.S.C. 408(f), 702

    § 202.5 [Amended]
    4. Amend § 202.5 in paragraph (d) by removing “201.1(c)(4)” and adding in its place “201.1(c)”. Dated: April 19, 2017. Karyn Temple Claggett, Acting Register of Copyrights and Director of the U.S. Copyright Office. Carla D. Hayden, Librarian of Congress.
    [FR Doc. 2017-09395 Filed 5-9-17; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 35 State and Local Assistance CFR Correction In Title 40 of the Code of Federal Regulations, parts 1 to 49, revised as of July 1, 2016, on page 517, in § 35.6280, paragraph (a)(2) is revised to read as follows:
    § 35.6280 Payments.

    (a) * * *

    (2) Interest. The interest a recipient earns on an advance of EPA funds is subject to the requirements of 2 CFR 200.305.

    [FR Doc. 2017-09486 Filed 5-9-17; 8:45 am] BILLING CODE 1301-00-D
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0308; FRL-9961-86-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Removal of Stage II Gasoline Vapor Recovery Requirements for Gasoline Dispensing Facilities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia. The revision includes regulatory amendments that allow gasoline dispensing facilities (GDFs) located in Northern Virginia, Fredericksburg, and Richmond that are currently required to install and operate vapor recovery equipment on gasoline dispensers (otherwise referred to as Stage II vapor recovery, or simply as Stage II) to decommission that equipment by January 2017. In prior rulemaking actions, EPA already approved Virginia's demonstrations that decommissioning Stage II is consistent with the Clean Air Act (CAA) and EPA guidance. The intended effect of this action is to approve Virginia's revised petroleum transfer and storage regulation to allow for decommissioning of Stage II equipment.

    DATES:

    This final rule is effective on June 9, 2017.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0308. 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 (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Brian Rehn, (215) 814-2176, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On October 21, 2016, EPA published a notice of direct final rulemaking (81 FR 72724) and an accompanying proposed rulemaking (NPR) (81 FR 72757) for the Commonwealth of Virginia. Therein, EPA proposed approval of Virginia's revised 9 VAC 5, Chapter 40, Rule 4-37 (Rule 4-37), Emission Standards for Petroleum Liquid Storage and Transfer Operations. These regulations had been amended to allow for the decommissioning of Stage II vapor recovery systems at GDFs in areas of the Commonwealth subject to Stage II under Virginia's SIP. The SIP revision was submitted by the Virginia Department of Environmental Quality (VA DEQ) on October 15, 2015.

    After receiving adverse comments during the public comment period on its proposed action, EPA withdrew the October 21, 2016 direct final rule in a notice published in the December 9, 2016 (81 FR 89007) Federal Register. As indicated in the October 21, 2016 direct final rule, EPA's separate proposed rule published at the same time serves as the proposed rulemaking.

    I. Background

    Stage II vapor recovery is a means of capturing volatile organic compounds (VOCs) emitted as vapors displaced from a vehicle's gas tank during refueling operations, via vapor controls equipped on a gasoline pump at a GDF. Stage II vapor recovery uses special refueling nozzles and coaxial hoses on the gasoline dispenser to capture these vapors that might otherwise be emitted to the atmosphere during vehicle fueling. These gasoline vapors contain air emissions and serve as precursors to the formation of ground-level ozone—an ambient air pollutant regulated under the CAA. Under section 182(b)(3) of the CAA, areas classified as moderate or worse ozone nonattainment were required to adopt a Stage II vapor recovery program. Areas in the Ozone Transport Region (OTR) were required under section 184(a) and (b)(2) to adopt Stage II, or a comparable measure that could achieve similar emission reductions. Virginia currently has three SIP-approved Stage II programs in the Richmond, Fredericksburg, and the Virginia portion of the Washington, DC areas.

    The Richmond Stage II program was instituted as a result of the area being designated nonattainment under the 1-hour ozone National Ambient Air Quality Standards (NAAQS) by the CAA of 1990. The Richmond Stage II area (the Richmond Area) has since been redesignated as attainment for both the 1-hour ozone NAAQS (November 17, 1997; 62 FR 61237) and for the 19978-hour ozone NAAQS (June 1, 2007; 72 FR 30485). However, Virginia's SIP-approved maintenance plans for the1-hour and 1997 8-hour ozone NAAQS relied upon emissions reductions from Stage II as a means to ensure continued maintenance of the ozone NAAQS. Although the 1-hour ozone NAAQS was revoked on June 15, 2005, EPA's implementation rule for the 1997 ozone NAAQS retained Stage II as a required measure to prevent backsliding under the NAAQS.

    The Virginia portion of the Washington, DC-MD-VA ozone nonattainment area (hereafter referred to as the Washington Area) was subject to Stage II not only because of its designation as nonattainment for the ozone NAAQS, but also because this area lies in a CAA-established OTR. The area was designated serious nonattainment under the 1-hour ozone NAAQS. The Washington Area was later designated moderate nonattainment under the 1997 8-hour ozone NAAQS, as was the neighboring Fredericksburg ozone nonattainment area (referred to herein as Fredericksburg Area). On November 13, 2002, EPA reclassified the Virginia portion of the Washington, DC-MD-VA area as severe nonattainment under the 1-hour ozone NAAQS. 67 FR 68805. Virginia subsequently submitted and EPA approved attainment plans for the 1-hour and 1997 8-hour NAAQS for the Washington Area, and EPA also approved a redesignation and maintenance plan for the Fredericksburg Area. Although the 1-hour ozone NAAQS was revoked effective June 2005, EPA's implementation rule for the 1997 ozone NAAQS retained Stage II-related requirements under CAA section 182(b)(3) for certain areas. Stage II continued to apply in the Washington, DC nonattainment area as an anti-backsliding measure under the implementation rules for the 1997 and 2008 ozone NAAQS. The 2008 ozone implementation rule similarly required that Stage II remain in the Fredericksburg Area as a maintenance measure pending EPA determination that onboard refueling vapor recovery (ORVR) was in widespread use and Virginia could demonstrate that Stage II was no longer a necessary component of its air quality plans.

    Virginia adopted Stage II regulations in the November 2, 1992 edition of the Virginia Register of Regulations (Vol 9, Issue 3), effective January 1, 1993. Virginia submitted its Stage II regulation to EPA as a SIP revision on November 5, 1992. EPA approved Virginia's Stage II SIP revision on June 23, 1993 (59 FR 32353).

    ORVR is an emissions control system equipped on new, gasoline-powered vehicles (beginning with model year 1998 vehicles) for the purpose of capturing refueling gasoline vapors before they escape the vehicle gas tank and to store them in an underhood canister for later engine combustion. Section 202(a)(6) of the CAA directed that Stage II requirements under section 182(b)(3) would no longer apply to moderate ozone nonattainment areas upon promulgation of standards for ORVR systems as part of the emission control system on newly manufactured vehicles. Section 202(a)(6) further provides that EPA may, by rule, waive the section 182(b)(3) Stage II requirements for ozone nonattainment areas designated serious or worse upon EPA's determination that ORVR technology is in “widespread use.” EPA issued its widespread use determination on May 16, 2012 (77 FR 28772), indicating that ORVR was in widespread use throughout the U.S. vehicle fleet, and that at that time ORVR vehicles were essentially equal to and would soon surpass the emissions reductions achieved by Stage II alone.

    Virginia has examined whether Stage II vapor recovery continues to be necessary for ozone control purposes, given the prevalence of ORVR-equipped gasoline-powered vehicles and the redundancy between ORVR and Stage II systems in reducing gasoline tank displacement emissions associated with refueling. Additionally, Virginia analyzed the interference effect between certain Stage II systems and ORVR systems, which can result in VOC emissions being greater where ORVR and certain Stage II systems are simultaneously used than they would be if only Stage II or ORVR were used. From these analyses, Virginia determined that Stage II vapor recovery is no longer necessary as a control measure to address ambient ozone in the Washington, Fredericksburg, and Richmond areas.

    On November 12, 2013 and March 18, 2014, Virginia submitted SIP revisions to EPA that evaluated the emissions impacts to each of the affected Virginia Stage II areas associated with removal of the program. Those SIP revisions amended the ozone maintenance plan for the Richmond Area and the attainment plan for the Washington Area to demonstrate that removal of the Stage II programs would not interfere with those areas' ability to attain and maintain any NAAQS. On May 26, 2015 (80 FR 29959), EPA approved the Commonwealth's March 18, 2014 SIP revision amending the approved ozone attainment plan for the Virginia portion of Washington Area and the approved ozone maintenance plan for the Fredericksburg Area to remove the Stage II program. On August 11, 2014, EPA approved Virginia's November 12, 2013 SIP revision amending the approved ozone maintenance plan SIP for the Richmond Area to remove the Stage II program. 79 FR 46711. None of these approvals were challenged in court by any objecting party.

    II. Summary of SIP Revision and EPA Analysis

    On October 15, 2015, the Commonwealth of Virginia submitted a formal revision to remove the requirements for Stage II vapor recovery controls in Virginia ozone nonattainment areas from the approved Virginia SIP (Revision C14). This October 2015 SIP revision contains the amended Stage II vapor recovery regulatory provisions of Virginia Rule 4-37, entitled “Emission Standards for Volatile Organic Compounds from Petroleum Liquid Storage and Transfer Operations.” The October 2015 SIP revision includes Virginia's regulatory amendments listed at 9VAC5-20 and 9VAC5-40 that were adopted by Virginia in June of 2014, and published in the Virginia Register of Regulations on June 15, 2015 which removed Stage II vapor recovery requirements from Virginia law governing petroleum liquid storage and transfer operations. The purpose of this SIP revision is to remove Stage II vapor recovery requirements from the Commonwealth's SIP. Under Virginia's amended Rule 4-37, gasoline stations in the Washington and Fredericksburg Areas were no longer required to employ Stage II systems as of January 2014, and Richmond Area stations were no longer required to employ Stage II vapor recovery systems as of January 2017. Facilities electing to decommission Stage II are now required under Rule 4-37 to meet established decommissioning procedures, and facilities electing to continue to operate Stage II are required to continue to operate properly and maintain their Stage II systems.

    As described in the Background section of this action, EPA already approved Virginia's SIP revisions submitted on November 12, 2013 and March 18, 2014 demonstrating that removal of Stage II as a control measure from the SIP will not interfere with the Washington, Fredericksburg, and Richmond Areas' ability to attain and maintain any applicable NAAQS. VA DEQ examined whether Stage II is necessary as an ozone control measure and determined this program is no longer beneficial to air quality in the Commonwealth, given the widespread use of ORVR equipment in new vehicles manufactured since 1998 and the inherent redundancies between Stage II vapor recovery equipment and vehicle-based ORVR systems, and in light of the incompatibilities between some Stage II vapor recovery equipment and vehicle-based, ORVR systems.

    EPA has evaluated the regulatory amendments adopted by Virginia to its Rule 4-37 to rescind Stage II vapor recovery requirements for new and existing stations, to adopt decommissioning procedures and requirements for GDFs electing to no longer operate existing Stage II systems, and to require the continued operation and maintenance of Stage II equipment for stations that elect to continue participation in the program. Virginia's regulatory changes meet EPA guidance and the related requirements of sections 182 and 202 of the CAA with respect to the applicability of Stage II requirements after EPA's issuance of its ORVR widespread use determination in 2012, as described in the Background section of this document. Virginia has properly analyzed the impact of removal of the Stage II program in adherence with EPA's “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures,” dated August 7, 2012 (EPA-457/B-12-001), including applicability of Stage II or comparable measures in the OTR, per section 184 of the CAA. As previously found by EPA, Virginia has demonstrated that removal of the Stage II requirement does not interfere with any affected area's ability to attain or maintain any NAAQS, or with any other applicable requirement of the CAA, under section 110(l) of the CAA.

    For further information on Virginia's analysis of the impacts of removal of the Stage II programs in the Washington and Fredericksburg Areas, please refer to EPA's May 26, 2015 approval of the SIP demonstration applicable to those areas. See 80 FR 29959. For further information with respect to Virginia's analysis of the removal of Stage II in the Richmond Area, please refer to EPA's August 11, 2014 approval of the Commonwealth's demonstration applicable to Richmond. See 79 FR 46711.

    III. Response to Comments

    EPA received several anonymous comments on the October 21, 2016 proposed rulemaking. These comments are summarized below with EPA's response.

    Comment: The commenter states that Virginia should retain Stage II requirements, as they will keep Virginia's standards for good air quality at its highest when there is a legal requirement that must be followed.

    Response: EPA disagrees with the commenter's assertion that retaining Stage II as a regulatory requirement will maintain air quality in the regulated Virginia areas in question. Virginia demonstrated in two prior EPA-approved SIP revisions (80 FR 29959 (May 26, 2015) and 79 FR 46711 (August 11, 2014)) that retaining Stage II in the presence of widespread use of ORVR equipment not only does not further reduce refueling emissions—it actually increases emissions due to an incompatibility between certain Stage II equipment and ORVR. Removal of Virginia Stage II regulatory requirements will not interfere with any of the Virginia areas' ability to achieve or maintain any NAAQS. Virginia's Stage II removal demonstration SIP revisions which EPA approved clearly showed removal of Stage II requirements would not interfere with any applicable CAA requirement concerning reasonable further progress or attainment of a NAAQS or any other CAA requirement, per section 110(l) of the CAA. Virginia's SIP-approved demonstrations show that ORVR systems alone will achieve emission reductions equivalent to Stage II and ORVR combined in all three Virginia areas which were subject to Stage II. Virginia's noninterference demonstrations were performed in accordance with EPA's final rule determining that ORVR is now in “widespread use” in the national motor vehicle fleet (May 16, 2012 (77 FR 28770)) and with EPA's “Guidance on Removing Stage II Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures” (EPA-457/B-12-001, August 7, 2012), hereafter referred to as EPA's Stage II Removal Guidance. A copy of this guidance has been placed in the public docket for this action.

    Virginia's March 18, 2014 SIP revision demonstrated that removal of Stage II in the Washington and Fredericksburg Areas would not increase emissions under the approved ozone attainment plan for the Northern Virginia portion of the Washington, DC nonattainment area or the approved ozone maintenance plan for the Fredericksburg Area, and would not interfere with these areas' ability to attain and maintain the ozone or any other NAAQS. EPA approved Virginia's March 18, 2014 SIP revision on May 26, 2015 (80 FR 29959).

    Virginia's November 12, 2013 SIP revision amended the approved maintenance plan SIP for the Richmond Area to demonstrate that removal of the Stage II program would not interfere with this area's ability to attain the ozone NAAQS. EPA approved Virginia's November 12, 2013 SIP revision on August 11, 2014 (79 FR 46711).

    These prior, approved Stage II removal demonstration SIPs show that a vast majority of Virginia vehicles being refueled at GDFs are now equipped with vehicle-based ORVR systems, and that these ORVR systems will better control the VOC refueling emissions previously captured by station-based Stage II equipment, making Stage II no longer necessary. Given known incompatibilities between certain types of Stage II equipment used in Virginia and ORVR systems, removal of Stage II regulatory requirements and the resultant decommissioning of Stage II systems has been demonstrated by Virginia (in its November 2013 and March 2014 SIP revisions) to not interfere with air quality in the applicable areas of the Commonwealth. The science and rationale behind allowing Virginia to remove Stage II equipment from these areas was fully discussed in the SIP noninterference demonstrations approved by EPA on August 11, 2014 and May 26, 2015. This action relies upon those demonstrations and serves only to remove the Stage II requirements, which Virginia has already removed from its own regulations, from the SIP.

    Therefore, the commenter's assertion that keeping Stage II as a requirement along with ORVR would better maintain air quality than ORVR alone is contrary to the prior air quality demonstration SIPs submitted by Virginia (and approved by EPA), which demonstrate that air quality in affected areas of Virginia is not adversely impacted by removal of the Stage II requirement.

    Comment: The commenter generally supports EPA's action to approve Virginia's regulatory amendments to remove Stage II, as use of ORVR and Stage II is “terribly inefficient.” However, the commenter argues that the term “widespread use” in reference to ORVR is vague. The commenter wants EPA to ensure that policies that require ORVR be mandatory be implemented in place of Stage II. The commenter asserts that ORVR is better than Stage II as a means of recovering refueling emissions, but having neither in place would be worse than having them both—even if they are incompatible.

    Response: Preliminarily, EPA disagrees with the commenter's assertion that ORVR is not required or that policies requiring ORVR are not in place. EPA promulgated ORVR standards on April 6, 1994 at 59 FR 16262, codified at 40 CFR parts 86 (including 86.098-8), 88, and 600. Beginning model year 1998, ORVR was phased-in as a required system on new passenger vehicles, and has been required on nearly all new highway vehicles manufactured since model year 2006. Consequently, ORVR is used in such vehicles and controls VOC emissions throughout the United States, no matter how any areas are designated and classified with respect to the ozone NAAQS.

    Under CAA section 182 (b)(3), Stage II is required to be used at GDFs located in areas classified as serious or worse ozone nonattainment areas, and consequently controls VOC emissions only in such areas and in areas covered by a “comparable measures” SIP under section 184. Originally, CAA section 182(b)(3) also required Stage II in moderate ozone nonattainment areas; however, section 202(a)(6) directed that the moderate area requirement no longer applied after EPA promulgated ORVR standards in 1994. EPA issued a final rule on May 16, 2012 (77 FR 28770) determining that ORVR was then in “widespread use” in the national motor vehicle fleet, under authority of section 202(a)(6). As a result, EPA waived Stage II requirements under section 182 for ozone nonattainment areas classified as serious or above. States previously required to implement Stage II under section 182(b)(3) could take action to remove their Stage II program requirements via revisions to their SIPs.

    EPA disagrees with the commenter's assertion that “widespread use” is vaguely defined and that EPA does not have clearly defined policies that require ORVR in place of Stage II. EPA's May 2012 “widespread use” determination rule, which no one timely challenged and cannot be challenged now, clearly defined what constitutes widespread use of ORVR, and sets forth how EPA's widespread use determination relates to states with Stage II programs in their SIPs. Subsequent to issuance of the “widespread use” determination action, EPA issued its Stage II removal guidance document, for use by states in developing SIP revisions to remove Stage II while demonstrating that interference with attainment or maintenance of a NAAQS will not occur. Virginia's prior, EPA-approved, Stage II removal demonstration SIP revisions show not only that removal of Stage II will not jeopardize air quality goals for affected Washington, Fredericksburg, and Richmond Areas, but also that ORVR alone will achieve greater emission reductions than ORVR in combination with Stage II in those Virginia Stage II program areas.

    Finally, because EPA has stated that ORVR is required, EPA disagrees with the implication from the commenter that our approval of the removal of Stage II from the Virginia SIP would leave no vapor recovery system in place. ORVR provides for vapor recovery.

    IV. Final Action

    In accordance with section 110 of the CAA, EPA is approving Virginia's revision to its SIP to amend its Stage II vapor recovery regulatory provisions to remove the requirement for Virginia area GDFs to operate Stage II in areas formerly subject to Stage II under CAA sections 182 and 184, and to add provisions to allow GDFs currently operating Stage II equipment the option to decommission those systems.

    Specifically, EPA is approving and incorporating by reference the Virginia SIP revision that amended the Commonwealth's Rule 4-37 governing petroleum liquid and transfer operations applicable to existing stationary sources, which includes modified requirements for the Commonwealth's Stage II vapor recovery program in 9-VAC5-5220 and 9VAC5-5270, effective July 20, 2015.

    EPA is approving this SIP revision because Virginia has previously demonstrated through its two prior approved Stage II SIP noninterference demonstrations that removal of the Stage II program regulatory requirement will not result in an increase in emissions that could interfere with Virginia's attainment or maintenance of the ozone NAAQS or any other applicable CAA requirement.

    V. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

    On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

    Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its revised Stage II program regulations consistent with the relevant federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

    VI. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Virginia's amendments to Article 37 of 9VAC5-40 and also amendments to Virginia's general provisions at 9VAC5-20-21, reflecting the addition of a new source of documents incorporated by reference, effective on July 20, 2015. Additionally, EPA is approving Virginia's amended Rule 4-37 governing petroleum liquid and transfer operations applicable to existing stationary sources, specifically 9-VAC5-5220 and 9VAC5-5270, effective July 20, 2015.

    Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 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).

    1 62 FR 27968 (May 22, 1997).

    VII. Statutory and Executive Order Reviews A. General Requirements

    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 action:

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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).

    B. Submission to Congress and the Comptroller General

    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).

    C. Petitions for Judicial Review

    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 July 10, 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 to amend Virginia's Stage II regulatory provisions 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, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 14, 2017. Cecil Rodrigues, Acting Regional Administrator, Region III.

    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 VV—Virginia 2. In § 52.2420: a. The table in paragraph (c) is amended by revising the entry for Section 5-40-5220 and by adding an entry for Section 5-40-5270; and b. The table in paragraph (e) is amended by revising the entry for “Documents Incorporated by Reference (9 VAC 5-20-21, Section B.)” and by adding an entry for “Documents Incorporated by Reference (9 VAC 5-20-21, Section E.15.).”

    The revisions and additions read as follows:

    § 52.2420 Identification of plan.

    (c) * * *

    EPA-Approved Virginia Regulations and Statutes State citation Title/subject State
  • effective
  • date
  • EPA approval date Explanation
  • [former SIP citation]
  • *         *         *         *         *         *         * 9 VAC 5, Chapter 40 Existing Stationary Sources *         *         *         *         *         *         * Part II Emissions Standards *         *         *         *         *         *         * Article 37 Emission Standards for Petroleum Liquid Storage and Transfer Operations (Rule 4-37) *         *         *         *         *         *         * 5-40-5220 Standard for Volatile Organic Compounds 07/30/2015 05/10/2017 [Insert Federal Register Citation] *         *         *         *         *         *         * 5-40-5270 Standard for Toxic Pollutants 07/30/2015 05/10/2017 [Insert Federal Register Citation] *         *         *         *         *         *         *

    (e) * * *

    Name of non-regulatory SIP revision Applicable geographic area State
  • submittal
  • date
  • EPA approval date Additional explanation
    *         *         *         *         *         *         * Documents Incorporated by Reference (9 VAC 5-20-21, Section B.) Northern Virginia (Metropolitan Washington) Ozone Nonattainment Area, Fredericksburg Ozone Maintenance Area, Richmond-Petersburg Ozone Maintenance Area 10/1/2015 05/10/2017 [Insert Federal Register Citation] State effective date is 7/30/15. *         *         *         *         *         *         * Documents Incorporated by Reference (9 VAC 5-20-21, Section E.15.) Northern Virginia (Metropolitan Washington) Ozone Nonattainment Area, Fredericksburg Ozone Maintenance Area, Richmond-Petersburg Ozone Maintenance Area 10/1/2015 05/10/2017 [Insert Federal Register Citation] State effective date is 7/30/15. *         *         *         *         *         *         *
    [FR Doc. 2017-09387 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0645; FRL-9962-11-Region 5] Air Plan Approval; Indiana; Commissioner's Order for SABIC Innovative Plastics AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving, as a revision to the Indiana State Implementation Plan (SIP), a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 5, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO2) emission limits for SABIC Innovative Plastics (SABIC). IDEM submitted this order so the area near SABIC can be designated “attainment” of the 2010 primary SO2 National Ambient Air Quality Standards (NAAQS), a matter that will be addressed in a separate future rulemaking. EPA's approval of this this order would make these SO2 emission limits and applicable reporting, recordkeeping, and compliance demonstration requirements part of the federally enforceable Indiana SIP.

    DATES:

    This direct final rule is be effective July 10, 2017, unless EPA receives adverse comments by June 9, 2017. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Nos. EPA-R05-OAR-2016-0645 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, 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, 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:

    Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. Why did IDEM issue this Commissioner's Order? II. What are the SO2 limits in this Commissioner's Order? III. By what criterion is EPA reviewing this SIP revision? IV. What action is EPA taking? V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Why did IDEM issue this Commissioner's Order?

    On December 5, 2016, IDEM submitted for approval, as a revision to the Indiana SIP, an order issued by IDEM's Commissioner that establishes SO2 emission limits for SABIC. SO2 emission limits for SABIC previously did not exist in the Indiana SIP. IDEM established these emission limits so the area near SABIC can qualify in the future for being designated “attainment” of the 2010 primary SO2 NAAQS. The history of the 2010 SO2 NAAQS designation process and the applicable Data Requirements Rule (DRR) is explained below in order to provide a more detailed explanation of the context for IDEM's request.

    On June 3, 2010, pursuant to section 109 of the Clean Air Act (CAA), EPA revised the primary (health-based) SO2 NAAQS by establishing a new one-hour standard codified at title 40 Code of Federal Regulations (CFR) section 50.17 (75 FR 35520). Pursuant to section 107(d) of the CAA, EPA must designate areas as either “unclassifiable,” “attainment,” or “nonattainment” for the 2010 one-hour SO2 primary NAAQS. Under Section 107(d) of the CAA, a nonattainment area is any area that does not meet the NAAQS or that contributes to a violation in a nearby area. An attainment area is any area, other than a nonattainment area, that meets the NAAQS. Unclassifiable areas are those that cannot be classified on the basis of available information as meeting or not meeting the NAAQS.

    On August 5, 2013, EPA published a final rule designating 29 areas in the United States as nonattainment for the 2010 SO2 NAAQS, based on recorded air quality monitoring data from 2009-2011 that showed violations of the NAAQS (78 FR 47191). In that rulemaking, EPA committed to address, in separate future actions, the designations for all other areas for which EPA was not yet prepared to issue designations.

    Following the initial August 5, 2013, designations, three lawsuits were filed against EPA in different U.S. District Courts, alleging that EPA had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by June 2013, three years after the promulgation of the revised SO2 NAAQS, as required by Section 107(d) of the CAA. In an effort intended to resolve the litigation in one of those cases, plaintiffs Sierra Club and the Natural Resources Defense Council and EPA filed a proposed consent decree with the U.S. District Court for the Northern District of California. On March 2, 2015, the Court entered the consent decree and issued an enforceable order for EPA to complete the area designations according to the Court-ordered schedule.1 The consent decree required EPA to complete the designations in three additional rounds following EPA's original designations (Round 1): Round 2 by July 2, 2016, Round 3 by December 31, 2017, and Round 4 by December 31, 2020. This action falls within Round 3 of the designation process.

    1Sierra Club et al. v. EPA, No. 3:13-cv-3953-SI (N.D.Cal.).

    Under the DRR (80 FR 51052), each state air agency was required to submit a list to the EPA by January 15, 2016, that identified all sources within the state that had SO2 emissions exceeding 2,000 tons per year (tpy) during the most recent year for which emissions data for those sources were available, plus any additional sources and their associated areas identified by the state air agency or by the EPA as also warranting air quality characterization due to their potential to contribute to an SO2 NAAQS violation.

    According to IDEM, SABIC emitted 4,030 tons of SO2 in 2014, exceeding the 2,000 tpy threshold, and therefore Indiana identified SABIC as one of eleven facilities in the state as being subject to the air quality characterization requirements of the DRR. To satisfy the requirements of the DRR, states must characterize local SO2 concentrations with either air dispersion modeling or ambient air monitoring. States also have the option to establish a permanent and federally enforceable facility-wide limit on SO2 emissions from a listed source to below 2,000 tpy. On June 30, 2016, Indiana informed EPA that SABIC had selected the dispersion modeling option to characterize the local SO2 concentrations in the area surrounding the facility. Indiana also wrote on September 26, 2016, to inform EPA that it planned to pursue federally enforceable limits for SABIC as a means to provide for attainment in the area.

    Under the DRR, for sources such as SABIC that the state has elected to address through modeling, the state is required to submit modeling by January 13, 2016, characterizing nearby air quality. Under the DRR, Indiana may submit modeling showing that the applicable limits provide for attainment of the standard, but only if these limits are federally enforceable.

    SABIC requested a Commissioner's Order from IDEM to be submitted to EPA so as to establish federally enforceable and permanent SO2 emission limits that will ensure modeled attainment of the 2010 SO2 NAAQS in accordance with EPA's Draft SO 2 NAAQS Designations Modeling Technical Assistance Document. 2 Therefore, IDEM conducted air dispersion modeling using the American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD) version 15181 in accordance with appendix W of 40 CFR part 51 to determine SO2 emission limits for SABIC that should result in modeled attainment of the 2010 SO2 NAAQS in the area near this facility.

    2Draft SO 2 NAAQS Designations Modeling Technical Assistance Document. December 2013. http://www3.epa.gov/airquality/sulfurdioxide/pdfs/SO 2 ModelingTAD.pdf.

    IDEM has requested that EPA approve Commissioner's Order 2016-03 for SABIC as part of Indiana's SIP. If EPA approves the SO2 emission limits contained in these orders, they would become federally enforceable. Once these SO2 emission limits have become federally enforceable, IDEM intends to use them to demonstrate modeled attainment for the 2010 SO2 NAAQS for the area near SABIC. To be clear, the purpose of this rulemaking is to take action on IDEM's request to approve these SO2 emission limits into the Indiana SIP and thereby make them federally enforceable. The purpose of this rulemaking is not to take action on whether these SO2 emission limits are adequate for EPA to designate attainment of the 2010 SO2 NAAQS for the area near SABIC. EPA intends to complete 2010 SO2 NAAQS designations for areas under the Federal consent decree deadlines, including the area near SABIC, in separate rulemakings.

    II. What are the SO2 limits in these Commissioner's Orders?

    For SABIC, Indiana issued Commissioner's Order 2016-03 on October 20, 2016, with an effective date of January 13, 2017. This order established SO2 emission limits for 20 emission units within the SABIC facility. According to IDEM, the COS Vent Oxidizer and the COS Flare units contribute the most to SO2 ambient air concentrations in the area. Within the SABIC process line, the COS Vent Oxidizer is the primary control device, and the COS Flare serves as a back-up to the oxidizer or is used during safety interlock of the system. The function of both units is to eliminate the sulfur-containing compounds in the regeneration gas via thermal combustion. The order established the following emissions rates for the COS Vent Oxidizer and the COS Flare: (a) 415 lb/hr, one-hour average; and (b) 269.21 lb/hr, twenty-four hour rolling average, based on daily coke usage and daily sulfur input. The 18 other emission limits for ancillary units are minor contributors to the overall SO2 ambient air concentrations in the area, and are listed in Table 1 below.

    Table 1—Emission Limits for Ancillary Units Unit name Emission limit
  • (lb/hr, one-
  • hour average)
  • NE Boiler (01-101) 0.15 BW Gas (01-014) 0.15 H-790 (12-701) 0.02 H-520 (03-007) 0.0045 H-530A (03-008) 27.8 H-530B (03-008) 27.8 H-390 (12-169) 0.0102 H-900 (13-049) 1.86 H-900B (13-321) 0.0188 SC 1/2 (13-155) 0.0008 H-7090 (04-063) 0.00235 H-6060 (04-050) 0.00153 F-972 (08-001) 0.518 COGEN (19-001) 1.17 AUX BOILER (19-002) 0.15 AUX2 BOILER (19-003) 0.15 CG1 BOILER (19-004) 0.15 R BOILER (09-106) 0.11
    III. By what criterion is EPA reviewing this SIP revision?

    EPA has evaluated this revision on the basis of whether it strengthens Indiana's SIP. Prior to Commissioner's Order 2016-03, there were no specific SO2 emission limitations in the SIP applicable to SABIC. The SO2 emission limits contained in Commissioner's Order 2016-03 for SABIC establish permanent and enforceable limits, and should, therefore, strengthen Indiana's SIP.

    The adequacy of these limits for providing for attainment is not a prerequisite for approval of these limits. Nevertheless, the purpose of these limits is ultimately to provide for attainment, and EPA is working with Indiana to assure a proper analysis of the adequacy of these limits for this purpose.

    IV. What action is EPA taking?

    EPA is approving Commissioner's Order 2016-03 as part of the Indiana SIP. The Commissioner's Order strengthens Indiana's SIP by incorporating SO2 emission limits for SABIC, which did not have any specific SO2 emission limits for SABIC previously. By approving the Commissioner's Order into the Indiana SIP, these SO2 emission limits and applicable reporting, recordkeeping, and compliance demonstration requirements contained in the order would become federally enforceable, and strengthen the Indiana SIP.

    We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective July 10, 2017 without further notice unless we receive relevant adverse written comments by June 9, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective July 10, 2017.

    V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana Commissioner's Order described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.3 EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and/or at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    3 62 FR 27968 (May 22, 1997).

    VI. 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 action:

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, 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 July 10, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: April 20, 2017. Robert A. Kaplan, Acting Regional Administrator, Region 5.

    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.

    2. In § 52.770 the table in paragraph (d) is amended by adding an entry for “SABIC Innovative Plastics” to read as follows:
    § 52.770 Identification of plan.

    (d) * * *

    EPA-Approved Indiana Source-Specific Provisions CO date Title SIP rule EPA approval Explanation *         *         *         *         *         *         * 10/20/2016 SABIC Innovative Plastics N.A 5/10/2017, [Insert Federal Register citation] Limitation intended to support attainment designation. *         *         *         *         *         *         *
    [FR Doc. 2017-09385 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0430; FRL-9961-89-Region 4] Air Quality Plans; Tennessee; Infrastructure Requirements for the 2012 PM2.5 National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submission, submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on December 16, 2015, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 annual fine particulate matter (PM2.5) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” TDEC certified that the Tennessee SIP contains provisions that ensure the 2012 Annual PM2.5 NAAQS is implemented, enforced, and maintained in Tennessee. EPA is finalizing its determination that Tennessee's infrastructure SIP submission, provided to EPA on December 16, 2015, satisfies certain required infrastructure elements for the 2012 Annual PM2.5 NAAQS.

    DATES:

    This rule will be effective June 9, 2017.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0430. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., 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 www.regulations.gov or in hard copy at the Air Regulatory Management Section, 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. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Tiereny Bell, Air Regulatory Management Section, 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. Ms. Bell can be reached via electronic mail at [email protected] or via telephone at (404) 562-9088.

    SUPPLEMENTARY INFORMATION:

    I. Background and Overview

    On December 14, 2012, EPA promulgated a revised primary annual PM2.5 NAAQS. The standard was strengthened from 15.0 micrograms per cubic meter (μg/m3) to 12.0 μg/m3. See 78 FR 3086 (January 15, 2013). Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2012 Annual PM2.5 NAAQS to EPA no later than December 14, 2015.

    In a proposed rulemaking published on January 9, 2017 (82 FR 2295), EPA proposed to approve portions of Tennessee's December 16, 2015, SIP submission for the 2012 Annual PM2.5 NAAQS. The details of Tennessee's submission and the rationale for EPA's actions for this final rule are explained in the January 9, 2017 proposed rulemaking. Comments on the proposed rulemaking were due on or before February 8, 2017. EPA received no comments.

    II. Final Action

    EPA is taking final action to approve Tennessee's infrastructure submissions submitted on December 16, 2015, for the 2012 Annual PM2.5 NAAQS for the infrastructure SIP requirements, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (I) (prongs 1, 2 and 4). EPA notes that the Agency is not approving any specific rule, but rather approving that Tennessee's already approved SIP meets certain CAA requirements. With respect to the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (I) (prongs 1, 2 and 4), EPA will consider these requirements in relation to Tennessee's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking. EPA is taking final action to approve all other elements of Tennessee's infrastructure SIP submissions for the 2012 Annual PM2.5 NAAQS because the submission is consistent with section 110 of the CAA.

    III. 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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

    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 July 10, 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, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 17, 2017. V. Anne Heard, Acting Regional Administrator, Region 4.

    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 RR—Tennessee 2. Section 52.2220(e), is amended by adding entry “110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS” at the end of the table to read as follows:
    § 52.2220 Identification of plan.

    (e) * * *

    EPA-Approved Tennessee Non-Regulatory Provisions Name of non-regulatory SIP provision Applicable geographic or nonattainment area State
  • effective date
  • EPA
  • approval date
  • Explanation
    *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS Tennessee 11/19/2015 5/10/2017, [Insert citation of publication] With the exception of interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2 and 4).
    [FR Doc. 2017-09390 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0707; FRL-9962-09-Region 5] Air Plan Approval; Indiana; Commissioner's Order for Carmeuse Lime, Inc. AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving, as a revision to the Indiana State Implementation Plan (SIP), a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 22, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO2) emission limits for Carmeuse Lime, Inc. (Carmeuse), applicable to its Gary, Indiana lime manufacturing plant. IDEM submitted this order so the area near Carmeuse can be designated “attainment” of the 2010 primary SO2 National Ambient Air Quality Standards (NAAQS), a matter that will be addressed in a separate future rulemaking. EPA's approval of this order would make these SO2 emission limits and applicable reporting, recordkeeping, and compliance demonstration requirements part of the federally enforceable Indiana SIP.

    DATES:

    This direct final rule will be effective July 10, 2017, unless EPA receives adverse comments by June 9, 2017. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Nos. EPA-R05-OAR-2016-0707 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, 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, 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:

    Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. Why did IDEM issue this commissioner's order? II. What are the SO2 limits in this commissioner's order? III. By what criterion is EPA reviewing this SIP revision? IV. What action is EPA taking? V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Why did IDEM issue this commissioner's orders?

    On December 22, 2016, IDEM submitted for approval, as a revision to the Indiana SIP, an order issued by IDEM's Commissioner that establishes SO2 emission limits for Carmeuse. SO2 emission limits for Carmeuse previously did not exist in the Indiana SIP. IDEM established these emission limits so the area near Carmeuse can qualify in the future for being designated “attainment” of the 2010 primary SO2 NAAQS. The history of the 2010 SO2 NAAQS and the applicable Data Requirements Rule (DRR) is explained below in order to provide a more detailed explanation of the context for IDEM's request.

    On June 3, 2010, pursuant to section 109 of the Clean Air Act (CAA), EPA revised the primary (health-based) SO2 NAAQS by establishing a new one-hour standard codified at title 40 Code of Federal Regulations (CFR) section 51.17 (75 FR 35520). Pursuant to section 107(d) of the CAA, EPA must designate areas as either “unclassifiable,” “attainment,” or “nonattainment” for the 2010 one-hour SO2 primary NAAQS. Under Section 107(d) of the CAA, a nonattainment area is any area that does not meet the NAAQS or that contributes to a violation in a nearby area. An attainment area is any area, other than a nonattainment area, that meets the NAAQS. Unclassifiable areas are those that cannot be classified on the basis of available information as meeting or not meeting the NAAQS.

    On August 5, 2013, EPA published a final rule designating 29 areas in the United States as nonattainment for the 2010 SO2 NAAQS, based on recorded air quality monitoring data from 2009-2011 that showed violations of the NAAQS (78 FR 47191). In that rulemaking, EPA committed to address, in separate future actions, the designations for all other areas for which EPA was not yet prepared to issue designations.

    Following the initial August 5, 2013, designations, three lawsuits were filed against EPA in different U.S. District Courts, alleging that EPA had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by June 2013, three years after the promulgation of the revised SO2 NAAQS, as required by Section 107(d) of the CAA. In an effort intended to resolve the litigation in one of those cases, plaintiffs Sierra Club and the Natural Resources Defense Council and EPA filed a proposed consent decree with the U.S. District Court for the Northern District of California. On March 2, 2015, the Court entered the consent decree and issued an enforceable order for EPA to complete the area designations according to the Court-ordered schedule.1 The consent decree required EPA to complete the designations in three additional rounds following EPA's original designations (Round 1): Round 2 by July 2, 2016, Round 3 by December 31, 2017, and Round 4 by December 31, 2020. This action falls within Round 3 of the designation process.

    1Sierra Club et al. v. EPA, No. 3:13-cv-3953-SI (N.D.Cal.)

    Under the DRR (80 FR 51052), each state air agency was required to submit a list to the EPA by January 15, 2016, that identified all sources within the state that had SO2 emissions exceeding 2,000 tons per year (tpy) during the most recent year for which emissions data for those sources were available, plus any additional sources and their associated areas identified by the air agency or by the EPA as also warranting air quality characterization due to their potential to contribute to an SO2 NAAQS violation.

    Carmeuse's lime manufacturing plant was not identified by IDEM as one of the sources covered by the DRR since the SO2 emissions from the facility did not exceed 2,000 tpy; but IDEM determined that emissions from the plant could adversely impact overall SO2 air quality for Lake County. Based on modeling conducted by Indiana in accordance with EPA's Draft SO 2 NAAQS Designations Modeling Technical Assistance Document, 2 these emission limits in the Commissioner's Order will ensure modeled attainment of the 2010 SO2 NAAQS. IDEM conducted air dispersion modeling using the American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD) version 15181 in accordance with appendix W of 40 CFR part 51 to determine SO2 emission limits for Carmeuse that will ensure modeled attainment of the 2010 SO2 NAAQS in the area near this facility.

    2Draft SO 2 NAAQS Designations Modeling Technical Assistance Document. December 2013. http://www3.epa.gov/airquality/sulfurdioxide/pdfs/SO 2 ModelingTAD.pdf.

    IDEM has requested that EPA approve Commissioner's Order 2016-04 for Carmeuse as part of the Indiana's SIP. If EPA approves the SO2 emission limits contained in these orders, they will become federally enforceable. Once these SO2 emission limits have become federally enforceable, IDEM intends to use them to demonstrate modeled attainment for the 2010 SO2 NAAQS for the area near Carmeuse. To be clear, the purpose of this rulemaking is to take action on IDEM's request to approve these SO2 emission limits into the Indiana SIP and thereby make them federally enforceable. The purpose of this rulemaking is not to take action on whether these SO2 emission limits are adequate for EPA to designate attainment of the 2010 SO2 NAAQS for the area near Carmeuse. EPA intends to complete 2010 SO2 NAAQS designations for areas under the Federal consent decree deadlines, including the area near Carmeuse, in separate rulemakings.

    II. What are the SO2 limits in this commissioner's orders?

    Indiana issued Commissioner's Order 2016-04 on November 15, 2016, with an effective date of 18 days after issuance. This order established SO2 emission limits for five kilns (with six stacks per kiln) at the Carmeuse facility. Modeling for the Commissioner's Order showed that an emission limit of 12.0 pounds per hour of SO2 for each kiln, or 2.0 pounds per hour for each stack, would ensure attainment of the 2010 SO2 NAAQS. Indiana calculated a rolling 720-operating-hour average limit of 9.48 pounds per hour for each kiln, based on a flat averaging ratio of 0.79 recommended in EPA's Guidance for 1-hour SO 2 Nonattainment Area SIP Submission. This limit has a comparable stringency to an hourly emission limit. The Commissioner's Order requires that Carmeuse comply with this rolling 720-operating-hour average limit of 9.48 pound per hour per kiln, beginning seven days from the issuance of the permit modification required to allow the use of natural gas within the affected kilns.

    III. By what criterion is EPA reviewing this SIP revision?

    EPA has evaluated this revision on the basis of whether it strengthens Indiana's SIP. Prior to Commissioner's Order 2016-04, there were no specific SO2 emission limitations in the SIP applicable to Carmeuse, nor were there any applicable SO2 limits identified in its part 70 Operating Permit. The SO2 emission limits in Commissioner's Order 2016-04 for Carmeuse establish permanent and federally enforceable limits, and should, therefore, strengthen Indiana's SIP.

    The adequacy of these limits for providing for attainment is not a prerequisite for approval of these limits. Nevertheless, the purpose of these limits is ultimately to provide for attainment, and EPA is working with Indiana to assure a proper analysis of the adequacy of these limits for this purpose.

    IV. What action is EPA taking?

    EPA is approving Commissioner's Order 2016-04 as part of the Indiana SIP. Incorporating the order's SO2 emission limits and related requirements for Carmeuse as part of the SIP strengthens Indiana's SIP, which did not have any specific SO2 emission limits for Carmeuse previously. By approving the Commissioner's Order into the Indiana SIP, these SO2 emission limits and applicable reporting, recordkeeping, and compliance demonstration requirements contained in the order would become federally enforceable, and strengthen the Indiana SIP.

    We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective July 10, 2017 without further notice unless we receive relevant adverse written comments by June 9, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective July 10, 2017.

    V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana Commissioner's Order described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.3 EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and/or at the EPA Region 5 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

    3 62 FR 27968 (May 22, 1997).

    VI. 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 action:

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, 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 July 10, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: April 27, 2017. Robert A. Kaplan, Acting Regional Administrator, Region 5.

    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.

    2. In § 52.770 the table in paragraph (d) is amended by adding a new entry for “Carmeuse Lime Inc.” to read as follows:
    § 52.770 Identification of plan.

    (d) * * *

    EPA-Approved Indiana Source-Specific Provisions CO date Title SIP rule EPA approval Explanation *         *         *         *         *         *         * 11/16/2016 Carmeuse Lime Inc N.A 5/10/2017, [Insert Federal Register citation] Limitation intended to support attainment designation. *         *         *         *         *         *         *
    [FR Doc. 2017-09382 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-HQ-OAR-2016-0515; FRL-9962-25-OAR] RIN 2060-AT24 Determinations of Attainment by the Attainment Date, Determinations of Failure To Attain by the Attainment Date and Reclassification for Certain Nonattainment Areas for the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is making final determinations of attainment by the attainment date and determinations of failure to attain by the attainment date for ten nonattainment areas currently classified as “Moderate” for the 2006 24-hour fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS). Specifically, the EPA is determining that seven areas attained the 2006 24-hour PM2.5 NAAQS by December 31, 2015, based on complete, quality-assured and certified PM2.5 monitoring data for 2013 to 2015. The EPA is also determining that three areas failed to attain the 2006 24-hour PM2.5 NAAQS by December 31, 2015. Upon the effective date of such determinations of failure to attain the NAAQS, these three areas will be reclassified as “Serious” for the 2006 24-hour PM2.5 NAAQS by operation of law. States with jurisdiction over these nonattainment areas reclassified to Serious are required to submit State Implementation Plan (SIP) revisions that comply with the statutory and regulatory requirements for 2006 24-hour PM2.5 NAAQS nonattainment areas classified as Serious. In this action, the EPA is not making any final determination regarding its proposed determination for the Logan, Utah-Idaho, nonattainment area.

    DATES:

    This rule is effective June 9, 2017.

    ADDRESSES:

    The EPA has established a docket, identified by Docket ID No. EPA-HQ-OAR-2016-0515, that can be found online at https://www.regulations.gov. Although listed in the index, some information may not be publicly available, e.g., Confidential Business Information or other information disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Leigh Herrington, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-0882; fax number: (919) 541-5315; email address: [email protected]

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

    Entities affected by this action include six states with one or more areas designated nonattainment and classified as “Moderate” for the 2006 24-hour PM2.5 NAAQS. Entities potentially affected indirectly by this action include owners or operators of sources of emissions of direct PM2.5 or PM2.5 precursors (ammonia, nitrogen oxides, sulfur dioxide and volatile organic compounds) that contribute to PM2.5 levels within the designated nonattainment areas the EPA is addressing in this action.

    B. Where can I get a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this notice will be posted at https://www.epa.gov/pm-pollution/particulate-matter-pm-implementation-regulatory-actions.

    C. How is this document organized? I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. How is this document organized? II. Proposed Actions III. Final Actions A. Determinations of Attainment by the Attainment Date B. Determinations of Failure To Attain by the Attainment Date and Reclassification to Serious C. Public Comments IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) 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. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) L. Judicial Review II. Proposed Actions

    On December 16, 2016 (81 FR 91088), the EPA proposed to find that seven nonattainment areas classified as Moderate attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015, based on complete, quality-assured and certified PM2.5 monitoring data for the 3-year period of 2013 to 2015.1 The seven designated nonattainment areas are: (1) Chico, California; (2) Imperial County, California; (3) Knoxville-Sevierville-La Follette, Tennessee; (4) Liberty-Clairton, Pennsylvania; (5) Nogales, Arizona; (6) Sacramento, California; and, (7) San Francisco Bay Area, California.2

    1 An area's design value for the 24-hour PM2.5 NAAQS is the highest of the 3-year average of annual 98th percentile 24-hour average PM2.5 mass concentration values recorded at any eligible monitoring site (40 CFR part 50, Appendix N, 1.0(c)(2)).

    2 Note that there are three 2006 PM2.5 NAAQS Moderate nonattainment areas not addressed in that proposal or this final action: (1) Klamath Falls, OR; (2) Oakridge, OR; and (3) West Central Pinal, AZ. For the Klamath Falls, OR, nonattainment area, the EPA issued a determination of attainment by the attainment date of December 31, 2014, on June 6, 2016 (81 FR 36176). For the Oakridge, OR, nonattainment area, the EPA issued a 1-year attainment date extension from December 31, 2015, to December 31, 2016, on July 18, 2016 (81 FR 46612). For the West Central Pinal, AZ, nonattainment area, the EPA designated the area as nonattainment on February 3, 2011 (76 FR 6056), and therefore will make a determination about whether or not the area has attained the 2006 PM2.5 NAAQS after the attainment date of December 31, 2017.

    The EPA also proposed to find that four nonattainment areas classified as Moderate failed to attain the 2006 24-hour PM2.5 NAAQS by December 31, 2015: (1) Fairbanks, Alaska; (2) Logan, Utah-Idaho; (3) Provo, Utah; and (4) Salt Lake City, Utah. The proposal stated that, as required by Clean Air Act (CAA) section 188(b)(2), upon finalization of the EPA's determinations that these four areas failed to attain, the areas would be reclassified to Serious by operation of law and would be subject to all applicable Serious area attainment planning and nonattainment New Source Review (NNSR) requirements. In the December 2016 proposal, the EPA also discussed its determination that the Logan, Utah-Idaho, multistate nonattainment area did not qualify for a 1-year attainment date extension, despite the state of Idaho's request for such an extension, due to a lack of valid air quality data for calendar year 2015.

    The proposal also explained that under CAA section 188(b)(2) and the EPA's final rule, titled, “Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements” (81 FR 58010, August 24, 2016) (hereinafter “PM2.5 SIP Requirements Rule”), a state is required to make a SIP submission to address the statutory and regulatory requirements for any area that has been reclassified to Serious under CAA section 188(b)(2) within 18 months from the effective date of reclassification, or 2 years before the attainment date, whichever is earlier. See 40 CFR 51.1003(b)(2)(ii). Thus, Serious area attainment plan submissions for the areas reclassified in this action will be due by December 31, 2017, and consistent with CAA section 188(c)(2), the affected states will be required to demonstrate that the area will attain the standard as expeditiously as practicable, but no later than December 31, 2019 (the end of the tenth calendar year following the effective date of designation of the area). The EPA notes that states with areas reclassified to Serious may also elect to seek an extension of the applicable attainment date pursuant to CAA section 188(e), if they meet the applicable criteria.

    III. Final Actions A. Determinations of Attainment by the Attainment Date

    For this rulemaking, the EPA evaluated data from air quality monitors in 10 nonattainment areas classified as Moderate for the 2006 24-hour PM2.5 NAAQS in order to determine the attainment status of each area as of the December 31, 2015, attainment date. Each of the seven nonattainment areas for which the EPA proposed determinations of attainment by the attainment date, listed in Table 1, had valid monitoring data and a design value equal to or less than 35 micrograms per cubic meter (μg/m3) based on the 2013 to 2015 monitoring period. The EPA received no adverse comments on these proposed determinations of attainment. Therefore, pursuant to CAA section 188(b)(2) of the CAA, the agency is making final determinations that these seven nonattainment areas attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. The EPA's determinations are based upon 3 years of complete, quality-assured and certified data for calendar years 2013 to 2015. The monitoring data for the 3 years (2013 to 2015) used to calculate each monitor's design value are provided in a technical support document (TSD) in the docket for this action.3

    3See, “Technical Support Document Regarding PM2.5 Monitoring Data—Determinations of Attainment by the Attainment Date, Determinations of Failure to Attain by the Attainment Date and Reclassification for Certain Nonattainment Areas for the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality Standards,” dated April 19, 2017, within this action's docket.

    Once effective, this action satisfies the EPA's obligation pursuant to CAA section 188(b)(2) to determine whether these seven areas attained the standard by the applicable attainment date. These determinations of attainment do not constitute a redesignation to attainment. Rather, redesignations require states to meet a number of additional statutory criteria in CAA section 107(d)(3), including EPA approval of a state plan demonstrating maintenance of the air quality standard for 10 years after redesignation.

    B. Determinations of Failure To Attain by the Attainment Date and Reclassification to Serious

    In its December 2016 proposal, the EPA proposed to determine that four nonattainment areas (Fairbanks, Alaska; Logan, Utah-Idaho; Provo, Utah; and Salt Lake City, Utah) failed to attain the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015, because the 2013 to 2015 design value for at least one monitor in each area exceeded the 2006 24-hour PM2.5 NAAQS of 35 μg/m3. The TSD provided in the docket shows the quality-assured monitoring data for the relevant years for each of these nonattainment areas, as well as the 3-year design value calculations for each area.

    Pursuant to CAA section 188(b)(2), the EPA is finalizing the proposed determinations that three areas (Fairbanks, Alaska; Provo, Utah; and Salt Lake City, Utah) failed to attain the 2006 24-hour PM2.5 NAAQS by the applicable December 31, 2015, attainment date.4 Therefore, upon the effective date of this rule, these three Moderate nonattainment areas will be reclassified by operation of law to Serious for the 2006 PM2.5 standards. A Serious PM2.5 nonattainment area is required to attain the standard as expeditiously as practicable, but no later than by the end of the tenth year after designation (December 31, 2019).

    4 Since the issuance of the December 2016 proposed action, the state of Utah has provided additional information for the monitoring sites in the Logan, Utah-Idaho, area. The EPA needs additional time to consider this information, and, therefore, is not taking final action for the Logan, Utah-Idaho, area in this notice. The EPA intends to act separately on the Logan, Utah-Idaho, area.

    Table 1 provides a summary of the determinations of attainment and determinations of failure to attain (reclassifications) being finalized in this action.

    Table 1—Summary of Determinations of Attainment by the Attainment Date/Reclassifications for Certain Moderate Nonattainment Areas for the 2006 24-Hour PM2.5 NAAQS 2006 24-hour PM2.5 NAAQS nonattainment area 2013-2015 Design value
  • (μg/m3)
  • Final action
    Chico, CA 29 Determination of attainment. Fairbanks, AK 124 Failed to attain; reclassification to Serious. Imperial County, CA 33 Determination of attainment. Knoxville-Sevierville-La Follette, TN 20 Determination of attainment. Liberty-Clairton, PA 33 Determination of attainment. Nogales, AZ 28 Determination of attainment. Provo, UT * 50 Failed to attain; reclassification to Serious. Sacramento, CA 35 Determination of attainment. Salt Lake City, UT * 45 Failed to attain; reclassification to Serious. San Francisco Bay Area, CA 30 Determination of attainment. * See April 19, 2017, memorandum titled, Salt Lake and Provo, Utah PM 2.5 2013-2015 24-hour Design Value, from Gail Fallon, U.S. EPA, Region 8, to the File.
    C. Public Comments

    The public comment period for the EPA's December 16, 2016, proposal closed on January 17, 2017. To review the comments received on the proposed rule and the Response to Comment document that accompanies this final rule, please go to https://www.regulations.gov and search for Docket ID No. EPA-HQ-OAR-2016-0515. A majority of commenters supported the EPA's proposal to determine that certain nonattainment areas did not attain the 2006 24-hour PM2.5 NAAQS by the applicable attainment date and thus the reclassification of the areas to Serious. The EPA received comments expressing concerns about proposed determinations for the Logan, Utah-Idaho, and Fairbanks, Alaska, nonattainment areas, which are addressed here.

    Comment: Idaho Department of Environmental Quality (DEQ) opposed the EPA's determination not to grant the 1-year extension and subsequent determination that the Logan, Utah-Idaho, nonattainment area failed to attain by the December 31, 2015, attainment date. Idaho DEQ asserted that the area met the requirements under CAA section 188(d) and the PM2.5 SIP Requirements Rule relevant to extensions of the Moderate area attainment date (i.e., that the area has complied with all requirements and commitments pertaining to the area in the applicable implementation plans and monitoring data show that the 2015 98th percentile are below the PM2.5 NAAQS for the Franklin County monitor on the Idaho side of the nonattainment area). Idaho DEQ acknowledged that data were incomplete and requested that the EPA determine the area's 2015 98th percentile data using the same data that the EPA used to determine the area's 2013 to 2015 design value.

    Response: The EPA is considering these comments and is not taking final action on the Logan, Utah-Idaho, nonattainment area at this time.

    Comment: Three commenters did not question the EPA's proposed determination that the Fairbanks, Alaska, area failed to attain the 2006 24-hour NAAQS by December 31, 2015, but asserted that the Serious area attainment plan for the Fairbanks, Alaska, 2006 24-hour PM2.5 NAAQS nonattainment area should be due 18 months after the effective date of the Serious area reclassification rather than December 31, 2017. The commenters stated that, under CAA section 189(b)(2), states have 18 months from the effective date of a reclassification to complete plans and that the change in the submission deadline was not proposed during the EPA's rulemaking to promulgate the PM2.5 SIP Requirements Rule. Commenters pointed to “two alternative schedules” for SIP submissions in response to mandatory and discretionary reclassifications to Serious, and allege the EPA's PM2.5 SIP Requirements Rule is “in error by adding the clause that reflects the discretionary reclassification language and mandatory language together.” The Alaska Department of Environmental Conservation also claimed that requiring the state to submit the Serious area attainment plan by December 31, 2017, would result in insufficient time to prepare and adopt a very complex plan with adequate public process and public participation.

    Response: The EPA acknowledges that meeting the Serious area attainment plan submission deadline may be challenging for those areas reclassified from Moderate to Serious in this final action, and understands the desire for additional time. Because the submission due date was established in the final PM2.5 SIP Requirements Rule and the EPA did not propose any changes to this date in its December 2016 proposal, we cannot make changes to this date here. In that prior rulemaking, the EPA addressed the issue of when states must submit Serious area attainment plans when they are reclassified, in order to comport with statutory requirements for the attainment date for such nonattainment areas. Accordingly, EPA promulgated 40 CFR 51.1003(b)(2)(ii), which provides that in the event of a mandatory reclassification from Moderate to Serious upon a determination that an area fails to attain, the state is required to submit the Serious area attainment plan “within 18 months from the effective date of reclassification, or 2 years before the attainment date, whichever is earlier.” 5 The EPA did not reopen the issue of the attainment plan submission date in this action regarding determinations of attainment, and merely noted the submission date for informational purposes. Even though the comment on the SIP submission due date is out of scope for this rulemaking action, the EPA understands the significant effort involved in preparing an attainment plan revision and stands ready to help the state prepare this plan.

    5 In the PM2.5 SIP Requirements Rule, the EPA provided its reasoning for establishing the submission date contained in 40 CFR 51.1003(b)(2)(ii). See generally 81 FR 58074-58078 (comprehensive discussion of the rationale behind plan due dates for areas subject to either a discretionary or a mandatory reclassification to Serious); Response to Comments, pages 134-138, available at https://www.regulations.gov under docket item EPA-HQ-OAR-2013-0691-0145. As EPA explained, “a minimum of 2 years is appropriate because (1) it provides time for emission reduction measures adopted by the state to take effect and improve air quality; (2) it will allow the agency sufficient time to evaluate and act on the Serious area attainment demonstration; and (3) for every other NAAQS, the CAA SIP submission dates are generally 2 years or more prior to the attainment date.” 81 FR 58077. The EPA even included a discussion of what would arise if the deadline were similar to that the commenters are advocating, explaining that “[if] the plan is not submitted until just before year 10, and the agency determines the plan will not lead to attainment, there will be no time to take corrective action before the attainment date to ensure attainment of the NAAQS.” Id.

    The EPA understands that in this particular instance, the submission date for the Serious area attainment plan may be challenging in light of the complexity of the air quality situation in the Fairbanks, Alaska, nonattainment area and the need for public process in adopting plans. The EPA will prioritize working with Alaska to help the state prepare the required Serious area attainment plan as expeditiously and efficiently as possible. The EPA also believes that in light of the December 2015 Moderate area plan developed by the state demonstrating it was impracticable to attain by the Moderate area attainment date of December 31, 2015, and the work already done by the state on the Serious area plan in anticipation of this determination of failure to attain, a Serious area plan can be submitted in a timely manner.

    IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and Budget (OMB) because it will satisfy the CAA obligation to make determinations of attainment based on an area's air quality as of the attainment date.

    B. Paperwork Reduction Act (PRA)

    This rule does not impose any additional information collection burden under the provisions of the PRA, 44 U.S.C. 3501 et seq. This action to find that three Moderate PM2.5 nonattainment areas listed in Table 1 have failed to attain the 2006 24-hour PM2.5 NAAQS by their attainment date and to reclassify those areas as Serious PM2.5 nonattainment areas does not establish any new information collection burden not already covered under OMB control number 2060-0611.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Determinations that certain areas attained the 2006 24-hour PM2.5 NAAQS do not create any new requirements. Determinations that certain nonattainment areas failed to attain the 2006 24-hour PM2.5 NAAQS by their attainment date and the resulting reclassification of these areas by operation of law under CAA section 188(b)(2) similarly do not in and of themselves create any new requirements. Instead, this rulemaking only makes factual determinations, and does not directly regulate any 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 EPA believes, as discussed previously in this document, that a determination of nonattainment is a factual determination based upon air quality considerations, and the resulting reclassification of an area and the associated required revisions to SIPs must occur by operation of law. Thus, this action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Pursuant to the CAA, this action determines whether the 2006 24-hour PM2.5 nonattainment areas listed in Table 1 attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date, and reclassifies as “Serious,” by operation of law, the areas that did not do so.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. No tribal areas are located in the three areas that failed to attain the 2006 24-hour PM2.5 NAAQS by the applicable attainment date. The CAA and the Tribal Authority Rule establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks 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 does not believe any environmental health or safety risks addressed by this action present a disproportionate risk to children. This action determines that three 2006 24-hour PM2.5 nonattainment areas, identified in Table 1, did not attain the 2006 24-hour PM2.5 standard by their applicable attainment date and thus these areas will be reclassified by operation of law as Serious PM2.5 nonattainment areas.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards. This action merely determines that three 2006 24-hour PM2.5 nonattainment areas, identified in Table 1, did not attain the 2006 24-hour PM2.5 standard by their applicable attainment date and thus these areas will be reclassified by operation of law as Serious PM2.5 nonattainment areas.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes 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). This action merely determines that three 2006 24-hour PM2.5 nonattainment areas, identified in Table 1, did not attain by the applicable attainment date and thus these nonattainment areas will be reclassified by operation of law as Serious PM2.5 nonattainment areas. Reclassifying the three nonattainment areas from Moderate to Serious will help protect all of those residing, working, attending school, or otherwise present in those areas regardless of minority or economic status.

    K. Congressional Review Act (CRA)

    This rule is exempt from the CRA because it is a rule of particular applicability that names specific entities where this rule makes factual determinations and does not directly regulate any entities. The determinations of attainment and failure to attain the 2006 24-hour PM2.5 NAAQS (and resulting reclassifications) contained in this final rule do not in and of themselves create any new requirements beyond what is already mandated by the CAA.

    L. Judicial Review

    Under CAA section 307(b)(1) of the CAA, petitions for judicial review of final actions that are locally and regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. However, the statute also provides that notwithstanding that general rule, “a petition for review of any action . . . may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such determination.” 42 U.S.C. 7607(b)(1). See also Dalton Trucking v. EPA, 808 F.3d 875 (D.C. Circuit 2015). Because this final action makes findings with regard to nonattainment areas across the country and interprets the CAA and applies such interpretations to states and nonattainment areas across the country, the Administrator finds that this action has nationwide scope and effect. Therefore, in accordance with CAA section 307(b)(1), petitions for review of this final action may be filed only in the United States Court of Appeals for the District of Columbia Circuit by July 10, 2017. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings for enforcement.

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Ammonia, Fine particulate matter, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxides, Volatile organic compounds.

    40 CFR Part 81

    Environmental protection, Air pollution control, Ammonia, Fine particulate matter, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 28, 2017. E. Scott Pruitt, Administrator. For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is to be 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 D—Arizona 2. Section 52.131 is amended by adding paragraph (c) to read as follows:
    § 52.131 Control Strategy and regulations: Fine Particle Matter.

    (c) Determination of attainment. Effective June 9, 2017, the EPA has determined that, based on 2013 to 2015 ambient air quality data, the Nogales, AZ PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. Therefore, the EPA has met the requirement pursuant to CAA section 188(b)(2) to determine whether the area attained the standard. The EPA also has determined that the Nogales, AZ nonattainment area will not be reclassified for failure to attain by its applicable attainment date under section 188(b)(2).

    Subpart F—California 3. Section 52.247 is amended by adding paragraphs (j), (k), (l), and (m) to read as follows:
    § 52.247 Control Strategy and regulations: Fine Particle Matter.

    (j) Determination of attainment. Effective June 9, 2017, the EPA has determined that, based on 2013 to 2015 ambient air quality data, the Chico, CA PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. Therefore, the EPA has met the requirement pursuant to CAA section 188(b)(2) to determine whether the area attained the standard. The EPA also has determined that the Chico, CA nonattainment area will not be reclassified for failure to attain by its applicable attainment date under section 188(b)(2).

    (k) Determination of attainment. Effective June 9, 2017, the EPA has determined that, based on 2013 to 2015 ambient air quality data, the Imperial County, CA PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. Therefore, the EPA has met the requirement pursuant to CAA section 188(b)(2) to determine whether the area attained the standard. The EPA also has determined that the Imperial County, CA nonattainment area will not be reclassified for failure to attain by its applicable attainment date under section 188(b)(2).

    (l) Determination of attainment. Effective June 9, 2017, the EPA has determined that, based on 2013 to 2015 ambient air quality data, the Sacramento, CA PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. Therefore, the EPA has met the requirement pursuant to CAA section 188(b)(2) to determine whether the area attained the standard. The EPA also has determined that the Sacramento, CA nonattainment area will not be reclassified for failure to attain by its applicable attainment date under section 188(b)(2).

    (m) Determination of attainment. Effective June 9, 2017, the EPA has determined that, based on 2013 to 2015 ambient air quality data, the San Francisco Bay, CA PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. Therefore, the EPA has met the requirement pursuant to CAA section 188(b)(2) to determine whether the area attained the standard. The EPA also has determined that the San Francisco Bay, CA nonattainment area will not be reclassified for failure to attain by its applicable attainment date under section 188(b)(2).

    Subpart NN—Pennsylvania 4. Section 52.2059 is amended by adding paragraph (v) to read as follows:
    § 52.2059 Control strategy: Particulate matter.

    (v) Determination of attainment. Effective June 9, 2017, the EPA has determined that, based on 2013 to 2015 ambient air quality data, the Liberty-Clairton, PA PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. Therefore, the EPA has met the requirement pursuant to CAA section 188(b)(2) to determine whether the area attained the standard. The EPA also has determined that the Liberty-Clairton, PA nonattainment area will not be reclassified for failure to attain by its applicable attainment date under section 188(b)(2).

    Subpart RR—Tennessee 5. Section 52.2231 is amended by adding paragraph (f) to read as follows:
    § 52.2231 Control strategy: Sulfur oxides and particulate matter.

    (f) Determination of attainment. Effective June 9, 2017, the EPA has determined that, based on 2013 to 2015 ambient air quality data, the Knoxville-Sevierville-La Follette, Tennessee PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date of December 31, 2015. Therefore, the EPA has met the requirement pursuant to CAA section 188(b)(2) to determine whether the area attained the standard. The EPA also has determined that the Knoxville-Sevierville-La Follette, Tennessee nonattainment area will not be reclassified for failure to attain by its applicable attainment date under section 188(b)(2).

    PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 6. 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 7. Section 81.302 is amended in the table “Alaska—2006 24-Hour PM2.5 NAAQS (Primary and secondary)” by revising the entries for “Fairbanks, AK” to read as follows:
    § 81.302 Alaska. Alaska—2006 24-Hour PM2.5 NAAQS [Primary and secondary] Designated area Designation a Date 1 Type Classification Date 2 Type Fairbanks, AK: AQCR 09 Northern Alaska Intrastate: Fairbanks North Star Borough (part) Nonattainment 6/9/17 Serious. The following townships and ranges: —MTRS F001N001—All Sections; —MTRS F001N001E—Sections 2-11, 14-23, 26-34; —MTRS F001N002—Sections 1-5, 8-17, 20-29, 32-36; —MTRS F001S001E—Sections 1, 3-30, 32-36; —MTRS F001S001W—Sections 1-30; —MTRS F001S002E—Sections 6-8, 17-20, 29-36; —MTRS F001S002W—Sections 1-5, 8-17, 20-29, 32-33; —MTRS F001S003E—Sections 31-32; —MTRS F002N001E—Sections 31-35; —MTRS F002N001—Sections 28, 31-36; —MTRS F002N002—Sections 32-33, 36; —MTRS F002S001E—Sections 1-2; —MTRS F002S002E—Sections 1-17, 21-24; —MTRS F002S003E—Sections 5-8, 18 *         *         *         *         *         *         * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is 30 days after November 13, 2009, unless otherwise noted. 2 This date is July 2, 2014, unless otherwise noted.
    8. Section 81.345 is amended in the table “Utah—2006 24-Hour PM2.5 NAAQS (Primary and secondary)” by revising the entries for “Provo, UT” and “Salt Lake City, UT” to read as follows:
    § 81.345 Utah. Utah—2006 24-Hour PM2.5 NAAQS [Primary and secondary] Designated area Designation a Date 1 Type Classification Date 2 Type *         *         *         *         *         *         * Provo, UT: Utah County (part) Nonattainment 6/9/17 Serious. The area of Utah County that lies west of the Wasatch Mountain Range (and this includes the Cities of Provo and Orem) with an eastern boundary for Utah County to be defined as the following Townships: Township 3 South Range 1 East; Township 4 South Range 2 East; Township 5 South Range 3 East; Township 6 South Range 3 East; Township 7 South Range 3 East; Township 8 South Range 3 East; Township 9 South Range 3 East; Township 10 South Range 2 East Salt Lake City, UT: Box Elder County (part) Nonattainment 6/9/17 Serious. The following Townships or portions thereof as noted (including Brigham City): Township 7 North Range 2 West; Township 8 North Range 2 West; Township 9 North Range 2 West; Township 10 North Range 2 West; Township 11 North Range 2 West; Township 12 North Range 2 West; Township 13 North Range 2 West; Township 9 North Range 3 West; Township 10 North Range 3 West; Township 11 North Range 3 West; Township 12 North Range 3 West; Township 13 North Range 3 West; Township 13 North Range 4 West; Township 12 North Range 4 West; Township 11 North Range 4 West; Township 10 North Range 4 West; Township 9 North Range 4 West; Township 13 North Range 5 West; Township 12 North Range 5 West; Township 11 North Range 5 West; Township 10 North Range 5 West; Township 9 North Range 5 West; Township 13 North Range 6 West; Township 12 North Range 6 West; Township 11 North Range 6 West; Township 10 North Range 6 West; Township 9 North Range 6 West; Township 7 North Range 1 West (portion located in Box Elder County); Township 8 North Range 1 West (portion located in Box Elder County); Township 9 North Range 1 West (portion located in Box Elder County) Davis County Nonattainment 6/9/17 Serious. Salt Lake County Nonattainment 6/9/17 Serious. Tooele County (part) Nonattainment 6/9/17 Serious. The following Townships or portions thereof as noted (including Tooele City): Township 1 South Range 3 West; Township 2 South Range 3 West; Township 3 South Range 3 West; Township 3 South Range 4 West; Township 2 South Range 4 West; Township 2 South Range 5 West; Township 3 South Range 5 West; Township 3 South Range 6 West; Township 2 South Range 6 West; Township 1 South Range 6 West; Township 1 South Range 5 West; Township 1 South Range 4 West; Township 1 South Range 7 West; Township 2 South Range 7 West; Township 3 South Range 7 West; all Sections within Township 4 South Range 7 West except for Sections 29, 30, 31 and 32; Township 4 South Range 6 West; Township 4 South Range 5 West; Township 4 South Range 4 West; Township 4 South Range 3 West Weber County (part) Nonattainment 6/9/17 Serious. The area of Weber County that lies west of the Wasatch Mountain Range with an eastern boundary for Weber County to be defined as the following Townships (or portion thereof) extending to the western boundary of Weber County: Township 5 North Range 1 West; Township 6 North Range 1 West; all Sections within Township 7 North Range 1 West located within Weber County except for Sections 1, 2, 3, 4, 11, 12, 13 and 24; Township 7 North Range 2 West (portion located in Weber County) *         *         *         *         *         *         * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is 30 days after November 13, 2009, unless otherwise noted. 2 This date is July 2, 2014, unless otherwise noted.
    [FR Doc. 2017-09391 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 Tolerances and Exemptions for Pesticide Chemical Residues in Food CFR Correction In Title 40 of the Code of Federal Regulations, parts 150 to 189, revised as of July 1, 2016, on page 612, in § 180.495, in the table in paragraph (a), the second entry for “Grape, raisin” is removed. [FR Doc. 2017-09487 Filed 5-9-17; 8:45 am] BILLING CODE 1301-00-D FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 07-294, MD Docket No. 10-234; FCC 17-42] Promoting Diversification of Ownership in the Broadcasting Services AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule; petition for reconsideration.

    SUMMARY:

    In this document, the Commission expands the option to use Special Use FRNs on ownership reports for noncommercial educational broadcast stations (FCC Form 323-E). This action addresses several petitions for reconsideration of a prior Commission decision and properly balances the Commission's need to improve the integrity and usability of its broadcast ownership data with the concerns raised in the petitions for reconsideration.

    DATES:

    Effective May 10, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Clark, Industry Analysis Division, Media Bureau, (202) 418-2330 or [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Order on Reconsideration in MB Docket No. 07-294 and MD Docket No. 10-234; FCC 17-42, was adopted on April 20, 2017, and released on April 21, 2017. The complete text of this document is available electronically via the search function on the FCC's Electronic Document Management System (EDOCS) Web page at https://apps.fcc.gov/edocs_pubilc/. The complete document is available for inspection and copying during normal business hours in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Synopsis

    1. Background. Commercial and noncommercial broadcasters are required to submit ownership reports every two years and on other occasions specified in the Commission's rules. These reports must include information about the individuals and entities that hold attributable interests in the station licensee, including officers and directors. Commercial broadcasters submit ownership reports on FCC Form 323, and noncommercial educational (NCE) broadcasters submit ownership reports on FCC Form 323-E.

    2. In the 323 and 323-E Order (81 FR 19431, Apr. 4, 2016, FCC 16-1, rel. Jan. 20, 2016), the Commission revised Forms 323 and 323-E to address issues with the Commission's data collection process that were identified previously by the United States Government Accountability Office (GAO), by researchers who wish to study the Commission's ownership data, and by the Third Circuit as part of its review of the Commission's Quadrennial Review proceeding. Among other things, the 323 and 323-E Order revised Form 323-E to require that NCE filers provide a unique FCC Registration Number (FRN) generated by the Commission Registration System (CORES) for each attributable interest holder listed on Form 323-E, just as commercial broadcasters must do on Form 323. Importantly, the 323 and 323-E Order also updated Form 323-E to collect information about the race, gender, and ethnicity of NCE attributable interest holders. These revisions addressed issues previously identified by GAO and harmonized Form 323-E with Form 323, which was revised in 2009 to collect such data.

    3. In response to concerns that mandatory use of a traditional CORES FRN on Forms 323 and 323-E would require submission of individuals' full social security numbers (SSNs) to the Commission, the 323 and 323-E Order provided for a Restricted Use FRN (RUFRN) establishing an alternative means for obtaining a unique identifier for individual attributable interest holders that requires submission of an individual's full name, residential address, date of birth, and only the last four digits of his or her SSN. The applicant's name and CORES FRN/RUFRN are available publicly, but the underlying identifying information is stored confidentially within the CORES database. The 323 and 323-E Order allowed filers to report Special Use FRNs (SUFRNs), which do not require submission of personal information, for attributable individuals, but only if the filer first used reasonable and good-faith efforts to obtain RUFRNs or CORES FRNs from such individuals, including informing the individual of the risk of enforcement action for failing to provide an RUFRN or CORES FRN or to permit an RUFRN or CORES FRN to be obtained on his or her behalf.

    4. Following the release of the 323 and 323-E Order, the American Public Media Group (APMG), the NCE Licensees, the Public Broadcasting Parties, and the State University of New York (SUNY) (together, the Petitioners) timely filed petitions for reconsideration (Petitions), Petitions for Reconsideration of Action in Rulemaking Proceeding, 81 FR 31223 (May 18, 2016). The Petitioners request that the Commission reconsider its decision to apply the CORES FRN/RUFRN requirement to Form 323-E.

    5. On January 4, 2017, the Media Bureau, acting on delegated authority, released the 323-E Order (DA 17-5, rel. Jan. 4, 2017), dismissing and denying the Petitions pursuant to section 1.429(l) of the Commission's rules. Subsequently, the Bureau set aside the 323-E Order pursuant to section 1.113 of the Commission's rules, concluding that it was more appropriate for the Petitions to be addressed at the Commission level. The Bureau returned the Petitions to pending status, stating that they would be considered by the Commission. Prior to the Bureau's action setting aside its 323-E Order, the NCE Licensees and the University of Michigan filed applications for review of the 323-E Order. Because the Bureau set aside the underlying order, we dismiss the applications for review as moot.

    6. Discussion. We find that the Petitioners and other NCEs participating in this proceeding have raised legitimate concerns that the CORES FRN/RUFRN requirement, and the prospect of enforcement action for failing to comply with this requirement, may hinder their efforts to recruit volunteers to serve on their licensee boards and pose other unique challenges. Unlike their counterparts in the commercial context and certain not-for-profit entities, NCE governing board members are, in many cases, unpaid volunteers. Because unpaid NCE board members receive no fee or other remuneration for their services, they lack the financial incentive to serve on boards that paid directors or board members have. Indeed, the record indicates that some public broadcasters have difficulty finding qualified, committed individuals to donate their time and attention to station governance.

    7. In the 323 and 323-E Order, the Commission affirmed its commitment to protecting the privacy and security of personally identifiable information that the Commission collects, and we re-affirm that commitment here. Contrary to the Institute for Public Representation (IPR)'s supposition, our action here does not presume that Commission databases are insecure and that individuals who obtain a CORES FRN or RUFRN will expose themselves to identify theft, nor are such concerns the basis for the relief we grant today. However, we recognize that some NCE licensees may face unique circumstances with respect to their ability to recruit and retain qualified individuals to serve in governance positions.

    8. We share the Petitioners' concern that individuals who are reluctant to disclose personal information may then decline to serve as unpaid board members or, to the extent they are able to do so, those already serving as unpaid board members may resign rather than risk a Commission enforcement action for failure to provide the information needed to report a CORES FRN or RUFRN. Further, the Petitioners assert that many licensee board members—particularly those associated with colleges, universities, and state or local public broadcasting entities—are individuals chosen by public election or political appointment, or are ex officio members who serve by virtue of the public office they hold, such as Governor or State Superintendent of Education. The CORES FRN/RUFRN requirement and prospect of enforcement action could pose particular challenges in instances where a public official refuses to provide the information needed to obtain a CORES FRN or RUFRN but is unable to withdraw freely from the governing board.

    9. We find that the 323 and 323-E Order erred in rejecting the valid concerns raised by NCEs regarding the potential impact that the CORES FRN/RUFRN requirement, including the threat of possible enforcement action, could have in the NCE context. In discussing the availability of SUFRNs for both commercial and noncommercial ownership reports, the 323 and 323-E Order went so far as to state that the Commission may take enforcement action against the filer and/or the “recalcitrant individual” in the event an SUFRN is used. As the Petitioners note, there is consensus among NCE commenters in this proceeding that requiring NCE filers to report CORES FRNs or RUFRNs for attributable individuals and inform such individuals about the risk of enforcement action could discourage volunteers from serving on the governing boards of NCE stations and pose unique challenges for board members who are politically elected or appointed. No commenter in this proceeding has disputed these assertions. The Petitioners contend that these assertions are based on the reactions of unpaid board members to the Commission's actions in this proceeding to date.

    10. The 323 and 323-E Order should have given more credence to the concerns raised by NCE broadcasters, particularly given their representations that these concerns were based on their experience with the day-to-day operations of their stations and interactions with volunteers serving on their governing boards. For example, in dismissing these assertions, the 323 and 323-E Order did not adequately consider claims that some noncommercial entities that hold commercial station licenses previously encountered difficulties when attempting to obtain similar identifying information from board members. Moreover, the 323 and 323-E Order did not adequately consider whether, when faced with the prospect of a Commission enforcement action against the individual interest holder, current or prospective board-member volunteers would decline to participate on the board.

    11. As noted above, no party opposed the petitions for reconsideration. Parties filing as UCC et al. submitted an ex parte filing belatedly arguing that concerns about the chilling effect of the FRN requirement are speculative. In effect, the ex parte is an untimely opposition to the petitions for reconsideration, and we reject it for that reason. Alternatively and independently, we reject this claim on the merits for the reasons set forth above.

    12. While use of unique identifiers improves the integrity and usability of the Commission's broadcast ownership data, we believe that the potential chilling effect on participation in NCE station governance, and the potentially deleterious effect that loss of NCE leaders could have on the noncommercial broadcast service to the public, outweigh this benefit in the NCE context. Commenters claim that difficulties retaining or attracting qualified individuals to serve in leadership positions will adversely affect station operations. Therefore, we conclude that the better course is to make reporting of CORES FRNs and RUFRNs optional for individuals who hold an attributable interest in an NCE station. Accordingly, NCE filers may report an SUFRN on Form 323-E for an attributable individual who has not obtained a CORES FRN or RUFRN at the time the filer submits its ownership report, without the need to first use reasonable and good-faith efforts to obtain the information needed to report a CORES FRN or RUFRN, including informing individuals about the threat of enforcement action.

    13. In the 323 and 323-E Order, the Commission noted that, in the limited cases where a non-profit entity holds a commercial license, the Commission will deem the filing of Form 323-E, in accordance with the standards set forth in the Order, compliant with the Commission's biennial filing obligation in those circumstances and the non-profit entity would not be required to file Form 323. Accordingly, we will deem the filing of Form 323-E, in accordance with the standards set forth herein and in the 323 and 323-E Order, compliant with our biennial reporting requirement where a non-profit entity holds a commercial license.

    14. We conclude that our action today will address the concerns raised by the Petitioners and NCE commenters in this proceeding. Unlike registering for a CORES FRN or RUFRN, obtaining an SUFRN does not require submission of any personal information, be it an SSN, date of birth, or residential address. Filers can generate an SUFRN simply by clicking a button within the electronic Form 323-E as the noncommercial ownership report is being prepared. Use of an SUFRN therefore does not involve any of the types of information that the Petitioners and other NCE commenters assert would discourage participation in NCE station governance. By allowing NCE filers to report SUFRNs without first using reasonable and good-faith efforts to obtain the information needed to report a CORES FRN or RUFRN, we will avoid the potential chilling effect that the prospect of enforcement action could have on participation in NCE station governance for unpaid board members who choose not to provide their personal information to the Commission.

    15. We find that our action today properly balances the need to improve the integrity and usability of the Commission's broadcast ownership data with the public interest in avoiding the potential chilling effect that a mandatory reporting requirement could have on participation in NCE station governance. In the 323 and 323-E Order, the Commission concluded that requiring unique identifiers for parties that hold attributable interests in broadcast stations helps ensure that the Commission's ownership data is reliable and usable for studies and analyses. We affirm these conclusions and deny the Petitions to the extent they suggest that we abandon entirely the use of CORES FRNs and RUFRNs in the NCE context. In light of the relief afforded by our action herein expanding the option to use SUFRNs on Form 323-E, there is no justification for removing the option for NCE filers to report a CORES FRN or RUFRN for attributable individuals on Form 323-E.

    16. We expect that allowing NCE filers greater flexibility to report SUFRNs will not delay or significantly limit the value of our data collection. Because expanded use of SUFRNs on Form 323-E will not require significant changes to the revised form, we do not believe that our action today will delay implementation of revised Form 323-E. Moreover, we expect that, due to the nature of our ruling, the use of SUFRNs and the resulting collective impact on our broadcast ownership data will be limited. In this regard, we emphasize that our ruling today applies only to noncommercial broadcasters. Commercial broadcasters remain subject to the CORES FRN and RUFRN requirements set forth in the 323 and 323-E Order. Further, because SUFRNs are available only for individuals, unique FRNs will be reported for entities on Forms 323 and 323-E.

    17. Importantly, as we have previously emphasized, filers that report an SUFRN for an attributable individual must do so consistently. If an SUFRN was reported previously for an individual and the individual does not have a CORES FRN or RUFRN, the filer must use the same SUFRN that was reported previously for that individual. Furthermore, if an individual is reported on multiple reports, the filer must ensure that the same SUFRN is reported consistently for that individual, assuming that the individual does not have a CORES FRN or RUFRN.

    18. We also note that the Commission's prior decision to collect data on the race, ethnicity, and gender of individuals holding attributable interests in NCE licensees remains undisturbed, and this data will be available to the Commission and researchers for purposes of evaluating ownership diversity issues. To the extent IPR and UCC et al. state that the Commission will not collect race, gender, and ethnicity information from NCEs as a result of our action today, these belated pleadings are wrong. Although we will not require NCE licensees to report unique identifiers for all individuals holding attributable interests, the data on race, ethnicity, and gender will not be “useless,” as we will still be able to determine which licensees, stations, and markets have minorities and women in NCE leadership positions.

    19. In addition, although we are expanding the option to use SUFRNs on Form 323-E, in many cases an NCE filer will continue to nonetheless report a CORES FRN or RUFRN for an attributable individual. For instance, some individuals with attributable interests in NCE stations may not object to obtaining a CORES FRN or RUFRN. Also, if an individual with an attributable interest in an NCE station has already obtained a CORES FRN or RUFRN for another reason (for example, because the individual also appears on one or more commercial Form 323 filings), filers must report that FRN for the individual on Forms 323 and 323-E. In such circumstances, use of the CORES FRN or RUFRN could not be expected to have a chilling effect on the individual's participation in NCE station governance. This further supports our conclusion that expanded use of SUFRNs on Form 323-E will have a limited collective impact on our data collection.

    20. Because we are relieving NCE licensees of the obligation to report a CORES FRN or RUFRN for individuals holding attributable interests, we need not address NCE Licensees' and Public Broadcasting Petitioners' claim that the statutory authority the Commission relied on in adopting the requirement does not apply to NCE stations. These arguments are moot. Thus, we dismiss these portions of the NCE Licensees Petition and Public Broadcasting Parties Petition. SUNY's argument that the Privacy Act bars mandatory collection of SSNs from individuals holding attributable interests in NCE licensees is moot for the same reason, and we dismiss this aspect of the SUNY Petition.

    21. In opposing the CORES FRN/RUFRN requirement, some commenters to this proceeding suggest that certain individuals serving on NCE boards may be uninvolved with the licensing, operation, or ultimate disposition of the noncommercial broadcast license and that it is not necessary to include information about these individuals on broadcast ownership reports. We take this opportunity to reiterate that, as discussed in the 323 and 323-E Order, our rules already contemplate that circumstance and afford appropriate relief. Our attribution standards, including the standards applicable to attribution exemptions for officers and directors, apply to both commercial and NCE stations. Specifically, an officer or director can be exempted from attribution in the licensee if his or her duties are wholly unrelated to the operation of the broadcast station(s) at issue. Exempted officers and directors would not be reported as attributable interest holders on the Form 323-E and thus would not need to obtain a CORES FRN or RUFRN for Form 323 or Form 323-E reporting purposes. Appropriate use of this existing exemption would further reduce the burden on NCE licensees and potentially avoid the concern of a chilling effect raised by the Petitioners. We therefore encourage NCE filers to avail themselves of this exemption in order to avoid reporting potential interest holders who are uninvolved with the operation of the station(s) and whose interests therefore need not be reported.

    22. Although some petitioners argue that differences between NCEs and commercial licensees make the collection of NCE data unnecessary, the Commission previously rejected this argument, and, as we have granted reconsideration regarding the specific aspect of our data collection that petitioners challenge, we need not revisit the Commission's response to this argument. We note that even though the Commission's multiple ownership rules do not apply to NCE stations, collecting race, gender, and ethnicity information from NCEs will enable the Commission, as well as GAO and other outside researchers, to more fully understand and analyze the broadcasting industry, and thereby support the Commission's efforts to promote diversity of ownership in broadcasting. In an ex parte filed well after the close of the pleading cycle, public broadcasting representatives filing as “Public Broadcasters” ask the Commission to consider returning to the status quo ante by reversing its prior decision to adopt new rules for noncommercial stations in this proceeding. To the extent this request applies to other improvements adopted in the 323 and 323-E Order, including the collection of race, gender, and ethnicity information from NCE Licensees, Public Broadcasters' request is untimely and is procedurally barred.

    23. Procedural Matters. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared a Supplemental Final Regulatory Flexibility Analysis (FRFA) relating to this Report and Order, which is summarized below.

    24. Paperwork Reduction Act Analysis. This document contains a non-substantive and non-material modification of information collection requirements that were previously reviewed and approved by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    25. In this present document, we have assessed the effects of requiring NCE filers to report a CORES FRN or RUFRN for each attributable interest holder on ownership reports filed with the Commission, and we have expanded the option for such filers to report SUFRNs for attributable individuals by eliminating the requirement that NCE filers first use reasonable and good-faith efforts to obtain the personal information needed to report a CORES FRN or RUFRN before using an SUFRN. We find that this action properly balances the need to improve the integrity and usability of the Commission's broadcast ownership data with the potential chilling effects that a mandatory reporting requirement could have on participation in NCE station governance, and that our action will have the effect of reducing the burden on NCE filers, including those with fewer than 25 employees.

    26. Supplemental Final Regulatory Flexibility Analysis. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted in this Order on Reconsideration. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). The FRFA accompanying the 323 and 323-E Order described and estimated the number of small entities that would be affected by the revisions to FCC Forms 323 and 323-E. The actions taken in this Order on Reconsideration apply to the same entities affected by the revisions to Form 323-E that the Commission adopted in the 323 and 323-E Order.

    27. Television Broadcasting. This Economic Census category comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of less than $25,000,000, 25 had annual receipts ranging from $25,000,000 to $49,999,999, and 70 had annual receipts of $50,000,000 or more. Based on this data we therefore estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

    28. The Commission has estimated the number of licensed commercial television stations to be 1,383. Of this total, 1,275 stations (or about 92 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on March 9, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed NCE television stations to be 394. The Commission, however, does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

    29. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive.

    30. Radio Stations. This Economic Census category comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard for this category as firms having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 2,849 firms in this category operated in that year. Of that number, 2,806 had annual receipts of less than $25,000,000, 17 had annual receipts ranging from $25,000,000 to $49,999,999, and 26 had annual receipts of $50,000,000 or more. Based on this data we therefore estimate that the majority of commercial radio stations are small entities under the applicable SBA size standard.

    31. The Commission has estimated the number of licensed commercial radio stations to be 11,420. Of this total, 11,506 stations (or about 99.9 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on March 9, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed NCE radio stations to be 4,112. The Commission, however, does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

    32. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We further note that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis; thus, our estimate of small businesses may therefore be over-inclusive.

    33. Class A TV and LPTV Stations. The same SBA definition that applies to television broadcast licensees would apply to Class A TV stations and other low power television (LPTV) stations. The SBA defines a television broadcast station as a small business if such station has no more than $38.5 million in annual receipts. As of March 31, 2017, there are approximately 417 licensed Class A stations and 1,965 licensed LPTV stations. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. We note, however, that under the SBA's definition, revenue of affiliates that are not LPTV stations should be aggregated with the LPTV station revenues in determining whether a concern is small. Our estimate may thus overstate the number of small entities since the revenue figure on which it is based does not include or aggregate revenues from non-LPTV affiliated companies.

    34. The Order on Reconsideration provides NCE filers with greater flexibility to report SUFRNs than previously allowed by the 323 and 323-E Order. It does not adopt additional reporting, recordkeeping, other compliance requirements.

    35. The Order on Reconsideration provides relief to NCE filers by allowing them wider latitude to report SUFRNs—which do not require disclosure of an SSN, date of birth, or other personal information—for individual attributable interest holders reported on Form 323-E. Accordingly, NCE filers may report an SUFRN on Form 323-E for an attributable individual who has not obtained a CORES FRN or RUFRN at the time the filer submits its ownership report, without the need to first use reasonable and good-faith efforts to obtain the information needed to report a CORES FRN or RUFRN. The Commission concludes that allowing NCEs greater flexibility to report an SUFRN for an attributable individual, in lieu of a CORES FRN or RUFRN, will address the concerns that have been raised regarding the potential impact of the CORES FRN/RUFRN requirement on NCE stations, including small entities. The Chief Counsel for Advocacy of the SBA did not file any comments in response to the proposed rules in this proceeding.

    36. The Commission will send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    37. Ordering Clauses. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 2(a), 4(i), 257, 303(r), 307, 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303(r), 307, 309, and 310, this Order on Reconsideration IS ADOPTED.

    38. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, that the petitions for reconsideration filed by the American Public Media Group, the NCE Licensees, the Public Broadcasting Parties, and Lisa S. Campo on behalf of the State University of New York, are granted in part, dismissed to the extent discussed in footnote 42, and otherwise are denied, to the extent stated herein.

    39. It is further ordered that the applications for review filed by the NCE Licensees and the University of Michigan are dismissed as moot.

    40. It is further ordered that, pursuant to section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), and section 1.427(b) of the Commission's rules, 47 CFR 1.427(b), this Order on Reconsideration shall be effective May 10, 2017, except those provisions that contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act will become effective after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2017-09461 Filed 5-9-17; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 150909839-7369-02] RIN 0648-XE184 Endangered and Threatened Wildlife and Plants; Final Rule to List 6 Foreign Species of Elasmobranchs Under the Endangered Species Act AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    We, NMFS, issue a final rule to list six foreign marine elasmobranch species under the Endangered Species Act (ESA). These six species are the daggernose shark (Isogomphodon oxyrhynchus), Brazilian guitarfish (Rhinobatos horkelii), striped smoothhound shark (Mustelus fasciatus), narrownose smoothhound shark (Mustelus schmitti), spiny angelshark (Squatina guggenheim), and Argentine angelshark (Squatina argentina). We are publishing this final rule to implement our final determination to list the daggernose shark, Brazilian guitarfish, striped smoothhound shark, spiny angelshark and Argentine angelshark as endangered species under the ESA, and the narrownose smoothhound shark as a threatened species under the ESA. We have reviewed the status of these six species, including efforts being made to protect these species, and considered public comments submitted on the proposed rule as well as new information received since publication of the proposed rule. We have made our final determinations based on the best scientific and commercial data available. We will not designate critical habitat for any of these species because the geographical areas occupied by these species are entirely outside U.S. jurisdiction, and we have not identified any unoccupied areas within U.S. jurisdiction that are essential to the conservation of any of these species.

    DATES:

    This final rule is effective June 9, 2017.

    ADDRESSES:

    Chief, Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Maggie Miller, NMFS, Office of Protected Resources (OPR), (301) 427-8403. Copies of the petition, status review reports, Federal Register notices, and the list of references are available on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species or subpopulations as threatened or endangered under the ESA. This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 24 of the species and 3 of the subpopulations and announced the initiation of status reviews for each of the 24 species and 3 subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On December 7, 2015, we published a proposed rule to list the daggernose shark, Brazilian guitarfish, striped smoothhound shark, and Argentine angelshark as endangered species under the ESA, and the narrownose smoothhound shark and spiny angelshark as threatened species under the ESA (80 FR 76067). We requested public comment on information in the status reviews and proposed rule, and the comment period was open through February 5, 2016. This final rule provides a discussion of the information we received during and after the public comment period and our final determination on the petition to list these six foreign marine elasmobranchs under the ESA. The status of the findings and relevant Federal Register notices for the other 18 species and 3 subpopulations can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

    Listing Species Under the Endangered Species Act

    We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

    Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

    When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.

    Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any State or foreign nation to protect the species.

    In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we assess the extinction risk of the species. In our extinction risk assessment, we considered the best available information to evaluate the level of risk faced by each of the six species. For each extinction risk analysis, we evaluated the species' demographic risks, such as low abundance and productivity, and threats to the species including those related to the factors specified by the ESA section 4(a)(1)(A)-(E), and then synthesized this information to estimate the extinction risk of each species.

    Because species-specific information (such as current abundance) is sparse, qualitative “reference levels” of risk were used to describe extinction risk. The definitions of the qualitative “reference levels” of extinction risk—“Low Risk,” “Moderate Risk,” and “High Risk”—were as described here. A species is at “Low Risk” of extinction if it exhibits a trajectory indicating that it is unlikely to be at a moderate level of extinction risk in the foreseeable future (see description of “Moderate Risk” below). A species may be at low risk of extinction due to its present demographics (i.e., stable or increasing trends in abundance/population growth, spatial structure and connectivity, and/or diversity) with projected threats likely to have insignificant impacts on these demographic trends. “Moderate Risk”—a species is at moderate risk of extinction if it exhibits a trajectory indicating that it will more likely than not be at a high level of extinction risk in the foreseeable future (see description of “High Risk” below). A species may be at moderate risk of extinction due to its present demographics (i.e., declining trends in abundance/population growth, spatial structure and connectivity, and/or diversity and resilience) and/or projected threats and its likely response to those threats. “High Risk”—a species is at high risk of extinction when it is at or near a level of abundance, spatial structure and connectivity, and/or diversity that place its persistence in question. The demographics of the species may be strongly influenced by stochastic or depensatory processes. Similarly, a species may be at high risk of extinction if it faces clear and present threats (e.g., confinement to a small geographic area; imminent destruction, modification, or curtailment of its habitat; or disease epidemic) that are likely to create such imminent demographic risks.

    After completion of the extinction risk analysis, we then assess efforts being made to protect the species to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species. Finally, taking into account the species' extinction risk, threats, and any protective efforts identified from the above assessment, we determine if the species meets the definition of “endangered species” or “threatened species.”

    Summary of Comments

    In response to our request for public comments on the proposed rule, we received information and/or comments from three parties. One commenter agreed with the listing and provided no new or substantive data or information relevant to the listing of these six species. We also directly solicited comments from the foreign ambassadors of countries where the six elasmobranch species occur and received a response from the Embassy of the Argentine Republic. Summaries of the substantive comments received from both the public comment period and the Embassy of the Argentine Republic, and our responses, are provided below by topic and species.

    Comments on ESA Section 4(a)(1) Factors Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range Daggernose Shark

    Comment 1: One commenter noted that we should look more closely at the threat of habitat loss for the daggernose shark, and, in particular, increasing threats to mangrove habitat as a result of rising sea levels due to climate change, increasing human populations in coastal areas, and increasing mariculture activities near mangroves. The commenter suggested that we consider the extent to which these threats may harm the species, both now and in the foreseeable future, and the extent to which this threat is, or may become, operative in portions of the species' range, even if this threat has been neutralized to some degree in other parts of the species' range.

    Response: As noted in the proposed rule (80 FR 76068; December 7, 2015), we considered the information in the status review report (Casselberry and Carlson 2015a), information submitted by the public, as well as information we compiled separately to assess the extinction risk of the daggernose shark. While the status review presented data on mangrove forest declines, we did not find evidence that this was a significant threat to the species. As noted in the status review, daggernose sharks are found in shallow waters along mangrove-lined coasts, but their reliance specifically on the presence of mangroves within these areas is unknown. Rather, the status review notes that daggernose sharks are most abundant in estuarine and river mouth areas, preferring low lying and indented coastlines, and are strongly associated with rocky or muddy bottoms and highly turbid waters. There is no indication that mangroves are an integral feature of the species' habitat or that the species has an obligate relationship with mangroves. As such, we do not find that available information indicates that the decline in mangrove forests in portions of the species' range is a threat that significantly contributes to the species' risk of extinction.

    Comment 2: One commenter stated that it is likely that there has been a large range contraction for some of the proposed shark species. The commenter noted that, based on Barreto et al. (2015) (which has now been published as Barreto et al. 2016), several shark species, including the daggernose shark, may be close to extinction in Brazilian waters. The commenter also cited Willems et al. (2015) as evidence that daggernose sharks may have been extirpated from the waters of Guyana as well, resulting in a significant combined range contraction. The commenter noted that this may be indicative of additional extirpations as Guyana does not represent the northernmost extreme of the species' range. Citing Willems et al. (2015), the commenter stated that daggernose sharks were caught off Guyana in the 1960s but were not observed in a 2015 study, indicating that they may no longer be present there, or that they have at least been reduced to the point of rarity. The commenter asserted that such range contractions are concerning and may indicate that additional range contractions have happened in the other range countries of the daggernose shark where information is lacking.

    Response: Neither of the papers cited by the commenter (Barreto et al. 2015 or Willems et al. 2015) provided any new information on the distribution or extinction risk of the daggernose shark. Barreto et al. (2015) referenced the Instituto Chico Mendes de Conservação da Biodiversidade (ICMBio) assessment of daggernose shark (ICMBio 2014) as support for its statement that the species may be close to extirpation in Brazil. This assessment did not provide any information regarding evidence of a range contraction for the species, nor did it provide new information that was not already reviewed, considered, or cited in the proposed rule. The other paper, Willems et al. (2015), describes a study where researchers conducted monthly trawl sampling of 15 locations off the coast of Suriname from February 2012—April 2013 to characterize the demersal fish fauna on the inner continental shelf. The authors noted that daggernose sharks were not observed in the samples but had previously been caught off Guyana in the 1960s, and hypothesized that fishing activity may have led to local extirpations, presumably off Suriname (where the study took place). There was no data or information in the Willems et al. (2015) study to indicate that daggernose sharks are no longer present off Guyana.

    We acknowledge that overutilization is the primary threat to the daggernose shark, contributing to its present high risk of extinction; however, we do not find that the information provided by the commenter indicates that the species is also at risk of a significant range contraction. Overall, there is a severe lack of information on the species' historical and current distribution, with only scarce records of the species throughout Suriname, Guyana, and Trinidad and Tobago. However, the species is mobile (as demonstrated by its seasonal migrations), and while it is uncertain whether local populations have been fished to extirpation, there is no information to indicate that the species presently suffers from a curtailment of its range.

    Brazilian Guitarfish

    Comment 3: One commenter disagreed with our conclusion that habitat destruction or modification is not an operative threat to the Brazilian guitarfish, and suggested we consider the impacts of trawling activities on Brazilian guitarfish habitat. The commenter pointed out a peer reviewer comment on the status review (Casselberry and Carlson 2015b) that said “[i]n this document is cited that there is no specific information available on how trawling has affected the Brazilian guitarfish's habitat. However, knowing that they feed mainly on benthic community, we can assume the trawling may affect the food chain in which R. horkelii is inserted.” The commenter asserted that the peer reviewer made an important common sense point that applies to all species that rely on benthic habitats that are damaged by trawling, and that this type of damage to the species' habitat will inevitably harm the species. The commenter suggested we consider this damage as an additional source of harm to the species, despite the fact that it may be difficult to quantify. The commenter then noted that this benthic habitat threats discussion applies to all species that are reliant on benthic habitats that are, or may be, impacted by trawlers, including the striped smoothhound shark, narrownose smoothhound shark, Argentine angelshark and spiny angelshark.

    Response: While trawling activities affect the benthic community and may potentially affect the food chain for R. horkelii and the other elasmobranch benthic feeders, we have no information to indicate that this is presently or historically the case, or contributing to the extinction risk of any of the species. Additionally, we note that broad or general information, or the identification of factors that could negatively impact a species, do not indicate that listing is necessarily warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species is responding to or reasonably likely to respond to that factor in a negative fashion; then we assess the potential significance of that negative response. While we reviewed and considered the information from the status review and information collected prior to the proposed rule on habitat destruction or modification as a potential threat, we found no information to indicate that this factor is contributing significantly to the species' risk of extinction. Additionally, neither the information provided by the commenter, nor information in our files, indicates that trawling has altered the benthic habitat in such a way that it is leading to declines in food resources for the Brazilian guitarfish or any of the other species considered in this final rule. As such, our conclusion that the information does not indicate that habitat destruction or modification is an operative threat on these species remains the same.

    Narrownose Smoothhound Shark

    Comment 4: One commenter noted that narrownose smoothhounds have exhibited elevated levels of mercury and cadmium in their tissue and cited to the status review for the species (Casselberry and Carlson 2015c). The commenter asserted that these trace metals bioaccumulate up the food chain from pollutant sources in the species' habitat and can cause a variety of harm to higher trophic level species, like the narrownose smoothhound, and provided Gelsleichter and Walker (2010) as a reference. The commenter concluded that the presence of these pollutants in the narrownose smoothhound's habitat, and their resultant bioaccumulation and biomagnification in the species, is an additional habitat-related threat to the species' continued existence.

    Response: As the status review (Casselberry and Carlson 2015c) notes, the study that found elevated levels of mercury and cadmium in narrownose smoothhound shark tissues in Argentina (Marcovecchi et al. 1991) did not provide any information on the impact of these metals on the survival of the individual sharks. Additionally, we found no information on the impact of toxin and metal bioaccumulation specifically in narrownose smoothhound populations. In fact, there is no information on the lethal concentration limits of toxins or metals in narrownose smoothhound sharks, or evidence to suggest that current concentrations of environmental pollutants are causing detrimental physiological effects to the point where the species may be at an increased risk of extinction. As such, at this time, the best available information does not indicate that the present bioaccumulation rates and concentrations of environmental pollutants in the tissues of narrownose smoothhound sharks are threats significantly contributing to the species' risk of extinction throughout its range, now or in the foreseeable future.

    Overutilization for Commercial, Recreational, Scientific, or Educational Purposes General Comments Applicable to Multiple Species

    Comment 5: One commenter provided general information on the threat of overfishing of sharks and rays worldwide. Citing an analysis by Davidson et al. (2015), the commenter noted that global landings of sharks and rays have declined by approximately 20 percent, which the authors attribute to population declines rather than fishery management measures. The commenter also specifically highlighted the increase in landings by Argentina (5-10 percent) and Brazil (1-5 percent) from 2003 to 2011, and the failure of these countries to meet all of the sustainable fishing objectives set out in their respective Food and Agriculture Organization of the United Nations (FAO) National Plans of Action for the conservation of sharks (hereafter referred to as FAO NPOA-sharks) as evidence that current regulatory mechanisms in these range states are inadequate and that overfishing will continue to cause the proposed species to decline further.

    Response: We reviewed the Davidson et al. (2015) paper and found that while it gives a broad overview of the trend in global shark landings, and suggests that overfishing, rather than improved management, explains the global declines observed in shark and ray landings since 2003, it does not provide any new or substantive species-specific information. In assessing threats, we look for information indicating that not only is a particular species exposed to a factor, but also that the species is responding to or reasonably likely to respond to that factor in a negative fashion in order to assess the potential significance of that factor to a particular species. We previously considered the FAO landings data (upon which the Davidson et al. (2015) paper is based) and examined the management and adequacy of existing regulatory measure as it relates to each of the proposed species' extinction risks (not just sharks and rays, in general), with this discussion provided in our proposed rule. Additionally, based on new information received since the publication of the proposed rule, we have revised this discussion specifically for the narrownose smoothhound and spiny angelshark, which can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Daggernose Shark

    Comment 6: One commenter, referencing Barreto et al. (2015), stated that monitoring of fishing in countries, including Brazil, has been inconsistent. The commenter provides the following quote from Barreto et al. (2015): “Nowadays, there are 750 longliners with permission to catch specifically P. glauca, I. oxyrhinchus and C. falciformis in Brazilian waters. For comparison, in our database, over more than 30 years, about 200 vessels reported data.” The commenter asserts that this information indicates a large increase over historical numbers in vessels with permission to catch daggernose sharks.

    Response: The commenter provides a footnote to their statement that the reference to I. oxyrhinchus in the Barreto et al. (2015) quote could be referring to the daggernose shark (Isogomphodon oxyrhynchus) or the shortfin mako shark (Isurus oxyrinchus), as the spelling used was not consistent with either species' Latin name. However, we disagree with the commenter and note that given Barreto et al.'s (2015) discussion and use of I. oxyrhinchus throughout their paper as referring to the shortfin mako shark, the quote is clearly referencing the number of longliners that are permitted to catch blue sharks, shortfin mako sharks, and silky sharks in Brazilian waters.

    In the footnote, the commenter additionally provides a Web site link to indicate that some Brazilian fishing licenses specifically allow for catch of daggernose sharks (http://sinpesq.mpa.gov.br/rgp-publico/web/index.php/frota/detalhe/num_frota/1.02.001); however, we were unable to access this Web page to verify the information. We note that the species is listed in Annex I of Brazil's endangered species list (“Lista de Espécies da Fauna Brasileira Ameaçadas de Extinção”), which prohibits the capture of the species except for scientific purposes, and, therefore, fishing licenses allowing the capture of the species for commercial or recreational purposes is unlikely. Additionally, as discussed in the proposed rule, the species is most susceptible to being caught in the artisanal gillnet fisheries, given their depth and distribution. As such, the impact of an overall increase in Brazilian longliners does not change our conclusion regarding the extinction risk of the species.

    Striped Smoothhound Shark

    Comment 7: Citing the status review for the striped smoothhound shark (Casselberry and Carlson 2015d), one commenter noted that striped smoothhound shark biomass is concentrated in a very small area of coastline in southern Rio Grande do Sul (indicating that this is an important nursery area for the species). The commenter asserted that the concentration of the species in this highly limited area of abundance appears to be due to the population declines that the species has already experienced and referenced the decline in neonate production between 1981 and 2005 (Casselberry and Carlson 2015d). The commenter concluded that this makes the species vulnerable to population-level effects from impacts occurring in a relatively limited area. The commenter suggested that we consider the extent to which this highly concentrated area of abundance elevates the species' extinction risk.

    Response: The commenter provided no new information. We considered the above information, including the decline in neonate production, which is discussed in detail in the Historical and Current Distribution and Population Abundance, Demographic Risk Analysis and Risk of Extinction sections of the proposed rule, with the findings contributing to our assessment of the species as endangered.

    Narrownose Smoothhound Shark

    Comment 8: One commenter disagreed with our characterization of some information related to overutilization of the narrownose smoothhound shark in Uruguay. The commenter asserted that an abundance decline of the species is the only plausible explanation for the large decline in narrownose smoothhound catch in Uruguay (over 85 percent from 1999-2013), particularly since there has not been a decrease in fishing effort. The commenter asserted: “Where a market for the species still exists, as it does in neighboring Argentina, fishermen will not simply ignore the species” and that “Though effort information does not exist, the cause of this decline in catch is clear—it is caused by a corresponding, and likely very large, decline in narrownose smoothhound population numbers in these waters.” The commenter emphasized that speculation on an alternative explanation for the decrease in landings of narrownose smoothhound shark in Uruguay is unfounded.

    Response: With the exception of the Barreto et al. (2015) study, the commenter does not provide any new information to consider, besides their opinion, in regards to the cause of the decline in landings of the species. Based on a review of the reference provided in the comment (i.e., Barreto et al. 2015), we do not agree with the commenter that the information provided implies any trend in fishing effort specific to narrownose smoothhounds in Uruguay. We also note that updated data for narrownose smoothhound reported to the FAO showed an increase in Uruguayan reported landings from 194 t in 2013 to 663 t in 2014. However, since publication of the proposed rule, we have received new data showing trends in landings, catch-per-unit-effort (CPUE), and biomass of the narrownose smoothhound in the Argentine-Uruguayan Common Fishing Zone (AUCFZ), and have revised the discussion concerning the threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Comment 9: One commenter provided new information regarding the post-release survivorship of narrownose smoothhound sharks based on a study that evaluated the survivorship of elasmobranchs captured by bottom trawlers (Chiaramonte et al. undated). The commenter stated that in addition to retention of targeted and bycaught individuals, this new study provides evidence that narrownose smoothhounds respond poorly to capture and likely face very high post-release mortality when caught by bottom trawl gear.

    Response: Based on the information in Chiaramonte et al. (undated), we agree with the commenter that M. schmitti likely has poor survivorship after being caught by trawl gear. While the post-release survival experiment was based on only two individuals (both dead after 15-30 minutes in a holding tank on the trawl vessel), 55 percent of the 52 narrownose smoothhounds captured were described as being “not in good condition” (i.e., either immobile or dead). However, we note that only juveniles were assessed in the study and, therefore, the survivorship of larger adults in trawl gear remains unknown. In terms of the impact on extinction risk, we find that this new information does not change our assessment of the species being at a moderate risk of extinction. We note that the species is threatened with overutilization by commercial and artisanal fisheries, and because it is commercially sought after throughout its range, we consider the likelihood of the species being discarded (alive or dead) to be very low.

    Comment 10: One commenter referenced a study (Fields et al. 2015) that assessed species composition from a collection of 72 processed shark fins and found that one fin, from a United States shark fin soup sample, belonged to the narrownose smoothhound shark. The commenter concluded that the findings indicated that not only is the species exploited for the shark fin trade, but that it is also the subject of international trade, at least some of which implicates the United States specifically.

    Response: We reviewed the Fields et al. (2015) study, and while one shark fin was genetically identified as M. schmitti, we found no other information to suggest that the species is actively being targeted for the international shark fin trade. Additionally, the authors of the study note that the samples were “not collected in a systematic or random manner and thus do not provide any information on the overall species composition of the trade” in the sampling regions. Although fins of M. schmitti may enter international trade, the available data do not indicate that this species is a large component of the shark fin trade or that this utilization of the shark is significantly contributing to the species' extinction risk.

    Comment 11: One commenter cited to the FAO capture production statistics referenced in Davidson et al. (2015) as evidence of the global exploitation and population decline of the narrownose smoothhound, and noted that the species is still heavily fished in Uruguay and along the Uruguay/Argentina border. Using Jaureguizar et al. (2014) and Ligrone et al. (2014) as support, the commenter asserted that the species is still targeted and experiencing heavy fishing pressure, particularly during its reproductive period, leading the commenter to conclude that the narrownose smoothhound shark fishery is highly unsustainable.

    Response: As mentioned in the proposed rule, we also considered the landings data reported to the FAO for M. schmitti, noting that landings were on a declining trend since the mid-2000s, down to 194 t in 2013; however, due to the absence of effort information, we noted that the cause of the decline was not entirely clear. For example, from 2002 to 2010, Mustelus spp. catch limits were imposed in the AUCFZ, and starting in 2011, catch limits specifically for narrownose smoothhound were established (which could affect landings data). The most recent FAO data for 2014 actually show over a 3-fold increase in landings for Uruguay from 2013, up to 663 t.

    We reviewed the Jaureguizar et al. (2014) study and found that while it provides information on the composition of small-scale gillnet fishery catch from two neighboring fishing communities in Argentina, and notes the likely landing of M. schmitti during its spring migration for reproduction purposes, the study's main objective was to examine seasonal fishing effort for different species over the course of a single year. We also reviewed the Ligrone et al. (2014) paper, which surveyed 21 artisanal fishermen operating from La Paloma and Cabo Polonio ports and found that Mustelus spp. represented 40 percent of the catch. The sharks were caught during shark fishing, which occurred mostly between April and October around the ports of La Paloma and 12 nautical miles (nmi) from Cabo Polonio port. While these studies confirm that fishing for narrownose smoothhound sharks occurs, the information from these studies does not provide an indication of the present status of the shark, which could indicate the sustainability of these artisanal fishing operations.

    However, we agree with the commenter that overutilization of narrownose smoothhound is a threat to the species, and we stated this in the proposed rule: “The primary threat to the narrownose smoothhound is overutilization in commercial and artisanal fisheries as the species is intensely fished throughout its entire range, including within its nursery grounds.” We considered the available fisheries data as well as the trends in the species' demographic factors to make our extinction risk determination and do not find that the information provided by the commenter changes our conclusion. We note that since publication of the proposed rule, we have also received new data showing trends in landings, CPUE, and biomass of the narrownose smoothhound in the AUCFZ, and have revised the discussion concerning the threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Comment 12: One commenter provided another possible explanation for the decline in M. schmitti catches in the AUCFZ since 2010 (besides reduced fishing pressure and adherence to catch regulations), suggesting that the total allowable catch quotas were set too high and, therefore, do not actually restrict catch in any meaningful way. The commenter stated that inadequate quotas, compounded by pervasive inadequate enforcement, render the regulatory measures wholly inadequate to conserve the species.

    Response: The commenters provided no new information that was not already considered in the proposed rule. However, since publication of the proposed rule, we have received new data showing trends in landings, CPUE, and biomass of the narrownose smoothhound in the AUCFZ, and have revised the discussion concerning the threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Spiny Angelshark

    Comment 13: One commenter suggested that we should consider whether the survey data for S. guggenheim is recent enough that it still accurately accounts for the species' abundance at present, and whether impacts suffered since the conclusion of the survey are taken into account. The commenter cited Jaureguizar et al. (2014) to show that the highest CPUE of S. guggenheim occurs during its reproductive period and claimed that this unsustainable practice will increase overutilization pressure on the species and cause very fast declines, even where the species may be relatively numerous.

    Response: The commenter did not provide any recent survey data for S. guggenheim for us to consider. We reviewed the Jaureguizar et al. (2014) study and while it provides information on the composition of small-scale gillnet fishery catch from two neighboring fishing communities at the southern boundary of the Río de la Plata, we do not find that it makes any generalizations as to the CPUE of the species throughout its range. Rather, it notes that in relation to the other seasonal catch in these fishing communities, S. guggenheim has the highest CPUE during the autumn, when the species moves into nearshore waters for reproductive purposes.

    We also note that since publication of the proposed rule, we have received new data showing trends in landings, CPUE, and biomass of the spiny angelshark within the AUCFZ that leads us to conclude that the species is at a higher risk of extinction than what was stated in the proposed rule. We have subsequently revised the discussion concerning threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Comment 14: One commenter, citing Ligrone et al. (2014), noted that the Uruguayan artisanal fleet, which in 2007 recorded a total of 726 vessels for Río de la Plata Estuary and the Atlantic coast, operates on a multispecies basis, with angelsharks (Squatina spp.) being one of the main species caught, representing 11 percent of the catch. Additionally, the commenter, quoting Ligrone et al. (2014), stated that the impacts of these Uruguayan artisanal fisheries on the species may be exacerbated as they “share their main targeted species sequentially, and often spatially” with the industrial fisheries.

    Response: We reviewed the Ligrone et al. (2014) paper and note that the authors are not describing the practices of the 726 vessels mentioned above, but rather are specifically describing the artisanal fisheries operating off the Uruguayan Atlantic coast. According to the authors, 82 artisanal fishing vessels are registered and fish on a multi-species basis, operating between the coast and 15 nmi offshore. While Squatina spp. represented 11 percent of the catch, the authors do not provide actual catch numbers or trends in effort over multiple years that may provide additional information as to the status of the species. In the proposed rule, we considered the impact of both industrial and artisanal fisheries on spiny angelsharks, noting that these fisheries primarily operate in depths that “cover the entire depth range of the spiny angelshark” (80 FR 76095) and, therefore, fish all life stages of the species (80 FR 76099).

    However, as noted previously, since publication of the proposed rule, we have received new data showing trends in landings, CPUE, and biomass of the spiny angelshark within the AUCFZ that leads us to conclude that the species is at a higher risk of extinction than what was stated in the proposed rule. We have subsequently revised the discussion concerning threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Disease or Predation Narrownose Smoothhound Shark

    Comment 15: One commenter disagreed with our conclusion that neither disease nor predation were operative threats on the species, and argued that this determination is inconsistent with the information presented in the status review. The commenter pointed to information in the status review (Casselberry and Carlson 2015c) describing a survey off the coast of Brazil that found four individuals (4.21 percent of the surveyed population) with Hifalomicose (a fungal infection that causes muscle necrosis with hyphal penetration into the cartilage). The commenter quoted from the status review: “All infected individuals displayed necrosis on their snout and an additional infection from the yeast, Fusarium solani. The ulcers from the necrosis turn greenish and result in major bleeding, which leads to death. This infection can cause widespread infestations because the fungus is easily transmitted and has a fast life cycle.” The commenter argued that this information indicates disease as a fairly serious threat to the species, and urged us to assess this threat when making our final listing determination for the species.

    Response: We acknowledge that the information in the status review confirms some incidence of fungal infection in the narrownose smoothhound; however, the information in the status review is based on a single study with data that is over 20 years old. Additionally, the commenter did not provide any new information regarding how fungal infections are having ongoing negative population-level effects on the species. Therefore, without any new information provided by the commenter, we maintain our previous conclusion in the proposed rule that disease is not likely a significant contributing factor to the species' extinction risk.

    Comment 16: One commenter disagreed with our determination that predation is not an operative threat to the narrownose smoothhound, and argued that our determination is inconsistent with information presented in the status review for the species. The commenter pointed to the status review (Casselberry and Carlson 2015c), which determined that narrownose smoothhounds are an important prey item for large sharks, including the broadnose sevengill shark (Notorynchus cepedianus), the copper shark (Carcharhinus brachyurus), and the sand tiger shark (Carcharias taurus). The commenter contends that although predation by a native predator would typically not cause the extinction of a prey species under natural conditions, M. schmitti populations are already depleted and are subject to additional threats. As a result, any additional mortality will exacerbate the threats that they are already subjected to. The commenter concluded that predation by other shark species is causing cumulative and synergistic impacts to narrownose smoothhounds that are exacerbating the other threats that they are facing.

    Response: We acknowledge that the information from the status review confirms that narrownose smoothhounds are a prey item of various shark species, and we considered this information in the proposed rule; however, the commenter provided no new information regarding predation rates of M. schmitti or how predation is having negative population-level effects on the species. Thus, the statement from the commenter that predation is causing cumulative and synergistic impacts to the species is speculative. Without any new information provided by the commenter, we maintain our previous conclusion in the proposed rule that predation is not likely a significant contributing factor to the species' extinction risk throughout its range.

    Spiny Angelshark

    Comment 17: The same commenter from Comment 16 also disagreed with our determination that predation is not an operative threat to the spiny angelshark, and argued that our determination is inconsistent with information presented in the status review for the species. The commenter pointed to the status review (Casselberry and Carlson 2015e), which determined that small spiny angelsharks are infrequently cannibalized by large male spiny angelsharks and eaten by sand tiger sharks, copper sharks, and broadnose sevengill sharks. The commenter contends that although predation by a native predator would typically not cause the extinction of a prey species under natural conditions, spiny angelshark populations are already depleted and are subject to additional threats. As a result, any additional mortality will exacerbate the threats that they are already subjected to. The commenter concluded that predation by other shark species is causing cumulative and synergistic impacts to spiny angelsharks that are exacerbating the other threats that they are facing.

    Response: We acknowledge that the information from the status review confirms that spiny angelsharks are a prey item of various shark species, and we considered this information in the proposed rule; however, the commenter provided no new information regarding predation rates of spiny angelsharks or how predation is having negative population-level effects on the species. Thus, the statement from the commenter that predation is causing cumulative and synergistic impacts to the species is speculative. The status review notes that predation of spiny angelsharks by tiger and broadnose sevengill sharks has only been documented in “low frequencies,” suggesting that spiny angelsharks may not be a preferred prey item of these species. Without any new information provided by the commenter, we maintain our previous conclusion in the proposed rule that predation is not likely a significant contributing factor to the species' extinction risk throughout its range.

    Argentine Angelshark

    Comment 18: Similar to Comments 16 and 17 above, the same commenter also disagreed with our determination that predation is not an operative threat to the Argentine angelshark, and argued that our determination is inconsistent with information presented in the status review for the species. The commenter pointed to the status review (Casselberry and Carlson 2015f), which said: “studies of South American sea lion (Otaria flavescens) diet in Uruguay found that they consume Argentine angelsharks, particularly in Cabo Polonio.” The commenter contends that although predation by a native predator would typically not cause the extinction of a prey species under natural conditions, Argentine angelshark populations are already depleted and subjected to additional threats. As a result, any additional mortality will exacerbate the threats that they are already subjected to. The commenter concluded that predation by this sea lion species is causing cumulative and synergistic impacts to Argentine angelsharks that are exacerbating the other threats that they are facing.

    Response: We acknowledge that the information from the status review confirms that Argentine angelsharks are a prey item of the South American sea lion, and we considered this information in the proposed rule; however, the commenter provided no new information regarding predation rates of Argentine angelsharks elsewhere throughout its range or how predation is having negative population-level effects on the species. Thus, the statement from the commenter that predation by South American sea lions is causing cumulative and synergistic impacts to the species is speculative. Therefore, based on only one study from the status review (Szteren 2006), which found predation of Argentine angelsharks in only one of four study areas in Uruguay (Cabo Polonio), we maintain our previous conclusion in the proposed rule that predation is not likely a significant contributing factor to the species' extinction risk throughout its range.

    Inadequacy of Existing Regulatory Mechanisms General Comments Applicable to Multiple Species

    Comment 19: One commenter asserted that the references to Argentina's FAO NPOA-sharks was only mentioned tangentially and incompletely. The commenter asserts that the results of the plan are published and communicated to the relevant multilateral FAO forums who are satisfied with the achievements thus far. In terms of monitoring and implementation of the FAO NPOA-sharks, the commenter noted that the Technical Advisory Group (TAG), which monitors and reviews the plan, filed a proposed update, which was approved by the Federal Fisheries Council, the body responsible for the establishment of the national fisheries policy in Argentina.

    Response: We have reviewed the most recent documents related to Argentina's FAO NPOA-sharks mentioned by the commenter. The update to the FAO NPOA-sharks was approved in 2015 (ACTA CF No. 42/2015) and specifically revised the objectives and actions set forth in Chapter IV of the 2009 plan. We also reviewed the proceedings from the TAG workshop held to review and update the FAO NPOA-sharks (TAG 2015), and while it provided progress on the actions and goals outlined in Argentina's FAO NPOA-sharks, it did not provide any information specific to informing the status of any of the proposed species, or evidence of the adequacy of these actions in protecting these species. In one section of the report, it documents the number of M. schmitti and angelshark individuals found at two ports during sampling by El Instituto Nacional de Investigación y Desarrollo Pesquero (INIDEP) from 2013-2015; however, without additional information on sampling design or methods, we have no way of interpreting the results. Based on the proposed goals and actions, and progress towards these goals, it is clear that gaps in knowledge about many of the chondrichthyan species in Argentine waters exist, but that these gaps will hopefully be filled in the foreseeable future. However, at this time, this information does not change our conclusions regarding the status of any of the proposed species. In fact, the workshop report notes that one of the actions in the FAO NPOA-sharks is to establish criteria to categorize the conservation status of the different species of chondrichthyans in the Argentine Sea, with the first application of this to the priority species listed in the FAO NPOA-sharks, including Squatina spp. and M. schmitti. However, it was noted that no progress has been made on this action, but that a plan to figure out the allocation of funds for this action was suggested in 2016.

    Comment 20: One commenter provided a list of research surveys from which the results were used to evaluate the closure areas that have been established for M. schmitti and S. guggenheim in waters of Argentina and the AUCFZ. Additionally, the commenter provided a list of Argentina's regulations pertinent to fisheries operating in the “El Rincón” area as well as regulations pertaining to recreational fishermen.

    Response: In terms of the list of research surveys, we were not provided the actual data or results from these surveys (only the year of the survey, type, area of operation, season, month, and number of sets were provided) and, thus, we could not evaluate the relevance of these surveys to informing our determination of the status of either the narrownose smoothhound or spiny angelshark. While we acknowledge that Argentina is actively working on the implementation of its FAO NPOA-sharks, and currently regulates its fisheries through a number of management measures, including closure areas to protect chondrichthyans, the adequacy of these measures in controlling the threat of overutilization to the proposed species is still uncertain. It is not clear, from the information provided by the commenter, if these regulations have improved the status of any of the proposed species. Based on the best available information for the species found in Argentinean waters, including population data, demographic risks, and current exploitation rates, it appears that they face either moderate or high risks of extinction. Further discussion of the data informing this extinction risk analysis can be found in the proposed rule as well as the Summary of Factors Affecting the Six Species and Extinction Risk sections of this final determination.

    Comment 21: One commenter stated that total permitted catches in Argentine waters and the AUCFZ are set both nationally and within the framework of the Comisión Técnica Mixta del Frente Marítimo (CTMFM), respectively. The commenter further noted that catch limits are based on the advice from the TAG, which uses information from research surveys and fishery statistics to develop stock assessment models and propose management options using a precautionary approach. The commenter references a list of research surveys conducted since 2006 that they assert was not considered in the proposed rule.

    Response: We note that the TAG considers the available data, including the referenced research surveys, when it develops stock assessment models and provides advice to the CTMFM. At the time of the proposed rule, we did not have access to the latest documents from the TAG or CTMFM (or the results from the referenced research surveys). However, since publication of the proposed rule, we have received new data from the CTMFM, including recent TAG reports and stock assessment models that show trends in landings, CPUE, and biomass of the narrownose smoothhound and spiny angelshark in the AUCFZ, and have revised the discussion concerning the threats to these species and their current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Comment 22: One commenter stated that the proposed rule did not consider the CTMFM Resolution No. 10/2000, which prohibits vessels over 28 meters (m) in length from operating in the coastal area to the isobath 50 m deep within the AUCFZ. The commenter asserted that this resolution has had a positive impact on reducing fishing effort for the proposed species in the AUCFZ.

    Response: While we agree that this prohibition has likely reduced fishing effort on the species within the AUCFZ somewhat, the extent of the reduction largely depends on the species. For example, this prohibition would have no effect on fishing effort for S. argentina, whose depth ranges from 100 m to 400 m. For S. guggenheim, Hozbor and Pérez (2016) note that the fleet comprised of boats 18-25 m in length, which would not fall under this prohibition, mostly operate in the depth stratum where S. guggenheim would occur, and were responsible for over 50 percent of the landings of the species from 2000-2015. The narrownose smoothhound shark, M. schmitti, is found in up to 120 m depths in Argentina, and, therefore, may still be subject to fishery-related mortality by these larger vessels. Based on new information received since publication of the proposed rule on the trends in landings, CPUE, and biomass of narrownose smoothhounds and spiny angelsharks in the AUCFZ, and the adequacy of existing regulatory measures, we have since re-evaluated the extinction risk of both species (see sections Summary of Factors Affecting the Six Species and Extinction Risk). Based on the results, we do not find that the above prohibition has likely reduced mortality on either of these species to the point where they would not warrant listing under the ESA.

    Comment 23: One commenter noted that the Argentine industrial fleet operates satellite monitoring systems that report the position of each vessel every hour. The commenter elaborated that the global positioning information of the fleet is published on the Web site of the Ministry and is updated every 12 hours, demonstrating absolute transparency and also the effective control of closed areas. Additionally, the commenter notes that this information is integrated in a way that allows the issuance of legal catch documents, which are requested by exporters to be presented to customs authorities.

    Response: While we thank the commenter for this information, we do not find that it changes our conclusions regarding the threats to the proposed species, or their respective overall risks of extinction.

    Comment 24: One commenter, citing Bornatowski et al. (2014), Barreto et al. (2015), Amaral and Jablonski (2005), and Ricardo-Pezzuto and Mastella-Beninca (2015), asserted Brazilian regulatory measures are inadequate to protect any of the proposed species. Specifically, the commenter states that monitoring of both commercial and artisanal fisheries in Brazilian waters is insufficient due to a lack of monitoring capacity and data. Furthermore, the commenter asserted that instead of making serious efforts to improve protections for sharks and decrease overfishing, Brazil has taken several actions that will have the opposite effects, including ending its observer program and creating favorable conditions to allow fishing fleets to expand in the area. The commenter claims that protected areas are insufficient in number and extent, and that management plans have not been implemented or are lacking altogether for some of these areas, with attempts at shark protections met with strong opposition from the fishing industry. Additionally, the commenter mentioned that trawling licenses in Brazil allow their holders to catch and retain dozens of species, both target and non-target, with the fleets authorized to catch many species that are not in their licenses. Citing the narrownose smoothhound status review (Casselberry and Carlson 2015c), the commenter noted that at least one population of narrownose smoothhounds may have been extirpated in Brazil as a result of overfishing and concluded that overfishing in this country has the ability to extirpate other populations as well.

    Response: We agree with the commenter that overutilization and inadequate existing regulatory measures are threats to the proposed species within Brazilian waters. These threats have been thoroughly considered and discussed in the proposed rule and have led to our listing determinations. We reviewed the papers mentioned by the commenter and find that these papers do not present new information specific to any of the proposed species that was not already considered or would change our prior conclusions regarding threats to these species.

    Comment 25: One commenter agreed with our evaluation of the adequacy of existing regulatory measures in Uruguay. The commenter, citing Barreto et al. (2015), stated that there is a general scarcity of fishing statistics from Uruguay and that the lack of information and effective regulation in the face of exploitation has caused elasmobranchs to decline in Uruguayan waters. The commenter asserted that protections for the proposed species in Uruguay are likely to be inadequate until conservation is prioritized as a political matter and the protections in Uruguay's FAO NPOA-sharks are strengthened. The commenter concluded that all of the proposed shark species that are present in Uruguayan waters are thus threatened by inadequate regulatory measures.

    Response: We thank the commenter for the comment and note that a thorough discussion and analysis of the adequacy of existing regulatory measures in Uruguay and the other portions of the proposed species' ranges can be found in the proposed rule as well as in the Summary of Factors Affecting the Six Species and Extinction Risk sections of this final rule.

    Comment 26: The same commenter from Comment 25 agreed with our evaluation of the inadequacy of Argentina's existing regulatory measures, asserting that Argentina's catch records are inaccurate and that any regulatory mechanisms based on those figures are therefore unreliable. The commenter cited a study done by Villasante et al. (2015), which reconstructed total marine fisheries removals in Argentina's Exclusive Economic Zone from 1950-2010 to provide estimates of unreported components of fisheries catch in various sectors. Villasante et al. (2015) found that reconstructed catch was 55 percent higher than FAO reported landings. The commenter asserted protections for the proposed species in Argentina are likely to be inadequate until conservation is prioritized as a political matter and the protections in Argentina's FAO NPOA-sharks are strengthened.

    Response: We thank the commenter for the comment and note that a thorough discussion and analysis of the adequacy of existing regulatory measures in Argentina and the other portions of the proposed species' range can be found in the proposed rule as well as in the Summary of Factors Affecting the Six Species and Extinction Risk sections of this final rule.

    Comment 27: One commenter disagreed with the statement from the proposed rule (80 FR 76091; December 7, 2015) that cited McCormack et al. (2007) as evidence that total allowable catch limits, minimum sizes, and annual quotas for elasmobranchs are largely ignored and poorly enforced in Argentina. The commenter stated that in Argentina, there has been progress in the last 15 years in the study of these species, in optimizing data collection, and in personnel training to conduct research, but also for the control and monitoring of landings and adherence to management measures. The commenter stated these efforts have increased since the implementation of Argentina's FAO NPOA-sharks in 2009. The commenter also noted that total allowable catches (TACs) in Argentina are not theoretical but established by the authorities on the basis of the best scientific advice and are monitored and enforced by authorities of Argentina and the CTMFM.

    Response: While we agree with the commenter that efforts to conserve sharks have increased in Argentina since 2009, and find that the information provided by the commenter suggest current management measures are enforced by authorities of Argentina and the CTMFM, we note that the existing regulatory measures, including TACs, may not be adequate to prevent further declines in the the proposed species. Based on new information received since publication of the proposed rule, including data showing trends in landings, CPUE, and biomass of narrownose smoothhounds and spiny angelsharks in the AUCFZ, as well as information regarding TACs for these species and the adequacy of existing regulatory measures, we have since re-evaluated the extinction risk of both species. This discussion can be found in the sections Summary of Factors Affecting the Six Species and Extinction Risk below.

    Comment 28: One commenter asserted that another major regulation that was not considered in the proposed rule was the implementation of a maximum allowance of landed chondrichthyes per fishing trip in Argentina. The commenter noted that presently, the CTMFM (Resolution 09/2013) and the Federal Fisheries Council of Argentina have implemented regulations that state that landings of rays and sharks may not be more than 30 percent of the total landings per trip. The landings of chondrichthyes may not be more than 50 percent of the total landings per trip. The commenter referenced a paper by Monsalvo et al. (2016) to indicate an adherence to this regulation by the Argentine fleet and asserted that the implementation of the management action, together with other chondrichthyan-specific regulations (including bans and TACs), have reduced fishing pressure on M. schmitti and S. guggenheim. The commenter concluded that it is wrong to assume that the decline in catches of these two species unfailingly indicates a decrease in abundance, but rather is due to the implementation of stringent management measures that were established with the explicit aim of reducing catches through reduction of effort directed on these species.

    Response: As mentioned previously, based on new data we received since publication of the proposed rule that shows trends in landings, CPUE, and biomass of the narrownose smoothhound and spiny angelshark in the AUCFZ, we have re-evaluated our extinction risk analyses for these two species. We note that the models upon which the new information is based took into account the impacts of management measures, including Resolution 09/2013, in estimating biomass and abundance trends (see Cortés et al. 2016a and 2016b). Based on this new information, we agree with the commenter that management measures may have slowed the decline in the abundance of these two species (by reducing fishing effort and restricting catches); however, we find that existing regulatory measures are not adequate to prevent further declines in the species. We direct the commenter to our discussion of threats and evaluation of the extinction risk of these two species in the sections Summary of Factors Affecting the Six Species and Extinction Risk below.

    Comment 29: One commenter noted that we did not identify Squatina spp. as one of the priority species in Argentina's FAO NPOA-sharks.

    Response: We thank the commenter for this information and acknowledge that Argentina's FAO NPOA-sharks does include Squatina spp. in the list of priority species that are commercially exploited in Argentine waters.

    Comment 30: One commenter asserted that Argentinean and Uruguayan fishing authorities are not serious about protecting angelsharks. The commenter pointed to the practice of setting catch limits by the CTMFM. Specifically, the commenter noted that the CTMFM set a catch limit of 2,600 tons in 2012 for Squatina spp. within the AUCFZ. This catch limit was met, and in response to this, an additional reserve of 400 tons was proposed in 2013 in the event that the 2,600-ton limit was reached again. The commenter noted that this was followed by a 10 percent increase that could be added to the 2,600-ton limit if the limit was reached in 2014 and 2015. The commenter asserted that this malleability of the catch limit begs the question of why have a limit at all if the government's response is to raise the limit once it is reached.

    Response: We note that the commenter provides only opinion regarding the effectiveness of the CTMFM catch limits on the status of the species. Since publication of the proposed rule, we have received new information on the adequacy and effectiveness of the CTMFM imposed catch limits for M. schmitti and S. guggenheim and have re-evaluated the extinction risks of these two species. This discussion can be found in the sections Summary of Factors Affecting the Six Species and Extinction Risk below.

    Narrownose Smoothhound Shark

    Comment 31: One commenter mentioned a tagging mark-recapture program for narrownose smoothound sharks, which was carried out jointly with artisanal fishermen in the southern region of the Province of Buenos Aires. The commenter notes that the results of this activity are presented in Pérez et al. (2014).

    Response: While we find that tagging work will be useful in contributing valuable data for M. schmitti within Argentine waters, the paper referenced only provides results from a preliminary study that analyzed the problems currently associated with mark-recapture studies in Argentina, which the authors of the study state is a country with practically no experience in this technique. The paper discusses the outreach involved in the reporting process and issues with the lack of precision in recapture positions. However, after reviewing the paper, we do not find that the information provided changes any of our conclusions regarding the status of the narrownose smoothhound.

    Comment 32: One commenter stated that we did not include the “best available information” in relation to the status of M. schmitti. The commenter recommended that we check the CTMFM Web site for recent information, including stock assessments and regulatory measures, related to the status of this species.

    Response: Prior to publication of the proposed rule, we considered the publicly available information from the CTMFM Web site when we evaluated the status of M. schmitti. We have since been in correspondence with the CTMFM and received new data showing trends in landings, CPUE, and biomass of the narrownose smoothhound and have revised the discussion concerning the threats to this species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.

    Striped Smoothhound

    Comment 33: One commenter, citing Tinidade-Santos and Freire (2015), stated that Brazilian fisheries managers rely, in part, on minimum landing sizes based on fishes' sizes at first maturity for managing fisheries, and that minimum landing size is the only fishery control used for 48 species in Brazil. The commenter quoted a section from Tinidade-Santos and Freire (2015), which noted that the current minimum landing size for M. fasciatus in Brazil would not allow it to reproduce at least once in its lifetime. The commenter states that removing individuals before they have reproduced risks imminent population collapse and that Brazil's failure to adequately limit catch of immature individuals is another threat to the elasmobranchs in its waters.

    Response: We agree that fishing for M. fasciatus before it has reached maturity has serious implications for its long-term survival. In the proposed rule, we note that the constant fishing pressure on M. fasciatus in Brazil's coastal commercial and artisanal fisheries affects the recruitment of juvenile sharks into the population and has contributed to significant declines in neonate and juvenile populations. We specifically state, “Thus, the intense fishing effort by the commercial and artisanal fisheries on the Plataforma Sul appear to be negatively affecting the reproductive capacity and growth of the population throughout its range,” with this information contributing to our determination to list the species as endangered throughout its range. As the commenter provides no additional information on any of the other proposed species, our conclusions regarding threats to these species in Brazilian waters remain the same.

    Spiny Angelshark

    Comment 34: One commenter highlighted the statement in the proposed rule regarding the declining catch of S. guggenheim in Santa Catarina, Brazil: “in 2004, landings of S. guggenheim along with S. occulta were prohibited and, as such, the decline in landings data after 2004 may be a reflection of this prohibition” (80 FR 76098; December 7, 2015). The commenter asserted that the decline in catch is more likely indicative of further population decline or decreased reporting as fisheries regulations are commonly ignored in Brazil and the observed large declines are not consistent with even negligible compliance with fisheries regulations.

    Response: The commenter does not provide any new information to consider, besides their opinion, in regards to the cause of the decline in landings of the species. We note in the proposed rule that the best available information indicates S. guggenheim has undergone substantial population declines in Brazilian waters, “with evidence of negative population growth rates that led to significant decreases in the overall abundance of the species to the point where catch rates and observations of spiny angelsharks are extremely low” (80 FR 76098). We also concluded that the fishing effort (both by trawl and gillnet fleets) is high and poorly regulated, with the present level of fishing effort by the artisanal and industrial fisheries on Brazil's continental shelf likely to lead to further declines in the spiny angelshark population. A comprehensive discussion of the threats to S. guggenheim within Brazilian waters may be found in the proposed rule.

    Comment 35: One commenter advised us to not place much weight on the protective ability of seasonal fishing bans in Uruguay that are designed to protect other species, but that may also provide some protection to the spiny angelshark based on overlap with the species' habitat. The commenter asserted that these regulations do not cover the entire habitat of the species and could be amended at any time irrespective of the status of the spiny angelshark, as they are based on protecting other species.

    Response: While the commenter is correct that the seasonal bans do not cover the entire spiny angelshark habitat, the commenter provided only opinion and speculation regarding the effectiveness or adequacy of these seasonal fishing bans in Uruguay in relation to protections for the spiny angelshark. Since publication of the proposed rule, we have received new information on the adequacy of existing regulatory measures to protect S. guggenheim from threats and have re-evaluated the extinction risk of this species. This discussion can be found in the sections Summary of Factors Affecting the Six Species and Extinction Risk below.

    Argentine Angelshark

    Comment 36: The same commenter from Comment 32 above also stated that we did not include the “best available information” in relation to the status of S. argentina and recommended the CTMFM Web site for more information.

    Response: Prior to publication of the proposed rule, we considered the publicly available information from the CTMFM Web site when we evaluated the status of S. argentina. Since the publication of the proposed rule, we have not received any new information regarding the status of this species, or found any newly available information on the CTMFM Web site, nor does the commenter provide any new data to consider. As such, we maintain our previous conclusion in the proposed rule that the Argentine angelshark is presently at a high risk of extinction throughout all of its range.

    Comments on Demographic Risks to the Species Brazilian Guitarfish

    Comment 37: One commenter asserted that a study by De-Franco et al. (2012) appears to have additional Brazilian guitarfish decline data that we did not consider in our proposed rule, and suggested that we should consider this information in our final listing decision for the species.

    Response: We reviewed and considered the De-Franco et al. (2012) study in our proposed listing determination for the Brazilian guitarfish. In fact, we cited this study to support our conclusion that regulatory mechanisms are likely inadequate for the species in Brazil, which, in turn, supported our proposal to list the species as endangered. Upon re-reviewing De-Franco et al. (2012), we note that Miranda and Vooren (2003) is cited as evidence that R. horkelii populations declined by approximately 85 percent in the state of Rio Grande do Sul between 1985 and 1997. Our proposed rule discussed this information in detail in the Overutilization for Commercial, Recreational, Scientific, or Educational Purposes section where we stated that “Based on the CPUE trends, abundance of R. horkelli on the Plataforma Sul in depths of 20 m-200 m is estimated to have decreased by about 85 percent between 1975 and 1999 (Vooren et al. 2005a)” (80 FR 76077; December 7, 2015). Therefore, we disagree with the commenter that we did not consider the Brazilian guitarfish decline data provided in De-Franco et al. (2012), as that information was covered in detail in the proposed rule and contributed to our proposed endangered listing determination for the Brazilian guitarfish.

    Narrownose Smoothhound

    Comment 38: One commenter stated that our analysis of productivity as a demographic threat to the narrownose smoothhound is flawed. The commenter noted that although we determined that the narrownose smoothhound has a “relatively high intrinsic rate of increase,” the commenter asserted that the species still has a low rate of increase that will make it more susceptible to decline and less able to recover from overexploitation than an r-selected species. The commenter believes that this information should elevate the threat that overfishing poses to the species.

    Response: While we agree with the commenter that the narrownose smoothhound ultimately has a low intrinsic rate of increase compared to “r-selected” species, we still maintain that there is a gradient of productivity levels among shark species that help determine the level of exploitation that can be sustainable. As described in the proposed rule, M. schmitti is able to withstand higher levels of exploitation than other shark species, with sustainable exploitation rates equivalent to an annual removal rate of about 10 percent of the population (Cortés 2007). With no new information provided by the commenter, we find that there is no evidence that the species' productivity is leading to depensatory processes that would elevate its extinction risk; therefore, while low productivity inherently increases its risk, we have no evidence to suggest that it is currently placing the species in danger of extinction.

    Spiny Angelshark

    Comment 39: One commenter suggested that we should consider the extent to which the spiny angelshark populations are genetically isolated, and the extent to which this increases their extinction risk by reducing redundancy and reducing the ability of the species to decrease the effects of removals through migration.

    Response: The commenter provides no new information on the genetics or population structure of the species. As mentioned in the proposed rule, we considered the demographic factors of abundance, growth rate and productivity, spatial structure and connectivity, and diversity, which reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk. We note that the species faces significant demographic risks, including extremely low fecundity, declining population growth rate, and limited connectivity. As the commenter did not provide any new genetic or population structure data to consider in our demographic analysis, our discussion regarding the species' demographic risks specifically from spatial structure and connectivity and diversity remains the same. However, we have since revised our extinction risk analysis for the species based on new information received since the publication of the proposed rule, and this discussion can be found in the section Extinction Risk below.

    Argentine Angelshark

    Comment 40: One commenter asserted that the relative rarity of the Argentine angelshark represents an additional threat to the species as it “. . . may not have the redundancy necessary to mediate against overutilization.” The commenter then cited to the proposed rule and stated: “This is exacerbated by the fact that the species appears unable to move between populations, indicating that reductions will likely not be mediated by migrating individuals and that extirpations are therefore more likely.”

    Response: We considered the relative rarity of the Argentine angelshark as well as its spatial structure and connectivity in the Demographic Risk Analysis—Abundance and Spatial Structure/Connectivity sections of the proposed rule. These factors were also discussed and considered in the Risk of Extinction section of the proposed rule and contributed to the proposed endangered listing for the Argentine angelshark. As stated in the proposed rule, we note that given the species' restricted range and present rarity throughout its range, combined with its limited movement and dispersal between populations and low reproductive output, S. argentina is likely strongly influenced by stochastic or depensatory processes. This vulnerability is further exacerbated by the present threats of overutilization and inadequacy of existing regulatory measures that are and will continue to significantly contribute to the decline of the existing populations (based on the species' demographic risks), compromising the species' long-term viability. Therefore, without any new information from the commenter, we disagree that the species' relative rarity should be re-evaluated as a separate threat to the species, as it was already thoroughly evaluated in the proposed rule.

    Comments Outside of the Scope of the Proposed Rule

    Comment 41: One commenter noted that the proposed species have not been included in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) appendices, and, as such, efforts should be made in this multilateral forum before listing under the ESA. In this regard, the commenter noted that the United States should consider the impacts of the proposal on developing countries, including any restrictions on commercial exports, and consult with the countries where these species occur.

    Response: Under the ESA, we are required to determine whether a species is endangered or threatened based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any State or foreign nation to protect the species. We cannot consider economic impacts when making listing determinations. In addition, the standards for listing species in the CITES appendices are separate from the standards for listing species under the ESA. While we work with the U.S. Fish & Wildlife Service (USFWS) to carry out the provisions of CITES, providing guidance and scientific support on marine issues and participating fully in the implementation of CITES for species under our jurisdiction, the listing of species on the CITES appendices is not a prerequisite for listing under the ESA. Furthermore, ESA listing will not restrict export of the six species from their range countries. Section 9(a)(1) restricts, among other things, only import into and export from the United States by persons subject to U.S. jurisdiction. It does not regulate import into or export from other countries. In terms of consulting with foreign nations where the proposed species occur, and as required by ESA Section 4(b)(5)(B), we gave notice of and directly solicited comments on our proposal from the foreign ambassadors of each country in which the six species are believed to occur. We received a response only from the Embassy of the Argentine Republic.

    Comment 42: One commenter requested that we amend the proposal to use the double nomenclature “Islas Malvinas” and “Falkland Islands” in our reference to the Falkland Islands within the 12-month finding for the graytail skate (Bathyraja griseocauda) (80 FR 76067; December 7, 2015), noting the dispute between the government of Argentina and the United Kingdom concerning the sovereignty over the archipelago.

    Response: We acknowledge the double nomenclature, but find an amendment to change the 12-month finding text for a species not included in this final rule to be unnecessary as no official regulation, nor regulatory text, containing the incomplete nomenclature was implemented or published in our U.S. Code of Federal Regulations as a result of the 12-month finding.

    Summary of Changes From the Proposed Listing Rule

    Based on public comments and new information received since the publication of the proposed listing rule, we made the changes listed below.

    1. We re-evaluated threats to the species and the extinction risk of the narrownose smoothhound shark based on new information and have determined that the species remains at a moderate risk of extinction.

    2. We re-evaluated threats to the species and the extinction risk of the spiny angelshark based on new information and have determined that the species is presently at a high risk of extinction.

    3. We also revised the common names of the proposed Squatina species to reflect “angelsharks” as a single word (in the proposed rule, we referred to them as “angel sharks”). We find that either spelling is acceptable; however, because we have previously listed three other “angelshark” species under the ESA (81 FR 50394; August 1, 2016), in order to be consistent, we are following the same naming convention for the angelshark species addressed in this final rule.

    A summary of the new information received since the publication of the proposed rule as it relates to the status of the narrownose smoothhound and spiny angelshark is presented in the remainder of this document, along with our re-evaluation of the extinction risk of these two species based on this new information and our final listing determinations for all six elasmobranch species. None of the information received since publication of the proposed rule causes us to reconsider our previous findings for the other four elasmobranch species as reflected in the proposed rule. Thus, all of the information contained in the status review reports and proposed rule for the daggernose shark, Brazilian guitarfish, striped smoothhound shark, and Argentine angelshark is reaffirmed in this final action.

    Species Determinations

    We did not receive any new information related to taxonomic status of any of the six elasmobranch species. Therefore, based on the best available scientific and commercial information described in the proposed rule (80 FR 7606, December 7, 2015) and included in the status review reports (Casselberry and Carlson 2015 a-f), we find that the daggernose shark (I. oxyrhynchus), Brazilian guitarfish (R. horkelii), striped smoothhound shark (M. fasciatus), narrownose smoothhound shark (M. schmitti), spiny angelshark (S. guggenheim), and Argentine angelshark (S. argentina) are taxonomically-distinct species, meeting the definition of “species” pursuant to section 3 of the ESA, and are eligible for listing under the ESA.

    Summary of Factors Affecting the Six Species

    Next we consider whether any one or a combination of the five factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species and result in the species meeting the definition of “endangered species” or “threatened species.” The comments that we received on the proposed rule provided information that was either already considered in our analysis or was not substantial or relevant, and, therefore, did not change our analysis of or conclusions regarding any of the section 4(a)(1) factors or their interactions for the daggernose shark (I. oxyrhynchus), Brazilian guitarfish (R. horkelii), striped smoothhound shark (M. fasciatus), and Argentine angelshark (S. argentina). Therefore, all of the information, discussion, and conclusions on the summary of factors affecting these four elasmobranch species contained in the status review reports and proposed rule is reaffirmed in this final action.

    For the narrownose smoothhound and spiny angelshark, below we provide a summary and analysis of the new information received since publication of the proposed rule (and not already discussed in the response to public comments) on the threats to these two species.

    Narrownose Smoothhound

    As noted in the proposed rule, the narrownose smoothhound is the most abundant and widely distributed triakid (houndshark) in the Argentine Sea (Van der Molen and Caille 2001). In Argentina, M. schmitti is considered the most important elasmobranch in Argentine fisheries, making up 9-12 percent of the total landings from coastal fleets (Galíndez et al. 2010), and is the most heavily exploited shark species in artisanal fisheries. Cortés et al. (2016a) note that the shark is generally found in greater abundance in the estuarine systems of El Rincón and the Río de la Plata, where it is mainly captured by the Argentine multi-species coastal fleet. In Uruguay, the species is the target of the artisanal gillnet fishery and incidentally caught by the artisanal and industrial trawl fleets operating in the Atlantic Ocean, including within the AUCFZ.

    In terms of factors affecting the status of the narrownose smoothhound, the proposed rule concluded that the main threat to this species is overutilization for commercial purposes, with current regulatory measures inadequate to protect the species from further overutilization. The proposed rule provided data on the decline in both the CPUE and biomass of the species throughout its range due to fishing pressure. Additionally, the proposed rule noted a decrease in the estimated mean size and size at maturity of narrownose smoothhounds off the coast of Argentina since the 1970s, providing further evidence of the overexploitation of the species.

    Since publication of the proposed rule, we received updated and new information related to the trends in landings, CPUE, and biomass of the narrownose smoothhound specifically in the AUCFZ (i.e., Río de la Plata and Maritime Front). As the proposed rule notes, the AUCFZ is the area where current fisheries information indicates narrownose smoothhounds may likely be most abundant but also heavily targeted. The available data at the time of the proposed rule showed that landings of the species in the AUFCZ decreased in recent years, from 4,480 t in 2010 to 2,921 t in 2014 (CTMFM 2015). Although annual catch limits for M. schmitti have been implemented in the AUCFZ by the CTMFM since 2002, the proposed rule noted that “Due to a lack of abundance data since 2003, it is unclear whether the catch limits for Mustelus spp. have positively affected the population . . . though it is worth noting that since 2010, catches of M. schmitti in the AUFCZ have been below the total allowable levels and on a decline (CTMFM 2015).” Based on new information received from the CTMFM, biomass of the species in 2016 is estimated to be around 53 to 64 percent of virgin (i.e., 1983) biomass (CTMFM 2016). These values are based on three models from Cortés et al. (2016a) that incorporated indices of abundance estimated from INIDEP research surveys and Argentine commercial fleet data and annual landings data of M. schmitti by Uruguayan and Argentinean vessels in the AUCFZ. While all models showed a general decline in biomass since the late 1980s, in recent years, biomass has appeared to stabilize and even increase (Cortés et al. 2016a). Since 2013, when management measures were implemented in the AUCFZ that set maximum catch limits per trip for sharks, rays, and chondrichthyans (see Resol. CFP 04/2013 and Resol. CTMFM 09/2013), biomass of M. schmittti declined by less than 1 percent in two of the models examined, and increased by 2.6 percent in the third model. However, based on our interpretation of the available information, we find that annual catch limits specifically for M. schmitti are currently set too high. For each model, Cortés et al. (2016a) provide an estimate of the “replacement capture” for each year, which the authors define as the catch value that would produce stable biomass from time t to time t + 1. Since 2012, when the CTMFM began setting species-specific total permissible catch limits for narrownose smoothhound, these catch limits have always been higher than the replacement capture estimates. Most recently, the 2016 annual catch limit set by the CTMFM was 3,500 t despite replacement capture estimates that range from 2,568 t to 3,163 t. As such, these annual catch limits appear inadequate to ensure stable biomass numbers for M. schmitti into the future. Yet, as mentioned above, the models in Cortés et al. (2016a) depict stable and increasing biomass trends for the species. These trends are likely explained by the fact that actual landings of the species have been close to and even below the replacement capture estimates since 2012, and while these landings figures may potentially indicate a decrease in the overall abundance of the species and, therefore, catchability of the species, modeled CPUE trends suggest otherwise, showing a slight decrease since the mid-2000s and no trend (or stable trend) in recent years (Cortés et al. 2016a). However, the authors caution that considering the susceptibility of the species to exploitation, the previous overexploitation of the species, and the uncertainty of the data available for the models, management of the species should be established using a highly precautionary approach (Cortés et al. 2016a).

    Additionally, while the proposed rule noted a chronological decrease in the estimated size of maturity of narrownose smoothhounds in the AUCFZ and El Rincon regions, indicative of overutilization of the species, new information suggests that average maturity size may either vary by site or has potentially increased again in recent years. Specifically, the proposed rule reported maturity estimates of 60 centimeters (cm) and 62 cm total length (TL) for males and females, respectively, in 1978 and noted that by 1998, maturity estimates had decreased to 57.6 cm TL for males and 59.9 cm for females (80 FR 76087; December 7, 2015). Based on individuals caught in 2004, Cortes (2007) found the length at 50 percent maturity (LT50) for females to be only 56 cm TL. However, de Silveira et al. (2015) collected samples of narrownose smoothhounds from artisanal fisheries in La Paloma (Rocha) during the years 2014 and 2015 and determined that LT50 for males was 60.2 cm TL (n = 431) and for females it was 61 cm TL (n = 280), estimates that match those that were recorded from over three decades ago. Given this new information, along with the indication of a potentially stable population, we find that the threat of overutilization within the AUCFZ may have been overstated in the proposed rule.

    In terms of other threats, the proposed rule noted the inadequacy of existing regulatory mechanisms to control overexploitation of the species throughout large portions of its range, including within the AUCFZ. However, the proposed rule mentioned measures in the AUCFZ that were likely effective in protecting the narrownose smoothhound, including a prohibition of demersal trawling in a section known to be an important area for chondrichthyan reproduction (referred to as statistical rectangle 3656) and additional area closures to trawling gear in other portions of the AUCFZ, like within the Río de la Plata (where historical estimates of narrownose smoothhound were as high as 44 t/nmi2; Cousseau et al. 1998), in order to protect whitemouth croaker (Micropogonias furnieri) and juvenile hake from overexploitation by the fisheries.

    Since publication of the proposed rule, we received new information regarding the likely effectiveness of the prohibition in 3656 as it pertains to the protection of narrownose smoothhound. For clarification, the boundaries of 3656 are defined as follows: (A) To the north by the parallel 36° S. and its intersection with the outer limit of the Rio de la Plata; (B) to the south, by the parallel 37° S.; (C) to the west, by the outer limit of the Argentine territorial sea; D) to the east, by the meridian 56°00′ W. Specifically, Colonello and Massa (2016) analyzed data from coastal research surveys conducted between 2011 and 2015 to examine the spatial distribution and relative abundance, including life history stages, of a number of shark and ray species within and around the 3656 closure. The surveys covered coastal areas of Buenos Aires and Uruguay up to 50 m depths. Results confirmed the presence of both sexes and all life history stages of M. schmitti within the 3656 rectangle (Colonello and Massa 2016). In the spring surveys (conducted in November and December), sets frequently showed high densities of narrownose smoothhound (greater than 2 t/mn2 (tonnes per square nautical mile)), including within the 3656 closure (Colonello and Massa 2016). The authors note that the highest concentrations of adult males and adult non-pregnant and pregnant females in the spring surveys were observed in shallow areas, supporting the assumption these areas are used for reproductive purposes (Colonello and Massa 2016). However, as the most coastal zone of the 3656 rectangle is controlled by the Province of Buenos Aires (Argentine territorial waters), the authors stress the need to ensure the full synchronicity of the closure of both the 3656 area and the Provincial part of the rectangle. This is particularly important since the Colonello and Massa (2016) data show that during the months when this does not occur (i.e., November and December), there is a redistribution of fishing effort specifically within the open Provincial coastal areas of 3656 (and in neighboring areas next to the closed areas of 3656) (Colonello and Massa 2016). Thus, while we find that the 3656 closure is adequate in providing a high degree of protection from fishery-related mortality for the narrownose smoothhound during important reproductive events, we note that the species is capable of moving in and out of this closure area and that all life history stages are found outside of the closure area and, therefore, juveniles and reproducing adults are still susceptible to being caught by fishing vessels. Additionally, when the Provincial area is also open, this significantly decreases the overall effectiveness of the closure in protecting sensitive life history stages of species from fishery-related mortality.

    As we have no new information on threats to the species outside of the AUCFZ, our conclusions from the proposed rule regarding threats to the species within Argentinean and Uruguayan waters outside of the AUCFZ, and Brazilian waters, remains the same.

    Spiny Angelshark

    As noted in the proposed rule, spiny angelsharks are found from Brazil to Argentina. Throughout its range, the species is heavily fished by commercial and artisanal fishermen; however, according to Cortés et al. (2006b), more than 80 percent of the landings of S. guggenheim correspond to catches between 34° S. and 42° S. latitudes, at depths less than 50 m. In Argentina, the spiny angelshark is commercially exploited in local fisheries that occur in the San Matías Gulf (Perier et al. 2011), which comprises around 10 percent of its range. The species is also commercially exploited by the fisheries operating in the AUFCZ, which overlaps with areas of higher concentration of the species (Jaureguizar et al. 2006; Colonello et al. 2007; Massa and Hozbor 2008; Vögler et al. 2008) and comprises around 25 percent of the species' range. In Uruguay, spiny angelsharks are captured by industrial trawling fleets in coastal and offshore waters (Vögler et al. 2008), and in southern Brazil, spiny angelsharks have been heavily fished by industrial trawlers and gillnet fleets for the past few decades (Haimovici 1998; Vögler et al. 2008).

    In terms of factors affecting the status of the spiny angelshark, the proposed rule concluded that the main threat to this species is overutilization for commercial purposes. The proposed rule provided data on the decline of the species in Brazil, noting that the impact of heavy fishing pressure on the species by trawlers and gillnet fleets since the 1980s resulted in an 85 percent decline in the abundance of the S. guggenheim population. Fishing mortality rates exceeded population growth rates, with an annual rate of population decline of 16 percent in the mid-1990s. In Argentina, the proposed rule cited CPUE data that showed population declines of up to 58 percent in the late 1990s, but reported a lack of recent abundance estimates or trends throughout the rest of the species range, particularly in the AUCFZ.

    Since publication of the proposed rule, we received updated and new information related to the trends in landings, CPUE, and biomass of the spiny angelshark specifically in the AUCFZ. As the proposed rule notes, the AUCFZ comprises around one quarter of the species' range and is where survey data suggest the species is likely at highest concentration. The available data at the time of the proposed rule showed that landings of the species in the AUFCZ decreased in recent years, from 3,763 t in 2010 to below 2,300 t in 2014 (CTMFM 2015). These catch levels are similar to those reported in the 1990s in Argentine waters, which resulted in declines of up to 58 percent in the species' abundance. Beginning in 2012, annual maximum permitted catch limits for all Squatina spp. (of which the large majority are S. guggenheim) have been implemented in the AUCFZ by the CTMFM; however, these limits have never been met since 2013. The proposed rule concluded that ” . . . without effort information, it is unclear whether these regulations and the corresponding decreases in landings can be attributed to adequate control of the exploitation of the species or rather reflects [sic] the lower abundance of the species from declining populations, or more likely a combination of the two scenarios” (80 FR 76097).

    Based on new information received from the CTMFM, biomass of the species in 2016 is estimated to be around 46 percent of optimum biomass for the species (CTMFM 2016). This value is based on two models from Cortés et al. (2016b) that incorporated indices of abundance estimated from INIDEP research surveys and annual landings data of angelsharks by Uruguayan and Argentinean vessels in the AUCFZ. The fishing mortality rate of S. guggenheim in 2016 was estimated to be 65 percent higher than the fishing mortality rate at maximum sustainable yield (Cortés et al. 2016b). Based on the estimates of biomass since the early 1980s, S. guggenheim biomass has declined by 77 to 81 percent (depending on the model) (Cortés et al. 2016b). Since 2013, when management measures were implemented in the AUCFZ that set maximum catch limits per trip for sharks, rays, and chondrichthyans (see Resol. CFP 04/2013 and Resol. CTMFM 09/2013), S. guggenheim biomass has declined by 14 percent (Cortés et al. 2016b). Additionally, abundance has been on a declining trend since the early 2000s (Cortés et al. 2016b). Likely a major contributing factor to these declines is the fact that landings of the species have been higher than estimated replacement captures since 2002 (Cortés et al. 2016b). Also, since 2012, when the CTMFM began setting total permissible catch limits for angelsharks, these maximum catch limits have always been higher than the replacement capture estimates. In fact, most recently, the 2016 annual catch limit set by the CTMFM was 2,600 t despite modeled replacement capture estimates of 1,761 t and 1,765 t (Cortés et al. 2016b). Given the clearly unsustainable fishing levels and inadequacy of existing regulatory measures, the decline in the biomass and the abundance of the species is likely to continue to occur.

    In addition to the biomass and fishing mortality estimates, we received new information regarding the likely effectiveness of the AUCFZ prohibition in 3656 as it pertains to the protection of spiny angelsharks. The Colonello and Massa (2016) study, which was mentioned above in the narrownose smoothhound discussion, also examined the spatial distribution and relative abundance, including life history stages, of the spiny angelshark within and around the 3656 closure. Results confirmed the presence of both sexes and all life history stages of S. guggenheim within the 3656 rectangle; however, the sets that frequently showed the highest densities of spiny angelsharks (greater than 2 t/mn2) occurred north of 36° S. latitude, within the Río de la Plata estuary and territorial waters of Uruguay (Colonello and Massa 2016).

    In contrast, based on landings data from the Argentine commercial fleet, Hozbor and Pérez (2016) suggest that the distribution of the species may be concentrated in and around 3656. Using official fisheries statistics from the Argentine commercial fleet between 2000 and 2015, Hozbor and Pérez (2016) found that the fleet of boats 18-25 m in length mostly operated in the depth stratum where S. guggenheim would occur, whereas the boats <18 m had a more limited area of operation, and the boats >25 m fished in depths greater than 50 m and south of 38° S. latitude, and, therefore, would likely only catch S. argentina. Not surprisingly, the authors found that the fleet of 18-25 m boats represented, on average, about 52 percent of the annual total catch of S. guggenheim over the time period (Hozbor and Pérez 2016). Using the fishery reports from this fleet, the authors examined the distribution of landings of S. guggenheim by statistical rectangle (for example, statistical rectangle 3655 is a rectangle defined by lines drawn from 36° S. latitude to 37° S. latitude and 55° W. longitude to 56° W. longitude). The results showed that the landings from 2000-2015 were greatest in rectangles 3655, 3756, and 3656 (which is the closure area); however, since the 3656 closure has been in effect, landings have decreased in 3656 and increased in the neighboring rectangles including 3556, 3655, and 3756 (Hozbor and Pérez 2016). Additionally, the rectangle covering the Río de la Plata estuary (3555) also showed an increase in landings in recent years to the point where landings from this rectangle are around the same magnitude as those in 3655 and 3756 (Hozbor and Pérez 2016). In other words, similar to the findings from the Colonello and Massa (2016), the data from Hozbor and Pérez (2016) also suggest a potential redistribution of fishing effort around the closed area (3656). For spiny angelsharks, however, this may portend even greater declines in the species as the Colonello and Massa (2016) observed higher abundance of the species north of 36° S. latitude, including in the Río de la Plata estuary, where the data from Hozbor and Pérez (2016) indicate a recent increasing trend in landings of the species, likely due to the redistribution of fishing effort as a result of the 3656 closure. As such, we do not find that existing regulatory measures in the AUCFZ, including the 3656 closure, are adequately decreasing the threat of overutilization to the point where the species is no longer at risk of declines.

    In Uruguay, the proposed rule provided angelshark landings data by Uruguayan fleets operating in the AUCFZ. The proposed rule noted that the proportion of Uruguayan landings compared to Argentinian landings increased to 18.4 percent of the total by 2014 (80 FR 76071; December 7, 2015), as did the number of angelshark landings attributed to Uruguayan vessels (from 26 t in 2012 to 142 t and 158 t in 2013 and 2014, respectively) (80 FR 76095; December 7, 2015). The proposed rule further concluded that this information indicated “a potential increasing trend in the exploitation of the spiny angelshark by Uruguayan fishing vessels” (80 FR 76095). However, based on recent landings data from the Dirección Nacional de Recursos Acuáticos (DINARA) presented to the CTMFM, the Uruguayan proportion may have been overstated in the proposed rule. In 2014, landings for Squatina spp. in the AUCFZ was 158 t by Uruguayan vessels; however, this comprised only 6.9 percent of the total landings of angelsharks from the treaty area. In 2015, Uruguayan vessels landed 104 t of Squatina spp., comprising only 4.4 percent of the total. However, it is worth noting that fishing effort of Uruguayan vessels tends to be concentrated in the Río de la Plata estuary area and the Uruguayan coast north of 36° S. latitude, where, as mentioned above, higher abundance of the species is observed.

    Additionally, as noted in the proposed rule, Squatina spp. are also targeted and caught as bycatch in Uruguayan waters by artisanal longliners and gillnetters. New information on the catch of the species by artisanal fishing vessels was provided in Ligrone et al. (2014) who surveyed 21 artisanal fishermen operating in Uruguay between 2006 and 2009. Ligrone et al. (2014) found that Squatina spp. comprised 11 percent of the total landing weight, with angelsharks mainly caught by large mesh fishing between October and February and concentrated near the ports of La Paloma or Cabo Polonio. While there is a ban on trawling from the coast of Uruguay to 7 nmi offshore, we could find no similar prohibition for other types of gear.

    In Brazilian waters, no new information was found on threats to the species, therefore, our conclusions from the proposed rule remain the same.

    Extinction Risk

    As stated previously, the information received from public comments on the proposed rule was either already considered in our analysis or was not substantial or relevant, and, therefore none of the information affected our extinction risk evaluations of the daggernose shark (I. oxyrhynchus), Brazilian guitarfish (R. horkelii), striped smoothhound shark (M. fasciatus), and Argentine angelshark (S. argentina). Therefore, all of the information contained in the status review reports and proposed rule on the extinction risk of these four elasmobranch species is reaffirmed in this final action. Below, we provide a discussion of how the new information received since publication of the final rule has affected our extinction risk analyses for narrownose smoothhound and spiny angelshark.

    Narrownose Smoothhound Shark

    We find that the best available information, including the information from the proposed rule as well as the new information received, indicates that M. schmitti currently faces a moderate risk of extinction. While there is conflicting evidence regarding the previously reported chronological decline in mean size of maturity, and recent evidence that the declining trend in the AUCFZ population of narrownose smoothhounds has slowed or potentially halted, we note that regulatory measures are not currently adequate to protect the species from overutilization. While landings of the species within the AUCFZ have remained close to or below replacement capture estimates in recent years, the annual catch limits have consistently been set too high, and, if met by fishermen, would result in a continual decline in the species through the foreseeable future.

    Additionally, current closures to protect the population of the species within the AUCFZ may not be adequate to significantly decrease its overall risk of extinction, particularly when the Provincial section of the 3656 closure is open to fishing. As was demonstrated in the study by Colonello and Massa (2016), the highest concentrations of juveniles and reproductively active adults were observed in shallow areas, including within the Provincial section of 3656, during the spring surveys in November and December, a time when fishing is allowed within the Provincial area. Also, the redistribution of fishing effort during the closure to neighboring areas, including the Provincial area, suggests that fishermen are likely targeting the species as it moves out of the closure, thus decreasing the effectiveness of the closure in protecting the species during important reproductive events.

    Overall, while we find that there is still considerable uncertainty regarding the species' current abundance throughout its entire range, the best available information indicates that the species has likely experienced population declines of significant magnitude since the 1980s due to overutilization, including a 36-47 percent decline in biomass within the AUCFZ and an 85 percent decline in abundance in waters off Brazil, with the possible extirpation of a local breeding population. The species continues to be heavily exploited throughout its range, both targeted and caught as bycatch, and we find that existing regulatory measures are inadequate to prevent further declines in the species throughout the foreseeable future.

    Spiny Angelshark

    We find that the best available information, including the information from the proposed rule as well as the new information received, indicates that S. guggenheim currently faces a high risk of extinction. The primary threat to S. guggenheim is overutilization in artisanal and commercial fisheries. In Argentina, S. guggenheim biomass has declined by 77 to 81 percent since the 1980s and, despite management measures that include annual catch limits and trawling prohibitions, biomass continues to decline. Additionally, abundance has been on a declining trend since the early 2000s, with current fishing mortality rates 65 percent higher than what would attain maximum sustainable yield. Existing regulatory mechanisms are likely inadequate to prevent further declines in the abundance of the species, considering that annual catch limits are currently set too high to achieve a stable biomass and the 3656 closure does not appear to coincide with the areas of highest S. guggenheim density within the AUCFZ. Additionally, a result of the 3656 closure has been a redistribution of fishing effort into areas of the AUCFZ where S. guggenheim occurs more frequently, thereby increasing the number of fishery-related mortalities for the species (as demonstrated by recent landings data). While the proposed rule stated that “While the Brazilian populations have experienced substantial declines and remain at risk from overutilization by fisheries, the same cannot be concluded with certainty for the populations farther south in the species' range” (80 FR 76099; December 7, 2015) we find this no longer to be accurate. Based on the new information above, we find that the species is experiencing substantial declines and remains at risk from overutilization by fisheries throughout its range. Given the significant demographic risks to the species (e.g., extremely low fecundity, declining population growth rate, and limited connectivity), we find that the continued decline in the species' abundance as a result of overutilization, with evidence of continued and heavy fishing pressure on the species throughout its entire range, and the inadequacy of existing regulatory measures to protect the species from this threat, are significantly compromising the long-term viability of the species and placing its persistence into question.

    Protective Efforts

    Finally, we considered conservation efforts to protect each species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species' status is improved. None of the comments we received since publication of the proposed rule provided any new, relevant or substantial information regarding conservation efforts to protect the six elasmobranch species. Thus, all of the information, discussion, and conclusions on the protective efforts for the six elasmobranch species contained in the status review reports and proposed rule are reaffirmed in this final action.

    Final Determination

    We have reviewed the best available scientific and commercial information, including the petition, the information in the status review reports (Casselbury and Carlson 2015 a-f), the comments of peer reviewers, public comments, and information that has become available since the publication of the proposed rule (80 FR 76067; December 7, 2015). Based on the best available scientific and commercial information, and after considering efforts being made to protect each of these species, we find that the daggernose shark, Brazilian guitarfish, striped smoothhound shark, spiny angelshark, and Argentine angelshark are in danger of extinction throughout their respective ranges. We have also determined that the narrownose smoothhound is not currently in danger of extinction, but likely to become so in the foreseeable future throughout its range.

    As none of the information received since publication of the proposed rule provided any new, relevant or substantial information that changed our analyses or conclusions that led to our determinations for the daggernose shark, Brazilian guitarfish, striped smoothhound shark, and Argentine angelshark, the determinations in the proposed rule for these species (80 FR 76067; December 7, 2015) are reaffirmed in this final rule. For the spiny angelshark and narrownose smoothhound shark, we provide a summary of our final listing determinations for these species based on the new information considered and analyzed in this final rule as well as information discussed in the proposed rule (80 FR 76067; December 7, 2015).

    We have determined that the spiny angelshark is presently in danger of extinction from threats of overutilization and the inadequacy of existing regulatory mechanisms (see the discussion and analysis within this final rule as well as the proposed rule for further information). Factors supporting this conclusion include: (1) Significantly reduced abundance and biomass (e.g. declines in CPUE of up to 58 percent in Argentina, biomass declines of 77-81 percent in the AUCFZ, and 85 percent decline in Brazilian populations); (2) declining population trends (e.g., in the AUCFZ, abundance has been on a declining trend since the early 2000s, with current fishing mortality rates 65 percent higher than what would attain maximum sustainable yield; in Brazil, annual rate of population decline was estimated at 16 percent in the mid-1990s); (3) high susceptibility to overfishing and vulnerability to depletion given the species' present demographic risks (e.g., extremely low fecundity, low abundance and declining population trends, and limited connectivity); (4) heavily fished both historically and currently, with fleets that operate year-round, including during the sharks' reproductive season migrations, hence capturing all life stages of spiny angelsharks and contributing to the decline and overutilization of the species throughout its range; and (5) current regulations that are inadequate to protect the species from further overutilization throughout its range (e.g., annual catch limits that are currently set too high to achieve a stable biomass and fishery area closures that do not appear to coincide with the areas of highest S. guggenheim density).

    The spiny angelshark has suffered significant population declines throughout its range due to overutilization in industrial and artisanal fisheries. The decline and subsequent rarity of the spiny angelshark in an area that comprises around half of its range (i.e., off Brazil), combined with the declines in biomass of up to 81 percent in the AUCFZ, its significant demographic risks, and evidence of continued and heavy fishing pressure on the species throughout its range, make the spiny angelshark particularly susceptible to increased local extirpations and place it at immediate risk of extinction from environmental and anthropogenic perturbations or catastrophic events. Additionally, with no indication that abundance trends have stabilized or reversed in recent years, and evidence that existing regulatory measures are inadequate to alter this trend, this species will continue to suffer from fishery-related mortality throughout its range and remain in danger of extinction. Therefore, we are listing the spiny angelshark as endangered under the ESA.

    We have determined that the narrownose smoothhound shark is not presently in danger of extinction throughout its range, but likely to become so in the foreseeable future from threats of overutilization and the inadequacy of existing regulatory mechanisms (see the discussion and analysis within this final rule as well as the proposed rule for further information). Factors supporting this conclusion include: (1) Moderate declines in abundance (e.g., most abundant houndshark in the Argentine Sea yet declines in biomass of 36-47 percent in AUCFZ, 85 percent decline in a Brazilian winter migrant population and potential extirpation of local population); (2) potential stabilization of biomass in AUCFZ (based on recent stock assessment data); (3) moderate susceptibility to overfishing and vulnerability to depletion given the species' present demographic risks (e.g., relatively high intrinsic rate of population increase and ability to withstand moderate levels of exploitation of up to 10 percent of the total population); (4) heavily exploited throughout its range (considered the most important elasmobranch in Argentine fisheries, making up 9-12 percent of the total landings from coastal fleets; target of artisanal gillnet fisheries); (5) decreases in average size of landed sharks (observed by the late 1990s and early 2000s); and (6) current regulations that are inadequate to protect the species from overutilization and further decline throughout its range (e.g., annual catch limits that are currently set too high to achieve a stable biomass and fishery area closures that may not protect the species from fishery-related mortality).

    The species has experienced population declines of varying magnitude throughout its range. Although the species' relatively high intrinsic rate of population increase and ability to withstand moderate levels of exploitation up to 10 percent of the total population provides the narrownose smoothhound shark with some protection from extinction, and is likely the reason why the species remains the most abundant houndshark in the Argentine Sea, the decreases in populations (particularly off Brazil) and average size of the species suggest it is being exploited at a level exceeding what it can sustain. While biomass may currently be stable in the AUCFZ, this does not appear to be a result of adequate existing regulatory measures as annual catch limits have consistently been set too high in the fishery. In fact, if these catch limits are actually met by fishermen, it would result in a continual decline in the species through the future. Therefore, while the species is not presently in danger of extinction, we find that it is likely to become so within the foreseeable future as it has already suffered declines in abundance from historical overutilization, continues to be heavily exploited throughout its range, and lacks adequate protection from these threats. Therefore, we are listing the narrownose smoothhound shark as threatened under the ESA.

    Because we find that all six species are either in danger of extinction or likely to become so within the foreseeable future throughout all of their ranges, there is no need to evaluate any of the species' status in any portion of their range.

    Effects of Listing

    Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions are not likely to jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking and certain other activities (16 U.S.C. 1538, 1533(d)). In addition, recognition of the species' imperiled status through listing promotes conservation actions by Federal and State agencies, foreign entities, private groups, and individuals.

    Identifying Section 7 Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations (50 CFR part 402) require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions.

    Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)).

    The best available scientific and commercial data as discussed above identify the geographical areas occupied by I. oxyrhynchus, R. horkelii, M. fasciatus, M. schmitti, S. guggenheim, and S. argentina as being entirely outside U.S. jurisdiction, so we cannot designate occupied critical habitat for these species. We can designate critical habitat in areas in the United States that are unoccupied by the species if the area(s) are determined to be essential for the conservation of the species. The best available scientific and commercial information on these species does not indicate that U.S. waters provide any specific essential biological function for any of these species. Therefore, based on the best available information, we do not intend to designate critical habitat for I. oxyrhynchus, R. horkelii, M. fasciatus, M. schmitti, S. guggenheim, and S. argentina.

    ESA Section 9 and 4(d) Prohibitions

    Because we are listing I. oxyrhynchus, R. horkelii, M. fasciatus, S. guggenheim, and S. argentina as endangered, all of the prohibitions of section 9(a)(1) of the ESA will apply to these species. These include prohibitions against the import and export of any endangered species; the sale and offering for sale of such species in interstate or foreign commerce; the delivery, receipt, carriage, transport, or shipment of such species in interstate or foreign commerce and in the course of a commercial activity; and the “take” of these species within the U.S., within the U.S. territorial seas, or on the high seas. Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” These prohibitions apply to all persons subject to the jurisdiction of the United States.

    In the case of threatened species, ESA section 4(d) requires the Secretary to issue regulations deemed necessary and advisable for the conservation of the species. We have evaluated the needs of and threats to the narrownose smoothhound shark and have determined that protective regulations pursuant to section 4(d) are not currently necessary and advisable for the conservation of the species. The main threats identified for the species are overutilization and inadequate existing regulatory mechanisms. The threat of overutilization is primarily a result of heavy fishing pressure by foreign industrial, commercial and artisanal fisheries. Because the narrownose smoothhound occurs entirely outside of the United States, is not targeted or caught by U.S. fishermen, or threatened by commercial trade with the United States, extending the section 9(a) prohibitions to this species will not result in added conservation benefits or species protection. Therefore, we do not intend to issue section 4(d) regulations for the narrownose smoothhound shark.

    Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA.

    The intent of this policy is to increase public awareness of the effects of this listing on proposed and ongoing activities within the species' ranges. Activities that we believe could (subject to the exemptions set forth in 16 U.S.C. 1539) result in a violation of section 9 prohibitions for the five endangered species include, but are not limited to, the following:

    (1) Possessing, delivering, transporting, or shipping any individual, part (dead or alive), or product taken in violation of section 9(a)(1);

    (2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual, part, or product in the course of a commercial activity;

    (3) Selling or offering for sale in interstate or foreign commerce any individual, part, or product except antique articles at least 100 years old; and

    (4) Importing or exporting these species or any part or product of these species.

    We emphasize that whether a violation results from a particular activity is entirely dependent upon the facts and circumstances of each incident. Further, an activity not listed may in fact constitute or result in a violation.

    Identification of Those Activities That Would Not Likely Constitute a Violation of Section 9 of the ESA

    Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9: (1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species; and (2) continued possession of parts and products that were in possession at the time of listing. Such parts and products may be non-commercially exported or imported; however the importer or exporter must be able to provide evidence to show that the parts or products meet the criteria of ESA section 9(b)(1) (i.e., held in a controlled environment at the time of listing, in a non-commercial activity).

    References

    A complete list of the references used in this final rule is available upon request (see ADDRESSES).

    Classification National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).

    Executive Order 12866, Regulatory Flexibility Act, and Paperwork Reduction Act

    As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

    Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required.

    List of Subjects 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Transportation.

    50 CFR Part 224

    Endangered and threatened species.

    Dated: May 4, 2017. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223 and 224 are amended as follows:

    PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: Authority:

    16 U.S.C. 1531-1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).

    2. In § 223.102, amend the table in paragraph (e) by adding a new entry for “Shark, narrownose smoothhound” in alphabetical order by common name under the “Fishes” table subheading to read as follows:
    § 223.102 Enumeration of threatened marine and anadromous species.

    (e) The threatened species under the jurisdiction of the Secretary of Commerce are:

    Species 1 Common name Scientific name Description of listed entity Citation(s) for listing determination(s) Critical
  • habitat
  • ESA
  • rules
  • *         *         *         *         *         *         * Fishes *         *         *         *         *         *         * Shark, narrownose smoothhound Mustelus schmitti Entire species [Insert Federal Register page where the document begins], May 10, 2017 NA NA *         *         *         *         *         *         * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).
    PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 3. The authority citation for part 224 continues to read as follows: Authority:

    16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    4. In § 224.101, paragraph (h), amend the table by adding new entries for five species in alphabetical order by common name under the “Fishes” table subheading to read as follows:
    § 224.101 Enumeration of endangered marine and anadromous species.

    (h) The endangered species under the jurisdiction of the Secretary of Commerce are:

    Species 1 Common name Scientific name Description of listed entity Citation(s) for listing determination(s) Critical
  • habitat
  • ESA
  • rules
  • *         *         *         *         *         *         * Fishes Angelshark, Argentine Squatina argentina Entire species [Insert Federal Register page where the document begins], May 10, 2017 NA NA *         *         *         *         *         *         * Angelshark, spiny Squatina guggenheim Entire species [Insert Federal Register page where the document begins], May 10, 2017 NA NA *         *         *         *         *         *         * Guitarfish, Brazilian Rhinobatos horkelii Entire species [Insert Federal Register page where the document begins], May 10, 2017 NA NA *         *         *         *         *         *         * Shark, daggernose Isogomphodon oxyrhynchus Entire species [Insert Federal Register page where the document begins], May 10, 2017 NA NA *         *         *         *         *         *         * Shark, striped smoothhound Mustelus fasciatus Entire species [Insert Federal Register page where the document begins], May 10, 2017 NA NA *         *         *         *         *         *         * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).
    [FR Doc. 2017-09416 Filed 5-9-17; 8:45 am] BILLING CODE 3510-22-P
    82 89 Wednesday, May 10, 2017 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Document Number AMS-NOP-17-0031; NOP-15-06A] RIN 0581-AD74 National Organic Program (NOP); Organic Livestock and Poultry Practices Second Proposed Rule AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule sets forth the U.S. Department of Agriculture's (USDA) intention to pursue one of several actions on the Organic Livestock and Poultry Practices Final Rule (FR) published in the Federal Register on January 19, 2017, by USDA's Agricultural Marketing Service (AMS). USDA is asking the public to comment on the possible actions USDA should take in regards to the disposition of the FR. The FR amends the organic livestock and poultry production requirements in the USDA organic regulations by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions. The FR was originally set to take effect on March 20, 2017, and is now being extended to November 14, 2017.

    DATES:

    Interested persons are invited to submit written comments on this proposed rule on or before June 9, 2017.

    ADDRESSES:

    We invite you to submit comments on the proposed rule by any of the following methods:

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

    Mail: Paul Lewis Ph.D., Director, Standards Division, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2642-So., Ag Stop 0268, Washington, DC 20250-0268.

    Instructions: All submissions received must include the docket number AMS-NOP-17-0031; NOP-15-06A, and/or Regulatory Information Number (RIN) 0581-AD74 for this rulemaking. Your comments should clearly indicate whether or not you support an option presented in this proposed rule. You should clearly indicate the reason(s) for the stated position. All comments received and any relevant background documents will be posted without change to http://www.regulations.gov.

    Document: For access to the document and to read background documents or comments received, go to http://www.regulations.gov. Comments submitted in response to this proposed rule will also be available for viewing in person at USDA-AMS, National Organic Program, Room 2642-South Building, 1400 Independence Ave. SW., Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday (except official Federal holidays). Persons wanting to visit the USDA South Building to view comments received in response to this proposed rule are requested to make an appointment in advance by calling (202) 720-3252.

    FOR FURTHER INFORMATION CONTACT:

    Paul Lewis, Ph.D., Director, Standards Division, Telephone: (202) 702-3252; Fax: (202) 720-7808.

    SUPPLEMENTARY INFORMATION:

    Background

    Consistent with the memorandum of January 20, 2017, to the heads of executive departments and agencies from the Assistant to the President and Chief of Staff entitled “Regulatory Freeze Pending Review,” AMS published in the Federal Register [82 FR 9967] a notice that delayed the effective date of the FR until May 19, 2017. Along with this proposed rule, AMS is also publishing a Notice in the Federal Register that further delays the effective date of the FR until November 14, 2017.

    The FR amends the organic livestock and poultry production requirements of the USDA organic regulations by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions. The FR finalizes a proposed rule that AMS published in the Federal Register on April 13, 2016, 81 FR 21955.

    Actions Being Considered

    Because there are significant policy and legal issues addressed within the FR that warrant further review by USDA, the public is being asked to comment on which of the following four actions they believe would be best for USDA to take with regard to the disposition of the FR. Specifically, the public should submit their comments on the following options:

    (1) Let the rule become effective. This means that the rule would become effective on November 14, 2017.

    (2) Suspend the rule indefinitely. During the suspension, USDA could consider whether to implement, modify or withdraw the final rule.

    (3) Delay the effective date of the rule further, beyond the effective date of November 14, 2017.

    (4) Withdraw the rule so that USDA would not pursue implementation of the rule.

    Notice Delaying IFR Effective Date

    Concurrent with this proposed rule, AMS is publishing in the Federal Register a notice extending the effective date of the FR by 180 days until November 14, 2017.

    Dated: May 4, 2017. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2017-09410 Filed 5-9-17; 8:45 a.m.] BILLING CODE 3410-02-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-1067] RIN 1625-AA00 Safety Zone; Hurricanes and Other Disasters in South Florida AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a safety zone within the Sector Miami Captain of the Port Zone. This action is necessary to provide for the safety of persons and vessels in the event of reduced or restricted visibility due to hurricanes and other disasters. This action is intended to restrict port operations in the event of hurricanes and other disasters. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before June 9, 2017.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-1067 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Petty Officer Mara Brown, Sector Miami Waterways Management Division, U.S. Coast Guard; telephone 305-535-4317, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    The Captain of the Port Miami (COTP) has determined that the hazards associated with the reduced or restricted visibility which can occur during hurricanes and other disasters constitute a safety concern for anyone within the proposed safety zone. The purpose of the proposed rule is to ensure the safety of life on navigable waters of the United States by restricting port operations in the event of severe weather conditions or disasters, including hurricanes.

    III. Discussion of Proposed Rule

    The Coast Guard proposes to establish a safety zone on the navigable waters of the Sector Miami COTP zone during disasters and other specified severe weather conditions. This proposed rule would restrict port operations and vessel traffic during disasters and severe weather, to include hurricanes, when certain port conditions are set by the COTP. The proposed rule would give the COTP flexibility in controlling and reconstituting vessel traffic during periods of heavy weather and allows for expediting resumption of the Maritime Transportation System following disasters and severe weather.

    Hurricane Port Conditions (WHISKEY, X-RAY, YANKEE, and ZULU) are standardized states of operation instituted by the COTP and shared with all major ports, facilities, and members of the Maritime Transportation System. The intermodal and dynamic nature of the Maritime Transportation System requires all parties to comply with safety and security procedures when faced with the challenges of hurricanes and other disasters.

    Notice of Hurricane Port Conditions and their requirements will be given via Marine Safety Information Bulletins, online at http://homeport.uscg.mil/miami, Broadcast Notice to Mariners, and Severe Weather Advisory Team meetings.

    The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

    The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See the OMB Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

    We expect the economic impact of this proposed rule to be not significant for the following reasons: (1) Vessel traffic and facilities will be impacted by this rule only during limited times while heavy weather is expected to impact the Sector Miami Captain of the Port Zone; (2) vessel traffic would be secured only during port conditions Yankee and Zulu, and only in port areas potentially affected by gale force winds; and (3) the Coast Guard would issue updates on http://homeport.uscg.mil/miami, VHF channel 16, and during Severe Weather Advisory Team meetings.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on a substantial number of small entities.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

    Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves safety zones implemented during hurricanes or other heavy weather events. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary Record of Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.785 to read as follows:
    § 165.785 Safety Zone; Hurricanes and Other Disasters in South Florida.

    (a) Regulated Areas. All navigable waters, as defined in 33 CFR 2.36, within the Captain of the Port Zone, Miami Florida, as described in 33 CFR 3.35-10, during specified conditions.

    (b) Definitions. (1) The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Miami, in the enforcement of the regulated areas.

    (2) Port Condition WHISKEY means condition set by the Captain of the Port when weather advisories indicate sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 72 hours.

    (3) Port Condition X-RAY means condition set by the Captain of the Port when weather advisories indicate sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 48 hours.

    (4) Port Condition YANKEE means condition set by the Captain of the Port when weather advisories indicate that sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 24 hours.

    (5) Port Condition ZULU means condition set by the Captain of the Port when weather advisories indicate that sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 12 hours.

    (c) Regulations.—(1) Port Condition WHISKEY. All vessel and port facilities must exercise due diligence in preparation for potential storm impacts. Slow-moving vessels may be ordered to depart to ensure safe avoidance of the incoming storm upon the anticipation of the setting of Port Condition X-RAY. Ports and waterfront facilities shall begin removing all debris and securing potential flying hazards. Container stacking plans shall be implemented. Waterfront facilities that are unable to reduce container stacking height to no more than four high must submit a container stacking protocol to the Captain of the Port (COTP).

    (2) Port Condition X-RAY. All vessels and port facilities shall ensure that potential flying debris is removed or secured. Hazardous materials/pollution hazards must be secured in a safe manner and away from waterfront areas. Facilities shall continue to implement container stacking protocol. Containers must not exceed four tiers, unless previously approved by the COTP. Containers carrying hazardous materials may not be stacked above the second tier. All oceangoing commercial vessels greater than 500-gross tons must prepare to depart ports and anchorages within the affected regulated area. These vessels shall depart immediately upon the setting of Port Condition YANKEE. During this condition, slow-moving vessels may be ordered to depart to ensure safe avoidance of the incoming storm. Vessels that are unable to depart the port must contact the COTP to request and receive permission to remain in port. Vessels with COTP's permission to remain in port must implement their pre-approved mooring arrangement. Terminal operators shall prepare to terminate all cargo operations. The COTP may require additional precautions to ensure the safety of the ports and waterways.

    (3) Port Condition YANKEE. Affected ports are closed to inbound vessel traffic. All oceangoing commercial vessels greater than 500-gross tons must have departed designated ports within the Sector Miami Captain of the Port Zone. Appropriate container stacking protocol must be completed. Terminal operators must terminate all cargo operations not associated with storm preparations: Cargo operations associated with storm preparations include moving cargo within or off the port for securing purposes, crane and other port/facility equipment preparations, and similar activities, but do not include moving cargo onto the port or vessel loading/discharging operations unless specifically authorized by the COTP. All facilities shall continue to operate in accordance with approved Facility Security Plans and comply with the requirements of the Maritime Transportation Security Act (MTSA).

    (4) Port Condition ZULU. All port waterfront operations are suspended, except final preparations that are expressly permitted by the COTP as necessary to ensure the safety of the ports and facilities. Coast Guard Port Assessment Teams will conduct final port assessments.

    (5) Emergency Restrictions for Other Disasters. Any natural or other disasters that are anticipated to affect the Sector Miami Captain of the Port zone will result in the prohibition of commercial vessel traffic transiting or remaining in the port or facility operations.

    Dated: April 11, 2017. J.H. D. Solomon, Captain, U.S. Coast Guard, Acting Captain of the Port Miami.
    [FR Doc. 2017-09476 Filed 5-9-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2017-0275] RIN 1625-AA00 Safety Zone; Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary safety zone for certain waters of the Buffalo River. This action is necessary to provide for the safety of life on these navigable waters near Buffalo River Works, Buffalo, NY, during the Hope Chest Buffalo Niagara Dragon Boat Festival on June 17, 2017, which includes boat races. This proposed rulemaking would prohibit persons and vessels from passing through the safety zone during race heats unless authorized by the Captain of the Port Buffalo or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before May 30, 2017.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2017-0275 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email LT Michael Collet, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On December 08, 2016, the Hope Chest Buffalo (Lumanina Crop) notified the Coast Guard that it will be conducting a series of dragon boat races from 8 a.m. to 5 p.m. on June 17, 2017. The dragon boat races are to take place in the Buffalo River behind the Buffalo River Works restaurant in a 300 meter long course consisting of 4 lanes, each 10 meters wide in Buffalo, NY. The Captain of the Port Buffalo (COTP) has determined that a boating race event on a navigable waterway will pose a significant risk to participants and the boating public.

    The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the race course during heats of the scheduled event. Vessel traffic will be allowed to pass through the safety zone between heats. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP proposes to establish a safety zone from 7:45 a.m. to 5:15 p.m. on June 17, 2017, that would be effective and enforced intermittently. The safety zone would cover all navigable waters of the Buffalo River; Buffalo, NY starting at position 42° 52′ 12.60″ N. and 078° 52′ 17.64″ W. then Southeast to 42° 52′ 3.17″ N. and 078° 52′ 12.43″ W. then East to 42° 52′ 3.68″ N. and 078° 52′ 10.35″ W. then Northwest to 42° 52′ 13.41″ N. and 078° 52' 16.57″ W. then returning to the point of origin. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 8 a.m. to 5 p.m. racing event. Vessels will be permitted to pass through the safety zone intermittently during the event as allowed by the COTP or the on-scene representative. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

    This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

    As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit through this safety zone in between race heats which would impact a small designated area of the Buffalo River for one day. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

    Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone for one day during intermittent periods. Normally such actions are categorically excluded from further review under section 2.B.2, and Figure 2-1, paragraph 34(g) of the Instruction. Paragraph 24(g) pertains to the establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. A preliminary Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T09-0275 to read as follows:
    § 165.T09-0275 Safety Zone; Hope Chest Buffalo Niagara Dragon Boat Festival, Buffalo River, Buffalo, NY

    (a) Location. This zone will cover all navigable waters of the Buffalo River; Buffalo, NY starting at position 42°52′12.60″ N. and 078°52′17.64″ W. then Southeast to 42°52′3.17″ N. and 078°52′12.43″ W. then East to 42°52′3.68″ N. and 078°52′10.35″ W. then Northwest to 42°52′13.41″ N. and 078°52′16.57″ W. then returning to the point of origin.

    (b) Enforcement Period. This regulation will be enforced intermittently on June 17, 2017 from 7:45 a.m. until 5:15 p.m.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative.

    (2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.

    (3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.

    (4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.

    Dated: May 4, 2017. J.S. Dufresne, Captain, U.S. Coast Guard, Captain of the Port Buffalo.
    [FR Doc. 2017-09483 Filed 5-9-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AO15 Use of Medicare Procedures To Enter Into Provider Agreements for Extended Care Services AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Withdrawal of proposed rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) published a notice of proposed rulemaking in the Federal Register on February 13, 2013, that proposed amending its regulations to allow VA to enter into provider agreements to obtain extended care services for Veterans from community providers. Since publication of that proposed rule, further review has led VA to conclude VA cannot achieve the proposal's goals without a statutory change. For this reason, VA withdraws the proposed rule.

    DATES:

    This proposed rule is withdrawn as of May 10, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Daniel Schoeps, Office of Geriatrics and Extended Care (10P4G), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; (202) 461-6763 (this is not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    VA published a notice of proposed rulemaking in the Federal Register on February 13, 2013, that proposed to allow VA to enter into provider agreements to obtain extended care services for Veterans from community providers under 38 U.S.C. 1720(c)(1) (see 78 FR 10117). Since publication of that proposed rule, further review has led VA to conclude the goals of this regulation cannot be achieved without a statutory change. For this reason, VA withdraws the proposed rule. VA has proposed and continues to support legislation that would authorize VA to use provider agreements to purchase care in the community.

    After publication of the proposed rule, section 101 of the Veterans Access, Choice, and Accountability Act of 2014 (Pub. L. 113-146, 128 Stat.1754, hereafter referred to as “the Choice Act”) created the Veterans Choice Program, which provides legal authority for VA to enter into provider agreements to obtain certain extended care services for Veterans. The Veterans Choice Program also has regulations, at 38 CFR 17.1500, et seq., that are currently operational and have criteria similar to those in the proposed rule AO15, including eligibility standards for non-VA providers and standards for payment rates.

    Although the Choice Act provider agreements are similar in kind, and might seem to provide the same authority, they do not. Proposed AO15 would have authorized the use of provider agreements to provide “extended care services,” defined as “geriatric evaluation; nursing home care; domiciliary services; adult day-health care; noninstitutional palliative care, noninstitutional hospice care, and home health care when they are noninstitutional alternatives to nursing home care; and respite care” (see 70 FR 10121 (Feb. 13, 2013)). Although the Choice Act provides clear legal authority for VA to enter into provider agreements, the authority is limited to care authorized under the Veterans Choice Program for eligible Veterans and furnished by Choice-eligible providers. Further, the Veterans Choice Program covers only hospital care and medical services in VA's medical benefits package (see 38 CFR 17.38); this captures some extended care services (noninstitutional alternatives to nursing home care like adult day-health care and respite care) but not the full scope of services proposed AO15 would have covered. Finally, the Veterans Choice Program will expire when the Choice Fund, established under section 802 of the Choice Act, has been exhausted. VA will continue to use provider agreements authorized by the Choice Act until the Veterans Choice Program expires, but to accomplish the goals of the proposed rule, Congress would need to enact a provider agreement provision authorizing VA to use provider agreements to purchase care in the community. For these reasons, VA withdraws the proposed rule.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on May 4, 2017, for publication.

    List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Government programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.

    Dated: May 5, 2017. Janet Coleman, Chief, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.
    [FR Doc. 2017-09449 Filed 5-9-17; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0645 FRL-9962-10-Region 5] Air Plan Approval; Indiana; Commissioner's Orders for SABIC Innovative Plastics AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve as a revision to the Indiana State Implementation Plan (SIP) a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 5, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO2) emission limits for SABIC Innovative Plastics (SABIC). IDEM submitted this order so the area near SABIC can be designated “attainment” of the 2010 primary SO2 National Ambient Air Quality Standards, a matter that will be addressed in a separate future rulemaking. EPA's approval of this order would make these SO2 emission limits and applicable reporting, recordkeeping, and compliance demonstration requirements part of the federally enforceable Indiana SIP.

    DATES:

    Comments must be received on or before June 9, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0645 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, 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, 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:

    Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

    Dated: April 20, 2017. Robert A. Kaplan, Acting Regional Administrator, Region 5.
    [FR Doc. 2017-09383 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0707; FRL-9962-08-Region 5] Air Plan Approval; Indiana; Commissioner's Order for Carmeuse Lime, Inc. AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve, as a revision to the Indiana State Implementation Plan (SIP), a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 22, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO2) emission limits for Carmeuse Lime, Inc. (Carmeuse), applicable to its Gary, Indiana lime manufacturing plant. IDEM submitted this order so the area near Carmeuse can be designated “attainment” of the 2010 primary SO2 National Ambient Air Quality Standards, a matter that will be addressed in a separate future rulemaking. EPA's approval of this order would make these SO2 emission limits and applicable reporting, recordkeeping, and compliance demonstration requirements part of the federally enforceable Indiana SIP.

    DATES:

    Comments must be received on or before June 9, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0707 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, 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, 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:

    Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

    Dated: April 21, 2017. Robert A. Kaplan, Acting Regional Administrator, Region 5.
    [FR Doc. 2017-09381 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2017-0013; FRL-9960-68-Region 2] Approval and Revision of Air Quality Implementation Plans; State of New York; Regional Haze State and Federal Implementation Plans AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve a source-specific revision to the New York State Implementation Plan (SIP). This revision consists of a Best Available Retrofit Technology (BART) determination for the Danskammer Generating Station Unit 4. The SIP revision establishes emission limits for sulfur dioxide, oxides of nitrogen, and particulate matter that are identical to those set by the EPA's Federal Implementation Plan (FIP) for Danskammer Unit 4, which was promulgated in an action taken on August 28, 2012. The SIP revision also restricts Danskammer Unit 4 to combusting only natural gas. The EPA proposes to find that the SIP revision fulfills the requirements of the Clean Air Act and the EPA's Regional Haze Rule for BART at Danskammer Unit 4. In conjunction with this proposed approval, we propose to withdraw those portions of the FIP that address BART for Danskammer Unit 4.

    DATES:

    Comments must be received on or before June 9, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R02-OAR-2017-0013 to http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit 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, 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:

    Edward J. Linky, Environmental Protection Agency, Air Programs Branch, 290 Broadway, New York, New York 1007-1866 at 212-637-3764 or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. What action is the EPA proposing? II. What is the background information for this proposal? A. SIP and FIP Background B. Regional Haze Background C. EPA Action on New York's Regional Haze Submittals III. What is included in the NYSDEC SIP proposal? IV. What is the EPA's analysis of NYSDEC's submittal? V. Statutory and Executive Order Reviews

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

    I. What action is the EPA proposing?

    The EPA is proposing to approve a source-specific State Implementation Plan (SIP) revision for Unit 4 at the Danskammer Generating Station submitted by the New York State Department of Environmental Conservation (NYSDEC) on August 10, 2015, and supplemented by NYSDEC on August 5, 2016.1 Specifically, the EPA is proposing to approve emission limits for sulfur dioxide (SO2), oxides of nitrogen (NOX), and particulate matter (PM) for Unit 4 at the Danskammer Generating Station that are equivalent to the emission limits established by the EPA's Federal Implementation Plan (FIP) that was promulgated on August 28, 2012 (77 FR 51915, 51928). The EPA is also proposing to approve a condition in the SIP revision that restricts Danskammer Unit 4 to combusting only natural gas.

    1 NYSDEC's August 10, 2015, submittal also included SIP revisions for LaFarge Building Materials and Rockville Centre Power Plant which we intend to act on separately.

    II. What is the background information for this proposal?

    This section provides a brief overview of the requirements of the Clean Air Act (CAA) and Regional Haze Rule that apply to this particular action. Please refer to our previous rulemakings on the New York Regional Haze SIP for additional background regarding the visibility protection provisions of the CAA and the Regional Haze Rule.2

    2 77 FR 24794 (April 25, 2012) (proposed rule); 77 FR 27162 (May 9, 2012) (Notice of Data Availability); 77 FR 51915 (Aug. 28, 2012) (final rule).

    A. SIP and FIP Background

    The CAA requires each state to develop plans to meet various air quality requirements, including protection of visibility. (CAA sections 110(a), 169A, and 169B). The plans developed by a state are referred to as SIPs. A state must submit its SIPs and SIP revisions to EPA for approval. Once approved, a SIP is federally enforceable, that is enforceable by the EPA and subject to citizen suits under the CAA. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then EPA must promulgate a FIP to fill this regulatory gap. (CAA section 110(c)(1)).

    B. Regional Haze Background

    In the 1977 Amendments to the CAA, Congress initiated a program for protecting visibility in the nation's national parks and wilderness areas. Section 169A(a)(1) of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” In 1990, Congress added section 169B to the CAA to address regional haze issues. On July 1, 1999, the EPA promulgated the Regional Haze Rule (RHR) (64 FR 35714). The requirement to submit a Regional Haze SIP applies to New York and all 50 states, the District of Columbia, and the Virgin Islands. 40 CFR 51.308(b) of the RHR required states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

    C. EPA Action on New York's Regional Haze Submittals

    The EPA's final action on New York's Regional Haze SIP included approving 17 source-specific SIP revisions containing permits for Best Available Retrofit Technology (BART) and promulgating a FIP to address two sources where EPA disapproved New York's BART determinations—Roseton Generating Station (Units 1 and 2) and the Danskammer Generating Station (Unit 4). 77 FR 51915 (August 28, 2012).

    On August 10, 2015, NYSDEC submitted a request for a source-specific SIP revision for Danskammer Unit 4 which would replace the EPA's FIP. In this action, the EPA proposes to approve the SIP revision and remove Danskammer Unit 4 from the FIP, but this action does not address the Roseton Generating Station still covered by the EPA's FIP.

    III. What is included in the NYSDEC SIP submittal?

    On August 10, 2015, NYSDEC submitted a request for a source-specific SIP revision for Danskammer Unit 4, which would replace the BART emission limits and related requirements in the EPA's FIP that were promulgated in the Federal Register on August 28, 2012 (77 FR 51915). This SIP revision contained Danskammer Unit 4's Title V permit conditions 61-64.

    In a letter to NYSDEC dated July 14, 2016, the EPA requested that NYSDEC supplement its August 10, 2015 SIP submittal. Specifically, the EPA requested that NYSDEC submit Danskammer Unit 4's Title V permit condition 55.6 (at pages 48 and 49 of the permit), which restricts Unit 4 to combusting only natural gas. The EPA also requested that NYSDEC submit a copy of the April 1, 2015 public notice as published in NYSDEC's Environmental Notice Bulletin (ENB).

    In a letter dated August 5, 2016, NYSDEC submitted to the EPA (1) permit condition 55.6 (pages 48 and 49) of Dankskammer Unit 4's Title V permit that was renewed on February 24, 2015, which permits Unit 4 to combust natural gas only and (2) a copy of NYSDEC's April 1, 2015 ENB that noticed the proposed Danskammer SIP revision.

    IV. What is the EPA's analysis of NYSDEC's submittal?

    In its submittal, NYSDEC includes BART emission limits for Danskammer Unit 4 that are identical to those contained in the EPA's FIP: 0.12 pounds NOX per million Btu (lb/MMBtu) calculated on a 24-hour average during the ozone season and on a 30-day average during the rest of the year; 0.09 lb SO2/MMBtu calculated on a 24-hour average; and 0.06 lb PM/MMBtu calculated on a 1-hour average. NYSDEC also includes a condition that restricts Danskammer Unit 4 to combusting only natural gas.

    The EPA is proposing to approve NYSDEC's SIP submittal because it is more stringent than the EPA's FIP. The SIP submittal includes BART emission limits for SO2, NOX, and PM and related administrative requirements (i.e., monitoring, recordkeeping and reporting requirements) that are identical to those in the EPA's FIP. Moreover, the SIP submittal includes a condition that restricts Dankskammer Unit 4 to combusting only natural gas, which will have the effect of further reducing visibility-impairing emissions, particularly SO2 and PM. Consequently, the EPA proposes to withdraw those portions of the FIP that address BART for Danskammer Unit 4. The EPA will fully consider all significant comments on these proposed actions.

    VI. Statutory and Executive Order Reviews

    In reviewing NYSDEC's SIP submittal, the EPA's role is to approve state choices if they meet the requirements 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 Order 12866 (58 FR 51735, October 4, 1993);

    • 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 (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).

    This action does not have tribal implications as specified by Executive Order 13175. The SIP revision submitted by NYSDEC is not approved to apply on any Indian reservation land or in any other areas where the EPA or Tribal Nation has demonstrated that a Nation has jurisdiction. Thus Executive Order 13175 does not apply to this proposed rule.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: March 10, 2017. Catherine R. McCabe, Acting Regional Administrator, Region 2.
    [FR Doc. 2017-09384 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0213; FRL-9961-91-Region 4] Air Plan Approval; Kentucky; Infrastructure Requirements for the 2012 PM2.5 National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the Commonwealth of Kentucky, Energy and Environment Cabinet, Department for Environmental Protection, through the Kentucky Division for Air Quality (KDAQ), on February 8, 2016, to demonstrate that the Commonwealth meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 Annual Particulate Matter (PM2.5) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. KDAQ certified that the Kentucky SIP contains provisions that ensure the 2012 Annual PM2.5 NAAQS is implemented, enforced, and maintained in Kentucky. EPA is proposing to determine that Kentucky's infrastructure submission, submitted on February 8, 2016, addresses certain infrastructure elements for the 2012 Annual PM2.5 NAAQS.

    DATES:

    Written comments must be received on or before June 9, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0213 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:

    Tiereny Bell, Air Regulatory Management Section, 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. Ms. Bell can be reached via electronic mail at [email protected] or the telephone number (404) 562-9088.

    SUPPLEMENTARY INFORMATION: I. Background and Overview

    On December 14, 2012 (78 FR 3086, January 15, 2013), EPA promulgated a revised primary annual PM2.5 NAAQS. The standard was strengthened from 15.0 micrograms per cubic meter (μg/m3) to 12.0 μg/m3. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2012 Annual PM2.5 NAAQS to EPA no later than December 14, 2015.1

    1 In these infrastructure SIP submissions states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Throughout this rulemaking, unless otherwise indicated, the term “401 KAR XX:XXX” indicates that the cited regulation has either been approved, or submitted for approval into Kentucky's federally-approved SIP. The statutes cited from the Kentucky Revised Statutes (also referred to as “KRS”) throughout this rulemaking are not approved into the Kentucky SIP, unless otherwise indicated.

    This rulemaking is proposing to approve portions of Kentucky's PM2.5 infrastructure SIP submission for the applicable requirements of the 2012 Annual PM2.5 NAAQS, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1, 2 and 4), and the minor source program requirements of section 110(a)(2)(C), for which EPA is not proposing any action in this rulemaking regarding these requirements. For the aspects of Kentucky's submittal proposed for approval in this rulemaking, EPA notes that the Agency is not approving any specific rule, but rather proposing that Kentucky's already approved SIP meets certain CAA requirements.

    II. What elements are required under Sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

    More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are summarized below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).” 2

    2 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. This proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

    • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP Revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 3

    3 As mentioned above, this element is not relevant to this proposed rulemaking.

    • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and Prevention of Significant Deterioration (PSD) and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions?

    EPA is acting upon the SIP submission from Kentucky that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2012 Annual PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

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

    Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.4 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

    4 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.5 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.6 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

    5 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162, at 25163—65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    6 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.7 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.8

    7 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    8 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007, submittal.

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.9

    9 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

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

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

    Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.10 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).11 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.12 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

    10 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    11 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    12 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations. On March 17, 2016, EPA released a memorandum titled, “Information on the Interstate Transport `Good Neighbor' Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)” to provide guidance to states for interstate transport requirements specific to the PM2.5 NAAQS.

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

    As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 Annual PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

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

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

    13 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

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

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

    Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.14 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.15 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.16

    14 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    15 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    16 See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).

    IV. What is EPA's analysis of how Kentucky addressed the elements of the Sections 110(a)(1) and (2) “Infrastructure” provisions?

    Kentucky's February 8, 2016 infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.

    1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. These requirements are met through Kentucky Revised Statute (KRS) Chapter 224 Section 10-100 (KRS 224.10-100), which provides the KDAQ the authority to administer all rules, regulations, and orders promulgated under Chapter 224, and to provide for the prevention, abatement, and control of all water, land, and air pollution.

    KDAQ cited to chapters and associated Kentucky Administrative Regulations (KAR) under Title 401 to demonstrate that the Commonwealth meets the requirements of this element, including the following:

    Chapter 50 General Administrative Procedures: 401 KAR 50:010. Definitions for 401 KAR Chapter 50; 401 KAR 50:012. General application; 401 KAR 50:015. Documents incorporated by reference; 401 KAR 50:020. Air quality control regions; 401 KAR 50:025. Classification of counties; 401 KAR 50:040. Air quality models; 401 KAR 50:042. Good engineering practice stack height; 401 KAR 50:045. Performance tests; 401 KAR 50:047. Test procedures for capture efficiency; 401 KAR 50:050. Monitoring; 401 KAR 50:055. General compliance requirements; and 401 KAR 50:060. Enforcement.

    Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards: 401 KAR 51:001. Definitions for 401 KAR Chapter 51; 401 KAR 51:005. Purpose and General Provisions; 401 KAR 51:010. Attainment Status Designations; 401 KAR 51:017. Prevention of significant deterioration of air quality; 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas.

    Chapter 52 Permits, Registrations, and Prohibitory Rules: 401 KAR 52:001. Definitions for 401 KAR Chapter 52; 401 KAR 52:020. Title V permits;17 401 KAR 52:030. Federally-enforceable permits for nonmajor sources; 401 KAR 52:090. Prohibitorv rule for hot mix asphalt plants; 401 KAR 53:005. General provisions; 401 KAR 53:010. Ambient air quality standards.

    17 This rule is not approved into Kentucky's federally-approved SIP.

    Collectively these regulations establish enforceable emissions limitations and other control measures, means or techniques, for activities that contribute to PM2.5 concentrations in the ambient air and provide authority for KDAQ to establish such limits and measures as well as schedules for compliance to meet the applicable requirements of the CAA. EPA has made the preliminary determination that the provisions contained in these regulations, and Kentucky's statute are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance for the 2012 Annual PM2.5 NAAQS in the Commonwealth.

    In this action, EPA is not proposing to approve or disapprove any existing Commonwealth provisions with regard to excess emissions during SSM operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.18

    18 On June 12, 2015, EPA published a final action entitled, “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.” See 80 FR 33840.

    Additionally, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. These requirements are met through KRS 224.10-100 (22), which provides KDAQ the authority to require the installation, maintenance, and use of equipment, devices, or tests and methodologies to monitor the nature and amount of any substance emitted into the ambient air and to provide the information to the Cabinet.

    KDAQ cites the following regulations to demonstrate that the Commonwealth meets the requirements of this element: 401 KAR 50:050. Monitoring; 401 KAR 51:017. Prevention of significant deterioration of air quality; and 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas; 401 KAR 53:005. General provisions; 401 KAR 53:010. Ambient air quality standards.

    These SIP-approved rules and Kentucky's statute, along with Kentucky's Ambient Air Monitoring Network Plan, provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan and a certified evaluation of the agency's ambient monitors and auxiliary support equipment.19 KDAQ's monitoring network plan was submitted on June 27, 2016, and approved by EPA on October 25, 2016. Kentucky's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2016-0213. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2012 Annual PM2.5 NAAQS.

    19 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58.

    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). These requirements are met through 401 KAR 50:060. Enforcement; 401 KAR 51:017. Prevention of significant deterioration of air quality; and 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas. Collectively, these regulations enable KDAQ to regulate sources contributing to the 2012 Annual PM2.5 NAAQS. EPA's analysis of how these provisions of Kentucky's SIP address each sub-element (with the exception of the minor source program requirements, as set forth below) is described below.

    Enforcement: KDAQ's SIP-approved regulation, 401 KAR 50:060. Enforcement, provides for enforcement of PM2.5 emission limits and control measures through permit and compliance schedule modifications and revocations, and authorizes administrative penalties and injunctive relief, citing to statutory civil penalty and injunctive relief provisions of KRS 224.99-010. EPA has made the preliminary determination that Kentucky's SIP is adequate for enforcement related to the 2012 Annual PM2.5 NAAQS.

    PSD Permitting for Major Sources: EPA interprets the PSD sub-element to require that a state's infrastructure SIP submission for a particular NAAQS demonstrate that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. A state's PSD permitting program is complete for this sub-element (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state's SIP with respect to all structural PSD requirements that are due under the EPA regulations or the CAA on or before the date of the EPA's proposed action on the infrastructure SIP submission. For the 2012 Annual PM2.5 NAAQS, Kentucky's authority to regulate new and modified sources to assist in the protection of air quality in attainment or unclassifiable areas is established in KAR Chapter 51—Attainment and Maintenance of the National Ambient Air Quality Standards, which describes the permit requirements for new major sources or major modifications of existing sources in areas classified as attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the CAA. These requirements are designed to ensure that sources in areas attaining the NAAQS at the time of designations prevent any significant deterioration in air quality. Chapter 51 also establishes the permitting requirements for areas in or around nonattainment areas and provides the Commonwealth's statutory authority to enforce regulations relating to attainment and maintenance of the NAAQS.

    Kentucky's infrastructure SIP submission demonstrates that new major sources and major modifications in areas of the Commonwealth designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD elements.20 EPA has made the preliminary determination that Kentucky's SIP is adequate for PSD permitting for major sources related to the 2012 Annual PM2.5 NAAQS.

    20 For more information concerning how the Kentucky infrastructure SIP submission currently meets applicable structural PSD program requirements, see the technical support document in the docket for this proposed rulemaking.

    Regulation of minor sources and minor modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source preconstruction program that regulates emissions of the 2012 Annual PM2.5 NAAQS. EPA is not proposing any action in this rulemaking related to the regulation of minor sources and minor modifications under section 110(a)(2)(C) and will consider these requirements in relation to Kentucky's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking.

    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components has two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

    110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2). EPA will consider these requirements in relation to Kentucky's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking.

    110(a)(2)(D)(i)(II)—prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: A PSD program meeting all the current structural requirements of part C of title I of the CAA, or (if the state contains a nonattainment area that has the potential to impact PSD in another state) to a NNSR program. As discussed in more detail above under section 110(a)(2)(C), Kentucky's SIP contains the relevant SIP revisions necessary to satisfy the structural PSD requirements of prong 3. Kentucky's SIP-approved NNSR program is found at 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas. EPA has made the preliminary determination that Kentucky's SIP is adequate for interstate transport for permitting of major sources and major modifications related to the 2012 Annual PM2.5 NAAQS for section 110(a)(2)(D)(i)(II) (prong 3).

    110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation to Kentucky's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking.

    5. 110(a)(2)(D)(ii) Interstate and International Transport Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Regulation 401 KAR 51:010. Attainment Status Designations designates the status of all areas of the Commonwealth of Kentucky with regard to attainment of the NAAQS. Regulation 401 KAR 51:017. Prevention of significant deterioration of air quality and Regulation 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas, Section 1, require Kentucky to provide notice to nearby states that may be affected by proposed major source modifications. These regulations cite to Federal notification requirements under 40 CFR Sections 51.166 and 52.21, and to 401 KAR 52:100. Public, affected state, and US. EPA review, Section 6, which requires that public notice for permit actions be provided to affected states. Additionally, Kentucky does not have any pending obligation under sections 115 and 126 of the CAA. EPA has made the preliminary determination that Kentucky's SIP is adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2012 Annual PM2.5 NAAQS.

    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve Kentucky's SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and (iii).

    In support of EPA's proposal to approve elements 110(a)(2)(E)(i) and (iii), KDAQ's infrastructure submission demonstrates that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, fee schedules for the review of plans, and other planning needs. With respect to having the necessary funding and authority to implement the Kentucky SIP, Kentucky regulation, 401 KAR 50:038. Air Emissions Fee, and the following State statutes support sub-elements (i) and (iii): KRS 224.10-100. Powers and Duties of the Cabinet and KRS 224.10-020. Departments within the cabinet—Offices and divisions within the departments—Appointments. As evidence of the adequacy of KDAQ's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to KDAQ on April 19, 2016, outlining 105 grant commitments and current status of these commitments for fiscal year 2015. The letter EPA submitted to KDAQ can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2016-0213. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2015, therefore, KDAQ's grants were finalized and closed out. EPA has made the preliminary determination that Kentucky has adequate resources for implementation of the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(E)(i) and (iii).

    Section 110(a)(2)(E)(ii) requires that Kentucky comply with section 128 of the CAA. Section 128 requires at 128(a)(1) the majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and 128(a)(2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar, powers be adequately disclosed. For purposes of section 128(a)(1), Kentucky has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by the Director of the KDAQ. As such, a “board or body” is not responsible for approving permits or enforcement orders in Kentucky, and the requirements of section 128(a)(1) are not applicable. For purposes of section 128(a)(2), KDAQ's SIP has been updated. On October 3, 2012, EPA took final action to approve incorporation of KRS Chapters 11A.020, 11A.030, 11A.040 and Chapters 224.10-020 and 224.10-100 into the SIP to address the conflict of interest requirements of section 128. See 77 FR 60307. These SIP-approved state statutes establish the powers and duties of the Cabinet, departments within the Cabinet, and offices and divisions within such departments (Chapters 224.10-020 and 224.10-100), and support sub-element (ii) by requiring adequate disclosures of potential conflicts (KRS 11A.020. Public servant prohibited from certain conduct—Exception—Disclosure of personal or private interest) and otherwise ensuring that public officers and servants do not engage in activities that may present a conflict of interest (KRS 11A.030 Considerations in determination to abstain from action on official decision—Advisory opinion; and KRS 11A.040 Acts prohibited for public servant or officer—Exception). With the incorporation of these regulations and statutes into the Kentucky SIP, EPA has made the preliminary determination that the Commonwealth has adequately addressed the requirements of section 128(a)(2), and accordingly has met the requirements of section 110(a)(2)(E)(ii) with respect to infrastructure SIP requirements. Thus, EPA is proposing approval of KDAQ's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS with respect to section 110(a)(2)(E)(ii).

    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. The Kentucky infrastructure submission describes how the major source and minor source emission inventory programs collect emission data throughout the Commonwealth and ensure the quality of such data. Kentucky meets these requirements through Chapter 50 General Administrative Procedures, specifically 401 KAR 50:050 Monitoring. 401 KAR 50:050, Section 1, Monitoring Records and Reporting, states that the Cabinet may require a facility to install, use, and maintain stack gas and ambient air monitoring equipment and to establish and maintain records, and make periodic emission reports at intervals prescribed by the Cabinet. 401 KAR 50:050 Monitoring, Section 1, Monitoring, Records, and Reporting, establishes the requirements for the installation, use, and maintenance of stack gas and ambient air monitoring equipment, and authorizes the Cabinet to require the owner or operator of any affected facility to establish and maintain records for this equipment and make periodic emission reports at intervals prescribed by the Cabinet. Also, KRS 224.10-100 (23) requires that any person engaged in any operation regulated pursuant to this chapter file with the Cabinet reports containing information as to location, size, height, rate of emission or discharge, and composition of any substance discharged or emitted into the ambient air or into the waters or onto the land of the Commonwealth, and such other information the Cabinet may require. In addition, EPA is unaware of any provision preventing the use of credible evidence in the Kentucky SIP.21

    21 “Credible Evidence,” makes allowances for owners and/or operators to utilize “any credible evidence or information relevant” to demonstrate compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certification and can be used to establish whether or not an owner or operator has violated or is in violation of any rule or standard.

    Additionally, Kentucky is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxides, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Kentucky made its latest update to the NEI on November 6, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for the stationary source monitoring systems related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(F).

    8. 110(a)(2)(G) Emergency Powers: This section requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. Kentucky's infrastructure SIP submission identifies air pollution emergency episodes and preplanned abatement strategies as outlined in the following Kentucky regulations in Chapter 55 Emergency Episodes, specifically: 401 KAR 55:005. Significant harm criteria, 401 KAR 55:010. Episode Criteria, and 401 KAR 55:015. Episode Declaration. 401 KAR 55:005. Significant Harm Criteria, Section 1, Purpose, defines those levels of pollutant concentration which must be prevented in order to avoid significant harm to the health of persons. 401 KAR 55:010. Episodic Criteria, defines those levels of pollutant concentrations which justify the proclamation of an air pollution alert, air pollution warning, an air pollution emergency. 401 KAR 55:015. Episode Declaration, provides for the curtailment or reduction of processes or operations which emit an air contaminant or an air contaminant precursor whose criteria has been reached and are located in the affected areas for which an episode level has been declared.

    In addition, KRS 224.10-100 Powers and duties of cabinet and KRS 224.10-410 Order for discontinuance, abatement, or alleviation of condition or activity without hearing—Subsequent hearing, establish the authority for Kentucky's secretary to issue orders to person(s) for discontinuance, abatement, or alleviation of any condition or activity without hearing because the condition or activity presents a danger to the health or welfare of the people of the state, and for the Cabinet to require adoption of any remedial measures deemed necessary. EPA has made the preliminary determination that Kentucky's SIP, and state laws are adequate for emergency powers related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(G).

    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan: (i) As may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. As previously discussed, KDAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS. Kentucky has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS.

    KDAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in Kentucky. 401 KAR Chapter 53 Ambient Air Quality and Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards grant KDAQ the broad authority to implement the CAA, and as such, provides KDAQ the authority to prepare and develop, after proper study, a comprehensive plan for the prevention of air pollution. These statutes also provide KDAQ the ability and authority to respond to calls for SIP revisions, and KDAQ has provided a number of SIP revisions over the years for implementation of the NAAQS. Additionally, 401 KAR 53:010 outlines the ambient air quality standards necessary for the protection of the public health, the general welfare, and the property and people in the Commonwealth and states that within 60 days of promulgation or revision of any NAAQS by EPA, the Cabinet will initiate a process to promulgate or review this administrative regulation. 401 KAR 51:010. Attainment Status Designations provides provisions for the Cabinet to review applicable data and submit to EPA proposed revisions to the list of attainment-nonattainment areas. EPA has made the preliminary determination that Kentucky adequately demonstrates a commitment to provide future SIP revisions related to the 2012 Annual PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS with respect to section 110(a)(2)(H).

    10. 110(a)(2)(J) Consultation with Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve Kentucky's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127, PSD, and visibility. EPA's rationale for each sub-element is described below.

    Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. This requirement is met through provisions in separate implementation plans, such as the Regional Haze SIP, which provide for continued consultation with government officials, including the FLMs. Kentucky adopted consultation procedures in coordination with the transportation partners in the Commonwealth, for the implementation of transportation conformity, which includes the development of mobile inventories for SIP development. Implementation of transportation conformity as outlined in the consultation procedures requires KDAQ to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. Also, KDAQ notes in its February 8, 2016, SIP submission that the following Kentucky regulations provide the Commonwealth the authority to meet this requirement: 401 KAR 50:055. General compliance requirements; 401 KAR 50:060. Enforcement; 401 KAR 50:065. Conformity of general federal actions; 401 KAR 50:066. Conformity of Transportation Plans, Programs, and Projects; 401 KAR 51:017. Prevention of Significant Deterioration of Air Quality; and 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate consultation with government officials related to the 2012 Annual PM2.5 NAAQS when necessary for the consultation with government officials element of section 110(a)(2)(J).

    Public notification (127 public notification): These requirements are met through the following Kentucky regulations: 401 KAR 51:001. Definitions for 401 KAR Chapter 51; 401 KAR 51:005. Purpose and General Provisions; 401 KAR 51:010. Attainment Status Designations; 401 KAR 51:017. Prevention of significant deterioration of air quality; 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas; and 401 KAR 52:100. Public, Affected State, and US. EPA Review. Additionally, Kentucky provides air quality information to the public via its Web site at: http://eppcapp.ky.gov/daq/. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate the Commonwealth's ability to provide public notification related to the 2012 Annual PM2.5 NAAQS when necessary for the public notification element of section 110(a)(2)(J).

    PSD: With regard to the PSD element of section 110(a)(2)(J), this requirement is met when a state's infrastructure SIP submission for a particular NAAQS demonstrates that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. As discussed in more detail above under section 110(a)(2)(C), Kentucky's SIP contains the relevant SIP revisions necessary to satisfy the structural PSD requirements of this element of section 110(a)(2)(J). EPA has made the preliminary determination that Kentucky's SIP is adequate for the PSD element of section 110(a)(2)(J).

    Visibility protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. EPA recognizes that states are subject to visibility protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals. As such, EPA has made the determination that it does not need to address the visibility protection element of section 110(a)(2)(J) in Kentucky's infrastructure SIP submission related to the 2012 Annual PM2.5 NAAQS.

    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to the EPA can be made. This requirement is met through Kentucky regulations 401 KAR 50:040. Air Quality Models and 401 KAR 50:050. Monitoring. Additionally, Kentucky participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2012 Annual PM2.5 NAAQS, for the Southeastern states. Taken as a whole, Kentucky's air quality regulations and practices demonstrate that KDAQ has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2012 Annual PM2.5 NAAQS. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate the Commonwealth's ability to provide for air quality modeling, along with analysis of the associated data, related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(K).

    12. 110(a)(2)(L) Permitting Fees: This section requires the SIP to direct the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.

    Kentucky regulation, 401 KAR 50:038 Air Emissions Fee, 22 provides for the assessment of fees necessary to fund the state permit program. KDAQ ensures this is sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. Additionally, Kentucky has a fully approved title V operating permit program at 401 KAR 52:020 Title V permits23 that covers the cost of implementation and enforcement of PSD and NNSR permits after they have been issued. EPA has made the preliminary determination that Kentucky's SIP and practices adequately provide for permitting fees related to the 2012 Annual PM2.5 NAAQS, when necessary. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(L).

    22 This rule is not approved into the federally approved SIP.

    23 This rule is not approved into the federally approved SIP.

    13. 110(a)(2)(M) Consultation and Participation by Affected Local Entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. This requirement is met through provisions in separate implementation plans, such as the regional haze SIP, which provide for continued consultation with government officials, including the FLMs. Kentucky regulation, 401 KAR 50:066. Conformity of transportation plans, programs, and projects, and the interagency consultation process as directed by Kentucky's approved Conformity SIP and 40 CFR 93.112 provide for consultation with local groups. More specifically, Kentucky adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development and the requirements that link transportation planning and air quality planning in nonattainment and maintenance areas. Required partners covered by Kentucky's consultation procedures include Federal, state and local transportation and air quality agency officials. Further, Kentucky's PM2.5 infrastructure SIP submission notes that the following State regulations and State statutes provide the Commonwealth the authority to meet the requirements of this element: 401 KAR 50:066. Conformity of transportation plans, programs, and projects; 401 KAR 52:100. Public, Affected State, and US EPA Review; and KRS Chapter 77. Air Pollution Control. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate consultation with affected local entities related to the 2012 Annual PM2.5 NAAQS when necessary.

    V. Proposed Action

    With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the minor source program requirements of section 110(a)(2)(C), EPA is proposing to approve Kentucky's February 8, 2016, infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS for the above described infrastructure SIP requirements. EPA is proposing to approve these portions of Kentucky's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS because these aspects of the submission are consistent with section 110 of the CAA.

    VI. 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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely 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, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 17, 2017. V. Anne Heard, Acting Regional Administrator, Region 4.
    [FR Doc. 2017-09392 Filed 5-9-17; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 17 [WT Docket No. 17-79; FCC 17-38] Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) seeks comment on proposals to reduce the regulatory impediments to wireless network infrastructure investment and deployment.

    DATES:

    Interested parties may file comments on or before June 9, 2017, and reply comments on or before July 10, 2017.

    ADDRESSES:

    You may submit 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). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). All filings related to this document shall refer to WT Docket No. 17-79.

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.

    Filings can 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. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes 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.

    People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    For additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection modifications proposed herein should be submitted to the Commission via email to [email protected] and to Nicholas A. Fraser, Office of Management and Budget, via email to [email protected] or via fax at 202-395-5167.

    FOR FURTHER INFORMATION CONTACT:

    For further information on this proceeding, contact Aaron Goldschmidt, [email protected], of the Wireless Telecommunications Bureau, Competition & Infrastructure Policy Division, (202) 418-7146, or David Sieradzki, [email protected], of the Wireless Telecommunications Bureau, Competition & Infrastructure Policy Division, (202) 418-1368.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Federal Communications Commission's Notice of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI, respectively), in WT Docket No. 17-79; FCC 17-38, adopted April 20, 2017, and released on April 21, 2017. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal 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 (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    I. Notice of Proposed Rulemaking A. Streamlining State and Local Review

    1. In this section, the Commission addresses the process for reviewing and deciding on wireless facility deployment applications conducted by State and local regulatory agencies. The Commission seeks comment on several potential measures or clarifications intended to expedite such review pursuant to the Commission's authority under Section 332 of the Communications Act.

    2. The Commission has taken a number of important actions to date implementing Section 332(c)(7) of the Communications Act (Act) and Section 6409(a) of the Spectrum Act, each of which has been upheld by federal courts. The Commission seeks to assess the impact of the Commission's actions to date, in order to evaluate the measures the Commission discusses in the NPRM, as well as other possible actions, and to determine whether those measures are likely to be effective in further reducing unnecessary and potentially impermissible delays and burdens on wireless infrastructure deployment associated with State and local siting review processes. Thus, the Commission asks parties to submit facts and evidence on the issues discussed below and on any other matters relevant to the policy proposals set forth here. The Commission seeks information on the prevalence of barriers, costs thereof, and impacts on investment in and deployment of wireless services, including how such costs compare to the overall costs of deployment. The Commission seeks information on the specific steps that various regulatory authorities employ at each stage in the process of reviewing applications, and which steps have been most effective in efficiently resolving tensions among competing priorities of network deployment and other public interest goals. In addition, parties should detail the extent to which the Commission's existing rules and policies have or have not been successful in addressing local siting review challenges, including effects or developments since the 2014 Infrastructure Order, the Commission's most recent major decision addressing these issues (See Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd 12865 (2014) (2014 Infrastructure Order)). To the extent that parties have submitted information in response to the Wireless Telecommunications Bureau's Streamlining PN that is relevant to these questions, the Commission invites them to submit such data in the present docket (See Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies; Mobilitie, LLC Petition For Declaratory Ruling, Public Notice, 31 FCC Rcd 13360, 13368 (WTB 2016) (Streamlining PN)). In addition, to the extent parties discuss the conduct or practices of government bodies or wireless facility siting applicants, the Commission strongly urges them to identify the particular entities that they assert engaged in such conduct or practices.

    3. Further, in seeking comment on new or modified measures to expedite local review, the Commission invites commenters to discuss what siting applicants can or should be required to do to help expedite or streamline the siting review process. Are there ways in which applicants are causing or contributing to unnecessary delay in the processing of their siting applications? If so, the Commission seeks comment on how the Commission should address or incorporate this consideration in any action the Commission takes in this proceeding. For example, to what extent have delays been the result of incomplete applications or failures to properly respond to requests to the applicant for additional information, and how should measures the Commission adopts or revises to streamline application review ensure that applicants are responsible for supplying complete and accurate filings and information? Further, are there steps the industry can take outside the formal application review process that may facilitate or streamline such review? Are there siting practices that applicants can or should adopt that will facilitate faster local review while still achieving the deployment of infrastructure necessary to support advanced wireless broadband services?

    1. “Deemed Granted” Remedy for Missing Shot Clock Deadlines

    4. The Commission now takes a fresh look and seeks comment on a “deemed granted” remedy for State and local agencies' failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act. The Commission invites commenters to address whether the Commission should adopt one or more of the three options discussed below regarding the mechanism for implementing a “deemed granted” remedy. The Commission describes each of these options below and explains its analysis of its legal authority to adopt each of them. The Commission seeks comment on the benefits and detriments of each option and invites parties to discuss the Commission's legal analysis. The Commission also seeks comment on whether there are other options for implementing a “deemed granted” remedy.

    5. Irrebuttable Presumption. In the 2009 Shot Clock Declaratory Ruling, the Commission created a “rebuttable presumption” that the shot clock deadlines established by the Commission were reasonable (See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd 13994 (2009) (2009 Shot Clock Declaratory Ruling)). The Commission anticipated that this would give State and local regulatory agencies “a strong incentive to resolve each application within the time frame defined as reasonable.” Thus, when an applicant sues pursuant to Section 332(c)(7)(B)(v) to challenge an agency's failure to act on an application by the applicable deadline, the agency would face the burden of “rebut[ting] the presumption that the established timeframes are reasonable,” and if it fails to satisfy this burden, the court could “issu[e] . . . an injunction granting the application.” The Commission believes one option for establishing a “deemed granted” remedy for a State or local agency's failure to act by the applicable deadline would be to convert this rebuttable presumption into an irrebuttable presumption. Thus, the Commission's determination of the reasonable time frame for action (i.e., the applicable shot clock deadline) would “set an absolute limit that—in the event of a failure to act—results in a deemed grant.”

    6. The Commission believes it has legal authority to adopt this approach. The Commission sees no reason to continue adhering to the cautious approach articulated in the 2009 Shot Clock Declaratory Rulingi.e., that Section 332(c)(7) “indicates Congressional intent that courts should have the [sole] responsibility to fashion . . . remedies” on a “case-specific” basis. The Commission advanced that theory without citing any legislative history or other sources, and the Fifth Circuit, in its decision upholding the 2009 Shot Clock Declaratory Ruling, apparently declined to rely on it. Instead, the Fifth Circuit found no indication in the statute and its legislative history of any clear Congressional intent on whether the Commission could “issue an interpretation of section 332(c)(7)(B)(v) that would guide courts' determinations of disputes under that section,” and went on to affirm that the Commission has broad authority to render definitive interpretations of ambiguous provisions such as this one in Section 332(c)(7). The Fifth Circuit further found—and the Supreme Court affirmed—that courts must follow such Commission interpretations.

    7. The Commission sees nothing in the statute that explicitly compels a case-by-case assessment of the relevant circumstances for each individual application, nor any provision specifically requiring that those time frames be indefinitely adjustable on an individualized basis, rather than subject to dispositive maximums that may be deemed reasonable as applied to specified categories of applications. While Section 332(c)(7)(B)(ii) provides that a locality must act on each application “within a reasonable time, taking into account the nature and scope of such request,” this does not necessarily mean that a reviewing court “must consider the specific facts of individual applications” to determine whether the locality acted within a reasonable time frame; the Commission is well-positioned to take into account the “nature and scope” of particular categories of applications in determining the maximum reasonable amount of time for localities to address each type. The Commission seeks comment on this analysis.

    8. Lapse of State and Local Governments' Authority. In the alternative (or in addition) to the irrebuttable presumption approach discussed above, the Commission believes it may implement a “deemed granted” remedy for State and local agencies' failure to act within a reasonable time based on the following interpretation of ambiguous provisions in the statute. Section 332(c)(7)(A) assures these agencies that their “authority over decisions concerning the placement, construction, and modification of personal wireless service facilities” is preserved—but significantly, qualifies that assurance with the provision “except as provided” elsewhere in Section 332(c)(7). The Commission seeks comment on whether the Commission should interpret this phrase as meaning that if a locality fails to meet its obligation under Section 332(c)(7)(B)(ii) to “act on [a] request for authorization to place, construct, or modify personal wireless facilities within a reasonable period of time,” then its “authority over decisions concerning” that request lapses and is no longer preserved. Under this interpretation, by failing to act on an application within a reasonable period of time, the agency would have defaulted its authority over such applications (i.e., lost the protection of Section 332(c)(7)(A), which otherwise would have preserved such authority), and at that point no local land-use regulator would have authority to approve or deny an application. Arguably, the Commission could establish that in those circumstances, there is no need for an applicant to seek such approval. The Commission seeks comment on this interpretation and on the desirability of taking this approach.

    9. Preemption Rule. A third approach to establish a “deemed granted” remedy—standing alone or in tandem with one or both of the approaches outlined above—would be to promulgate a rule to implement the policies set forth in Section 332(c)(7). Sections 201(b) and 303(r), as well as other statutory provisions, generally authorize the Commission to adopt rules or issue other orders to carry out the substantive provisions of the Communications Act. Further, the Fifth Circuit affirmed the determination in the 2009 Shot Clock Declaratory Ruling that the Commission's “general authority to make rules and regulations to carry out the Communications Act includes the power to implement section 332(c)(7)(B)(ii) and (v).” Accordingly, the Commission seeks comment on whether it could promulgate a “deemed granted” rule to implement Section 332(c)(7). The Commission also seeks comment on whether Section 253, standing alone or in conjunction with Section 332(c)(7) or other provisions of the Act, provides the authority for the Commission to promulgate a “deemed granted” rule.

    2. Reasonable Period of Time To Act on Applications

    10. In 2009, the Commission determined that, for purposes of determining what is a “reasonable period of time” under Section 332(c)(7)(B)(ii), 90 days should be sufficient for localities to review and act on (either by approving or denying) complete collocation applications, and that 150 days is a reasonable time frame for them to review and act on other types of complete applications to place, construct, or modify wireless facilities. In its 2014 Infrastructure Order, the Commission implemented Section 6409(a) of the Spectrum Act (enacted by Congress in 2012) by, among other things, creating a new 60-day shot clock within which localities must act on complete applications subject to the definitions in the Spectrum Act.

    11. The Commission asks commenters to discuss whether the Commission should consider adopting different time frames for review of facility deployments not covered by the Spectrum Act. For example, the Commission seeks comment on whether it should harmonize the shot clocks for applications that are not subject to the Spectrum Act with those that are, so that, for instance, the time period deemed reasonable for non-Spectrum Act collocation applications would change from 90 days to 60 days. Alternatively, should the Commission establish a 60-day shot clock for some subset of collocation applications that are not subject to the Spectrum Act, for example, applications that meet the relevant dimensional limits but are nevertheless not subject to the Spectrum Act because they seek to collocate equipment on non-tower structures that do not have any existing antennas? Should the Commission adopt different presumptively reasonable time frames for resolving applications for more narrowly defined classes of deployments such as (a) construction of new structures of varying heights (e.g., 50 feet tall or less, versus 50 to 200 feet tall, versus taller than 200 feet); (b) construction of new structures in or near major utility or transportation rights of way, or that are in or near established clusters of similar structures, versus those that are not; (c) deployments in areas that are zoned for residential, commercial, or industrial use, or in areas where zoning or planning ordinances contemplate little or no additional development; or (d) replacements or removals that do not fall within the scope of Section 6409(a) of the Spectrum Act (for example, because they exceed the dimensional limits for requests covered by that provision)? The Commission also requests comment on whether to establish different time frames for (i) deployment of small cell or Distributed Antenna System (DAS) antennas or other small equipment versus more traditional, larger types of equipment or (ii) requests that include multiple proposed deployments or, equivalently, “batches” of requests submitted by a single provider to deploy multiple related facilities in different locations, versus proposals to deploy one facility. Should the Commission align the Commission's definitions of categories of deployments for which the Commission specifies reasonable time frames for local siting review with the Commission's definitions of the categories of deployments that are categorically excluded from environmental or historic preservation review?

    12. The Commission seeks comment on what time periods would be reasonable (outside the Spectrum Act context) for any new categories of applications, and on what factors the Commission should consider in making such a decision. For what types or categories of wireless siting applications may shorter time periods be reasonable than those established in the 2009 Shot Clock Declaratory Ruling? The Commission invites commenters to submit information to help guide the Commission's development of appropriate time frames for various categories of deployment. The Commission asks commenters to submit any available data on whether localities already recognize different categories of deployment in their processes, and on the actual amounts of time that localities have taken under particular circumstances.

    13. The Commission also seeks comment on whether it should provide further guidance to address situations in which it is not clear when the shot clock should start running, or in which States and localities on one hand, and industry on the other, disagree on when the time for processing an application begins. For instance, the Commission has heard anecdotally that some jurisdictions impose a “pre-application” review process, during which they do not consider that a request for authorization has been filed. The Commission seeks comment on how the shot clocks should apply when there are such pre-application procedures; at what point should the clock begin to run? Are there other instances in which there is a lack of clarity or disagreement about when the clock begins to run? The Commission asks parties to address whether and how it should provide clarification of how the Commission's rules apply in those circumstances.

    14. Finally, the Commission seeks comment on whether there are additional steps that should be considered to ensure that a deemed granted remedy achieves its purpose of expediting review. For example, to what extent can the attachment of conditions to approvals of local zoning applications slow the deployment of infrastructure? Are applicants encountering requirements to comply with codes that are not reasonably related to health and safety? To the extent these conditions present challenges to deployment, are there steps the Commission can and should take to address such challenges?

    3. Moratoria

    15. Another concern relating to the “reasonable periods of time” for State and local agencies to act on siting applications is that some agencies may be continuing to impose “moratoria” on processing such applications, which inhibit the deployment of the infrastructure needed to provide robust wireless services. If so, such moratoria might contravene the 2014 Infrastructure Order, which clearly stated that the shot clock deadlines for applications continue to “run[] regardless of any moratorium.” The Commission explained that this conclusion was “consistent with a plain reading of the 2009 Declaratory Ruling, which specifies the conditions for tolling and makes no provision for moratoria,” and concluded that this means that “applicants can challenge moratoria in court when the shot clock expires without State or local government action.” The Commission sees no reason to depart from this conclusion. The Commission asks commenters to submit specific information about whether some localities are continuing to impose moratoria or other restrictions on the filing or processing of wireless siting applications, including refusing to accept applications due to resource constraints or due to the pendency of state or local legislation on siting issues, or insisting that applicants agree to tolling arrangements. Commenters should identify the specific entities engaging in such actions and describe the effect of such restrictions on parties' ability to deploy or upgrade network facilities and provide service to consumers. The Commission proposes to take any additional actions necessary, such as issuing an order or declaratory ruling providing more specific clarifications of the moratorium ban or preempting specific State or local moratoria. Commenters should discuss the benefits and detriments of any such additional measures and the Commission's legal authority to adopt them.

    B. Reexamining National Historic Preservation Act and National Environmental Policy Act Review

    16. In the following sections, the Commission undertakes a comprehensive fresh look at its rules and procedures implementing the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) as they relate to the Commission's implementation of Title III of the Act in the context of wireless infrastructure deployment, given the ongoing evolution in wireless infrastructure deployment towards smaller antennas and supporting structures as well as more frequent collocation on existing structures.

    2. Updating Our Approach to the NHPA and NEPA a. Need for Action

    17. Many wireless providers have raised concerns about the Commission's environmental and historic preservation review processes because, they say, these reviews increase the costs of deployment and pose lengthy and often unnecessary delays, particularly for small facility deployments. A large number of wireless providers complain that the Tribal component of the Section 106 review process is particularly cumbersome and costly. The Commission seeks concrete information on the amount of time it takes for Tribal Nations to complete the Section 106 review process and on the costs that Tribal participation imposes on facilities deployment and on the provision of service. The Commission also seeks comment and specific information on the extent of benefits attributable to Tribal participation under the Commission's Section 106 procedures, particularly in terms of preventing damage to historic and culturally significant properties.

    18. In addition, in May 2016, PTA-FLA filed a Petition for Declaratory Ruling arguing that “Tribal fees have become so exorbitant in some cases to approach or even exceed the cost of actually erecting the tower.” The Commission incorporates PTA-FLA's petition into this proceeding and seeks comment below on its proposals.

    19. Some wireless providers contend that the SHPO review process also results in significant delays in deployment. The Commission seeks comment on the costs associated with SHPO review under the Commission's historic preservation review process, including direct financial costs; costs that delay imposes on carriers, tower owners, and the public; and any other costs. What are the costs associated with SHPO review of typical small facility deployments, and how do these compare with the costs for tower construction projects? Does the SHPO review process duplicate historic preservation review at the local level, particularly when local review is conducted by a Certified Local Government or a governmental authority that issues a Certificate of Appropriateness? In addition, the Commission seeks comment on how often SHPO review results in changes to a construction project due to a SHPO's identification of potential harm to historic properties or confers other public benefits.

    20. Some argue that NEPA compliance imposes extraordinarily high costs on wireless providers and results in significant delays. The Commission seeks comment on the costs and relative benefits of the Commission's NEPA rules. What are the costs associated with NEPA compliance, other than costs associated with historic preservation review? How do the costs of NEPA compliance for tower construction compare to such costs for small facilities, and what specific benefits does the review confer?

    21. Finally, some note that facilities requiring Federal review must also undergo pre-construction review by local governmental authorities, and assert that the inability to engage in these dual reviews simultaneously can add significant time to the process. The Commission seeks comment on whether local permitting, NEPA review, and Section 106 review processes can feasibly be conducted simultaneously, and on whether there are barriers preventing simultaneous review to the extent it is feasible. To what extent do significant siting changes or the potential for such changes during the local process make simultaneous review impractical or inefficient? Alternatively, have reviewing or consulting parties in the Commission's NEPA or Section 106 review processes declined to process an application until a local permitting process is complete? The Commission seeks comment on whether and under what circumstances simultaneous review would, on the whole, minimize delays and provide for a more efficient process and what steps, if any, the Commission should take to facilitate or enable such simultaneous review.

    b. Process Reforms (i) Tribal Fees

    22. In this section, the Commission identifies and seeks comment on several issues relevant to fees paid to Tribal Nations in the Section 106 process. In addition to commenting on the legal framework and on potential resolutions to the issues, the Commission encourages commenters to provide specific factual information on current Tribal and industry practices and on the impacts of those practices on licensees/tower owners, Tribal Nations, and timely deployment of advanced broadband services to all Americans. The Commission further welcomes information on the practices of other Federal agencies for the Commission's consideration.

    23. Neither the NHPA nor the Advisory Council on Historic Preservation's (ACHP) implementing regulations address whether and under what circumstances Tribal Nations and Native Hawaiian Organizations (NHO) may seek compensation in connection with their participation in the Section 106 process. The ACHP has, however, issued guidance on the subject in the form of a memorandum in 2001 and as part of a handbook last issued in 2012. The ACHP 2001 Fee Guidance explains that “the agency or applicant is not required to pay the tribe for providing its views.” Further, “[i]f the agency or applicant has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation to consult and is free to move to the next step in the Section 106 process.” The guidance also states, however, that when a Tribal Nation “fulfills the role of a consultant or contractor” when conducting reviews, “the tribe would seem to be justified in requiring payment for its services, just as any other contractor,” and the company or agency “should expect to pay for the work product.” As explained below, the Commission seeks comment on how the ACHP's guidance can be applied in the context of the Commission's existing procedures and the proposals in this proceeding. Moreover, the Commission seeks comment on practices or procedures of other Federal agencies with respect to addressing the various roles a Tribal Nation may play in the Section 106 process and how to identify those services for which a Tribal Nation would be justified in seeking fees.

    24. Circumstances When Fees Are Requested. The ACHP Handbook clearly states that no “portion of the NHPA or the ACHP's regulations require[s] an agency or an applicant to pay for any form of tribal involvement.” The Commission notes that ACHP guidance permits payments to a Tribal Nation when it fulfills a role similar to any other consultant or contractor. At what point in the Tower Construction Notification System (TCNS) process, if any, might a Tribal Nation act as a contractor or consultant? The Commission seeks comment on any facts that might affect the answer to that question. Does the particular request of the applicant determine whether a Tribal Nation is acting as a contractor or consultant? For example, the ACHP Handbook notes that if an applicant asks for “specific information and documentation” from a Tribal Nation, then the Tribal Nation is being treated as a contractor or consultant. Should the Commission infer if the applicant does not ask explicitly for such information and documentation, then no payment is necessary? The Commission also seeks comment on whether Tribal review for some types of deployment is less in the nature of a contractor or consultant. For example, would collocations or applications to site poles in rights of way be less likely to require services outside of the Tribal Nation's statutory role? In reviewing TCNS submissions for collocations or for siting poles in rights of way, under what circumstances might a Tribal Nation incur research costs for which it or another contractor might reasonably expect compensation?

    25. Once a Tribal Nation or NHO has been notified of a project, an applicant must provide “all information reasonably necessary for the Indian tribe or NHO to evaluate whether Historic Properties of religious and cultural significance may be affected” and provide the Tribal Nation or NHO with a reasonable opportunity to respond. The Commission seeks comment on this requirement and on any modifications the Commission can and should make. In particular, the Commission seeks comment on whether the information in FCC Form 620 or FCC Form 621 is sufficient to meet the requirement that “all information reasonably necessary . . .” has been provided to the Tribal Nation. If not, are there modifications to these forms that would enable the Commission to meet this requirement? For example, should the FCC Form 620 and FCC Form 621 be amended to address the cultural resources report that an applicant prepares after completing a Field Survey? Additionally, the Commission seeks comment on whether a Tribal Nation's or NHO's review of the materials an applicant provides under the Nationwide Programmatic Agreement (NPA) Section VII is ever, and if so under what circumstances, the equivalent of asking the Tribal Nation or NHO to provide “specific information and documentation” like a contractor or consultant would, thereby entitling the Tribal Nation to seek compensation under ACHP guidance and the NPA. If a Tribal Nation chooses to conduct research, surveying, site visits or monitoring absent a request of the applicant, would such efforts require payment from the applicant? If an archaeological consultant conducted research, surveying, site visits, or monitoring absent a request of the applicant, would the applicant normally be required to pay that contractor or consultant? The Commission seeks comment on how the ACHP Handbook's statement that an “applicant is free to refuse [payment] just as it may refuse to pay for an archaeological consultant,” as well as its statement that “the agency still retains the duties of obtaining the necessary information [to fulfill its Section 106 obligations] through reasonable methods,” impacts the Commission's analysis of payments for Tribal participation.

    26. The Commission notes that some Tribal Nations have indicated that they assess a flat upfront fee for all applications as a way to recover costs for their review of all TCNS applications, thereby eliminating the administrative burden of calculating actual costs for each case. The Commission seeks comment on this manner of cost recovery and whether such cost recovery is consistent with ACHP's fee guidance in its 2012 Handbook. Tribal Nations have also indicated that they have experienced difficulties in collecting compensation after providing service as a reason for upfront fee requests. The Commission seeks comment on whether this concern could be alleviated if the Commission clarifies when a Tribal Nation is acting under its statutory role and when it is being hired as a contractor or consultant under the Commission's process. The Commission also seeks comment on whether there might be a more appropriate way to address this concern.

    27. What steps, if any, can the Commission take to issue the Commission's own guidance on the circumstances in the Commission's process when the Tribal Nation is expressing its views and no compensation by the agency or the applicant is required under ACHP guidance, and the circumstances where the Tribal Nation is acting in the role of a consultant or contractor and would be entitled to seek compensation? The Commission seeks comment on what bright-line test, if any, could be used. How does the reasonable and good faith standard for identification factor, if at all, into when a Tribal request for fees must be fulfilled in order to meet the standard? The Commission seeks comment on how disputes between the parties might be resolved when a Tribal Nation asserts that compensable effort is required to initiate or conclude Section 106 review. The Commission seeks comment on whether there are other mechanisms to reduce the need for case-by-case analysis of fee disputes. While the Commission seeks comment generally on its process, the Commission also seeks comment particularly in the context of deployment of infrastructure for advanced communications networks.

    28. To the extent that supplementing current ACHP guidance would help clarify when Tribal fees may be appropriate while both facilitating efficient deployment and recognizing Tribal interests, what input, if any, should the Commission provide to the ACHP on potential modifications to ACHP guidance?

    29. Amount of Fees Requested. One factor that appears to be driving tower owners and licensees to seek Commission guidance in the fee area is not the mere existence of fees, but instead the amount of compensation sought by some Tribal Nations. How, if at all, does the “reasonable and good faith” standard for identification factor into or temper the amount of fees a Tribal Nation may seek in compensation? Are there any extant fee rates or schedules that might be of particular use to applicants and Tribal Nations in avoiding or resolving disputes regarding the amount of fees?

    30. One party has requested in a petition that the Commission establish a fee schedule or otherwise resolve fee disputes. The Commission seeks comment on the legal framework applicable to this request. How might the impact of fee disputes on the deployment of infrastructure for advanced communications networks provide a basis for establishing a fee schedule in this context using the Communications Act as authority? Do the NHPA or other statutes limit the Commission's ability to establish such a fee schedule, and if so, how? How might the Miscellaneous Receipts Act (MRA) and General Accountability Office (GAO) precedent on improper augmentation temper the parameters of the Commission's actions in the area? The Commission seeks comment on whether other Federal agencies have established fee schedules or addressed the matter in any way, e.g., either formally or informally or with respect to particular projects. How does due regard for Tribal sovereignty and the Government's treaty obligations affect the Commission's latitude for action in this area?

    31. If the Commission were to establish a fee schedule, the Commission seeks comment on what weight or impact it might have on the Commission's process. For example, to what extent would fees at or below the level established by a fee schedule be considered presumptively reasonable? The Commission further seeks comment on what legal framework would be relevant to resolution of disputes concerning an upward or downward departure from the fee schedule. Should the fees specified in such a schedule serve as the presumptive maximum an applicant would be expected to pay, and under what circumstances might an upward departure from the fee schedule be appropriate? In addition to the concepts cited in the prior paragraph, are there other legal principles at play in the resolution of a dispute over a fee that might not arise in the context of merely setting a fee schedule? Have any other Federal agencies formally or informally resolved fee disputes between applicants and Tribal Nations, and if so, under what legal parameters? The Commission also seeks comment on what categories of services should be included, and whether the categories should be general or more specific. How would the Commission establish the appropriate level for fees? How could a fee schedule take into account both regional differences and changes in costs over time, i.e., inflation? The Commission also seeks comment on whether it should only establish a model fee schedule and whether that would be consistent with the Tribal engagement requirements contemplated by Section 106.

    32. Geographic Areas of Interest. Tribal Nations have increased their areas of interest within the TCNS as they have improved their understanding of their history and cultural heritage. As a result, applicants must sometimes contact upwards of 30 different Tribal Nations and complete the Section 106 process with each of them before being able to build their project. The Commission seeks comment on whether there are actions it can and should take to mitigate this burden while complying with the Commission's obligation under the NHPA and promoting the interests of all stakeholders. For example, the TCNS allows Tribal Nations and NHOs to select areas of interest at either a State or county level, but many Tribal Nations have asked to be notified of any project within entire States, and in a few instances, at least 20 different States. The Commission seeks comment on whether it could and should encourage, or require, the specification of areas of interest by county. The Commission also seeks comment on whether it should require some form of certification for areas of interest, and if so, what would be the default if a Tribal Nation fails to provide such certification.

    33. The Commission seeks comment on whether TCNS should be modified to retain information on areas where concerns were raised and reviews conducted, so that the next filer knows whether there is a concern about cultural resources in that area or not. To what extent should applicants be able to rely on prior clearances, given that resources may continue to be added to the lists of historic properties? To the extent the Commission considers allowing applicants to rely on prior clearances, how should the Commission accommodate Tribal Nations' changes to their areas of interest? The Commission further seeks comment on how it can protect information connected to prior site reviews, especially those areas where a tower was not cleared because there may be artifacts. The Commission also seeks comment on whether it can make any other changes to TCNS or the Commission's procedures to improve the Tribal review process.

    34. In addition, applicants routinely receive similar requests for compensation or compensable services from multiple Tribal Nations. While the Commission recognizes that each Tribal Nation is sovereign and may have different concerns, the Commission seeks comment on when it is necessary for an applicant to compensate multiple Tribal Nations for the same project or for the same activity related to that project, in particular site monitoring during construction. The Commission also seeks comment on whether, when multiple Tribal Nations request compensation to participate in the identification of Tribal historic properties of religious and cultural significance, whether there are mechanisms to gain efficiencies to ensure that duplicative review is not conducted by each Tribal Nation. Is it always necessary to obtain such services from all responding Tribal Nations that request to provide the service, and if so, why? Might one Tribal Nation when functioning in the role of a contractor perform certain services and share the work product with other Tribal Nations, e.g., site monitoring? Could an applicant hire a qualified independent site monitor and share its work product with all Tribal Nations that are interested? How would the Commission ensure that such a monitor is qualified so that other Tribal Nations' interests will be adequately considered? Should the Commission require that such a monitor meet some established minimum standards? The Commission also seeks comment on whether monitors should be required to prepare a written report and provide a copy to applicants.

    35. Remedies and Dispute Resolution. While the ACHP has indicated that Tribal concurrence is not necessary to find that no historic properties of religious and cultural significance to Tribal Nations or NHOs would be affected by an undertaking, the agency is responsible for getting the information necessary to make that determination. The Commission seeks comment on how these two directives interact. The ACHP 2001 Fee Guidance states that “if an agency or applicant attempts to consult with an Indian tribe and the tribe demands payment, the agency or applicant may refuse and move forward.” The Commission seeks comment on whether and under what circumstances the Commission should authorize a project to proceed when a Tribal Nation refuses to respond to a Section 106 submittal without payment.

    36. Under the NPA, when a Tribal Nation or NHO refuses to comment on the presence or absence of effects to historic properties without compensation, the applicant can refer the procedural disagreement to the Commission. The Commission seeks comment on whether it can adjudicate these referrals by evaluating whether the threshold of “reasonable and good faith effort” to identify historic properties has been met, given that the Tribal Nation can always request government-to-government consultation in the event of disagreement.

    37. The Commission seeks comment on when it must engage in government-to-government consultation to resolve fee disputes, including when the compensation level for an identification activity has been established by a Tribal government.

    38. Negotiated Alternative. The Commission notes that since September 2016, it has been facilitating meetings among Tribal and industry stakeholders with the goal of resolving challenges to Tribal requirements in the Section 106 review process, including disagreements over Tribal fees. The Commission seeks comment on whether it should continue seeking to develop consensus principles and, if so, how those principles should be reflected in practice. For example, the Commission seeks comment on whether it should seek to enter into agreements regarding best practices with Tribal Nations and their representatives.

    (ii) Other NHPA Process Issues

    (ii) Other NHPA Process Issues

    39. Lack of Response. As discussed above, while both State Historic Preservation Officers (SHPOs) and Tribal Nations/NHOs are expected ordinarily to respond to contacts within 30 days, the NPA and the Commission's practice establish different processes to be followed when responses are not timely. The Commission seeks comment on what measures, if any, it should take to further speed either of these review processes, either by amending the NPA or otherwise, while assuring that potential effects on historic preservation are fully evaluated. What effect would such proposals have on addressing Section 106-associated delays to deployment? Should different time limits apply to different categories of construction, such as new towers, DAS and small cells, and collocations? Have advances in communications during the past decade, particularly with respect to communications via the Internet, changed reasonable expectations as to timeliness of responses and reasonable efforts to follow up?

    40. With respect to Tribal Nations and NHOs, the Commission seeks comment on whether the processes established by the 2005 Declaratory Ruling and the Good Faith Protocol adequately ensure the completion of Section 106 review when a Tribal Nation or NHO is non-responsive (See Clarification of Procedures for Participation of Federally Recognized Indian Tribes and Native Hawaiian Organizations Under the Nationwide Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 16092 (2005) (2005 Declaratory Ruling)). The Commission seeks comment on whether the process can be revised in a manner that would permit applicants to self-certify their compliance with the Commission's Section 106 process and therefore proceed once they meet the Commission's notification requirements, without requiring Commission involvement, in a manner analogous to the “deemed granted” remedy for local governments. Would such an approach be consistent with the NPA and with the Commission's legal obligations? The Commission notes that Commission staff has discovered on numerous occasions that applicants have failed to perform their Tribal notifications as the Commission's processes require. If the Commission were to permit applicants to self-certify that they have completed their Tribal notification obligations, the Commission seeks comment on how it could ensure that the certifications are truthful and well-founded.

    41. Batching. In the PTC Program Comment, the ACHP established a streamlined process for certain facilities associated with building out the Positive Train Control (PTC) railroad safety system (See Wireless Telecommunications Bureau Announces Adoption of Program Comment to Govern Review of Positive Train Control Wayside Facilities, WT Docket 13-240, Public Notice, 29 FCC Rcd 5340, Attachment (WTB 2014) (PTC Program Comment)). Among other aspects of the PTC Program Comment, eligible facilities may be submitted to SHPOs and through TCNS in batches.

    42. The Commission seeks comment on whether it should adopt either a voluntary or mandatory batched submission process for non-PTC facilities. What benefits could be realized through the use of batching? What lessons can be learned from the experience with PTC batching? What guidelines should the Commission provide, if any, regarding the number of facilities to be included in a batch, their geographic proximity, or the size of eligible facilities? Should there be other conditions on eligibility, such as the nature of the location or the extent of ground disturbance? Should different time limits or fee guidelines, if any are adopted, apply to batched submissions? What changes to the Commission's current TCNS and E-106 forms and processes might facilitate batching? The Commission seeks comment on these and any other policy or operational issues associated with batching of proposed constructions.

    43. Other NHPA Process Reforms. The Commission seeks comment on whether there are additional procedural changes that the Commission should consider to improve the Section 106 review process in a manner that does not compromise its integrity.

    (iii) NEPA Process

    44. The Commission seeks comment on ways to improve and further streamline its environmental compliance regulations while ensuring that the Commission meets its NEPA obligations. For example, should the Commission consider new categorical exclusions for small cells and DAS facilities? If so, under what conditions and on what basis? Should the Commission revise its rules so that an EA is not required for siting in a floodplain when appropriate engineering or mitigation requirements have been met? Are there other measures the Commission could take to reduce unnecessary processing burdens consistent with NEPA?

    c. NHPA Exclusions for Small Facilities

    45. As part of the effort to expedite further the process for deployment of wireless facilities, including small facility deployments in particular, the Commission seeks comment below on whether it should expand the categories of undertakings that are excluded from Section 106 review. With respect to each of the potential exclusions discussed below, the Commission seeks comment on the alternatives of adopting additional exclusions directly in the Commission's rules, or incorporating into the Commission's rules a program alternative pursuant to the ACHP rules. The Commission may exclude activities from Section 106 review through rulemaking upon determining that they have no potential to cause effects to historic properties, assuming such properties are present. Where potential effects are foreseeable and likely to be minimal or not adverse, a program alternative under the ACHP's rules may be used to exclude activities from Section 106 review. The Commission seeks comment about whether the exclusions discussed below meet the test for an exclusion in 36 CFR 800.3(a)(1) or whether they would require a program alternative. To the extent that a program alternative would be necessary, the Commission seeks comment on which of the program alternatives authorized under the ACHP's rules would be appropriate. Particularly, for those potential exclusions where a program alternative would be required, commenters should discuss whether a new program alternative is necessary or whether an amendment to the NPA or a second amendment to the Collocation NPA would be the appropriate procedural mechanism (See Wireless Telecommunications Bureau Announces Execution of First Amendment to the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, Public Notice, 31 FCC Rcd 4617 (WTB 2016) (Collocation NPA)).

    (i) Pole Replacements

    46. The Commission seeks comment on whether it should take further measures to tailor Section 106 review for pole replacements. As noted above, wireless companies are increasingly deploying new infrastructure using smaller antennas and supporting structures, including poles. Under the existing NPA, pole replacements are excluded from Section 106 review if the pole being replaced meets the definition of a “tower” under the NPA (constructed for the sole or primary purpose of supporting Commission-authorized antennas), provided that the pole being replaced went through Section 106 review. The NPA also more generally excludes construction in or near communications or utility rights of way, including pole replacements, with certain limitations. In particular, the construction is excluded if the facility does not constitute a substantial increase in size over nearby structures and it is not within the boundaries of a historic property. However, proposed facilities subject to this exclusion must complete the process of Tribal and NHO participation pursuant to the NPA.

    47. The Commission seeks comment on whether additional steps to tailor Section 106 review for pole replacements would help serve the Commission's objective of facilitating wireless facility siting, while creating no or foreseeably minimal potential for adverse impacts to historic properties. For example, should the replacement of poles be excluded from Section 106 review, regardless of whether a pole is located in a historic district, provided that the replacement pole is not “substantially larger” than the pole it is replacing (as defined in the NPA)? The Commission envisions that this proposed exclusion could address replacements for poles that were constructed for a purpose other than supporting antennas, and thus are not “towers” within the NPA definition, but that also have (or will have) an antenna attached to them. This exclusion would also apply to pole replacements within rights of way, regardless of whether such replacements are in historic districts. The Commission seeks comment on this proposal and on whether any additional conditions would be appropriate. For example, consistent with the existing exclusion for replacement towers, commenters should discuss whether the exclusion should be limited to projects for which construction and excavation do not expand the boundaries of the leased or owned property surrounding the tower by more than 30 feet in any direction. How would the “leased or owned property” be defined within a utility right of way that may extend in a linear manner for miles?

    (ii) Rights of Way

    48. The Commission seeks comment on whether to expand the NPA exemption from Section 106 review for construction of wireless facilities in rights of way. First, as noted above, current provisions of the NPA exclude from Section 106 review construction in utility and communications rights of way subject to certain limitations. The Commission seeks comment on whether to adopt a similar exclusion from Section 106 review for construction or collocation of communications infrastructure in transportation rights of way and whether such an exclusion would be warranted under 36 CFR 800.3(a)(1). The Commission recognizes the Commission's previous determination in the NPA Order that, given the concentration of historic properties near many highways and railroads, it was not feasible to draft an exclusion for transportation corridors that would both significantly ease the burdens of the Section 106 process and sufficiently protect historic properties (See Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, Report and Order, 20 FCC Rcd 1073 (2004) (NPA Order)). The Commission also recognized, however, that transportation corridors are among the areas where customer demand for wireless service is highest, and thus where the need for new facilities is greatest.

    49. In addition, since the NPA Order, wireless technologies have evolved and many wireless providers now deploy networks that use smaller antennas and compact radio equipment, including DAS and small cell systems. In view of the changed circumstances that are present today, the Commission finds that it is appropriate to reconsider whether the Commission can exclude construction of wireless facilities in transportation rights of way in a manner that guards against potential effects on historic properties. The Commission seeks comment on whether such an exclusion should be adopted, subject to certain conditions that would protect historic properties, and, if so, what those conditions should be. For example, should the Commission require that poles be installed by auguring or that cable or fiber be installed by plow or by directional drilling? What stipulations are needed if a deployment may be adjacent to or on National Register-eligible or listed buildings or structures, or in or near a historic district? Would it be appropriate to have any limitation on height, in addition to the requirement in the current rights of way exclusion that the structures not constitute a substantial increase in size over existing nearby structures? How should any new exclusion address Tribal and NHO participation, especially for historic properties with archaeological components? The Commission also seeks comment on how to define the boundaries of a transportation right of way for these purposes.

    50. In addition to considering whether to adopt an exclusion for construction in transportation rights of way, the Commission also seeks comment on whether to amend the current right of way exclusion to apply regardless of whether the right of way is located on a historic property. As noted above, the current right of way exclusion applies only if (1) the construction does not involve a substantial increase in size over nearby structures and (2) the deployment would not be located within the boundaries of a historic property. The Commission seeks comment on whether this provision should be amended to exclude from Section 106 review construction of a wireless facility in a utility or communications right of way located on a historic property, provided that the facility would not constitute a substantial increase in size over existing structures. To the extent that utility and communications rights of way on historic properties already are lined with utility poles and other infrastructure, would allowing additional infrastructure have the potential to create effects? Commenters should discuss whether, if the exclusion is extended to historic properties, any additional conditions would be appropriate to address concerns about potential effects, for example any further limitation on ground disturbance. If so, how should ground disturbance be defined? The Commission also seeks comment about whether Tribal and NHO participation should continue to be required if an exclusion is adopted for facilities constructed in utility or communications rights of way on historic properties.

    (iii) Collocations

    51. Next, the Commission seeks comment on options to further tailor the Commission's review of collocations of wireless antennas and associated equipment. The Commission's rules have long excluded most collocations of antennas from Section 106 review, recognizing the benefits to historic properties that accrue from using existing support structures rather than building new structures. The Commission has also recently expanded these exclusions in the First Amendment to the Collocation NPA to account for the smaller infrastructure associated with new technologies. The Commission seeks comment now on whether additional measures to further streamline review of collocations are appropriate, whether as a matter of 36 CFR 800.3(a)(1) or under program alternatives, including those discussed below and any other alternatives.

    52. First, the Commission seeks comment on whether some or all collocations located between 50 and 250 feet from historic districts should be excluded from Section 106 review. Under current provisions in the Collocation NPA, Section 106 review continues to be required for collocations on buildings and other non-tower structures located within 250 feet of the boundary of a historic district to the extent those collocations do not meet the criteria established for small wireless antennas. The Commission seeks comment on whether this provision should be revised to exclude from Section 106 review collocations located up to 50 feet from the boundary of a historic district. The Commission seeks comment on this proposal and on whether any additional criteria should apply to an exclusion under these circumstances.

    53. Next, the Commission seeks comment on the participation of Tribal Nations and NHOs in the review of collocations on historic properties or in or near historic districts. Although, as stated above, the Collocation NPA excludes most antenna collocations from routine historic preservation review under Section 106, collocations on historic properties or in or near historic districts are generally not excluded, and in these cases, the NPA provisions for Tribal and NHO participation continue to apply. Consistent with the Commission's effort in this NPRM to take a fresh look at ways to improve and facilitate the review process for wireless facility deployments, the Commission seeks comment on whether to exclude from the NPA procedures for Tribal and NHO participation collocations that are subject to Section 106 review solely because they are on historic properties or in or near historic districts, other than properties or districts identified in the National Register listing or determination of eligibility as having Tribal significance. For instance, should the Commission exclude from review non-substantial collocations on existing structures involving no ground disturbance or no new ground disturbance, or non-substantial collocations on new structures in urban rights of way or indoors? Should the Commission exclude from the NPA provisions for Tribal and NHO participation collocations of facilities on new structures in municipal rights of way in urban areas that involve no new ground disturbance and no substantial increase in size over other structures in the right of way? Should the Commission exclude collocations of facilities on new structures in industrial zones or facilities on new structures in or within 50 feet of existing utility rights of way? Commenters should discuss whether collocations in these circumstances have the potential to cause effects on properties significant to Tribal history or culture. If so, are any effects likely to be minimal or not adverse? Does the likelihood of adverse effects depend on the circumstances of the collocation, for example whether it will cause new ground disturbance? The Commission also seeks comment on alternatives to streamline procedures for Tribal and NHO participation in these cases, for example different guidance on fees or deeming a Tribal Nation or NHO to have no interest if it does not respond to a notification within a specified period of time.

    54. Finally, the Commission seeks comment on whether the Commission can or should exclude from routine historic preservation review certain collocations that have received local approval. In particular, one possibility would be to exclude a collocation from Section 106 review, regardless of whether it is located on a historic property or in or near a historic district, provided that: (1) The proposed collocation has been reviewed and approved by a Certified Local Government that has jurisdiction over the project; or (2) the collocation has received approval, in the form of a Certificate of Appropriateness or other similar formal approval, from a local historic preservation review body that has reviewed the project pursuant to the standards set forth in a local preservation ordinance and has found that the proposed work is appropriate for the historic structure or district. By eliminating the need to go through historic preservation review at both local and Federal levels, creating an exclusion for collocations under these circumstances might create significant efficiencies in the historic preservation review process. The Commission seeks comment on this option and on any alternatives, including whether any additional conditions should apply and whether the process for engaging Tribal Nations and NHOs for these collocations should continue to be required.

    d. Scope of Undertaking and Action

    55. The Commission also invites comment on whether it should revisit its interpretation of the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. In the Pre-Construction Review Order, the Commission retained a limited approval authority over facility construction to ensure environmental compliance in services that no longer generally require construction permits (See Amendment of Environmental Rules, Report and Order, 5 FCC Rcd 2942 (1990) (Pre-Construction Review Order)). In light of the evolution of technology in the last 27 years and the corresponding changes in the nature and extent of wireless infrastructure deployment, the Commission seeks comment on whether this retention of authority is required and, if not, whether and how it should be adjusted. Commenters should address the costs of NEPA and NHPA compliance and its utility for environmental protection and historic preservation for different classes of facilities, as well as the extent of the Commission's responsibility to consider the effects of construction associated with the provision of licensed services under governing regulations and judicial precedent. For example, should facilities constructed under site-specific licenses be distinguished from those constructed under geographic area licenses? Can the Commission distinguish DAS and small cell facilities from larger structures for purposes of defining what constitutes the Commission's action or undertaking, and on what basis? Should review be required only when an EA triggering condition is met, as PTA-FLA suggests, and if so how would the licensee or applicant determine whether an EA is required in the absence of mandatory review? To the extent there is a policy basis for distinguishing among different types of facilities, would exclusions from or modifications to the NEPA and/or NHPA review processes be a more appropriate tool to reflect these differences? Are the standards for defining the scope of the Commission's undertaking or major Federal action different under the NHPA than under NEPA? The Commission also invites comment on whether to revisit the Commission's determination that registration of antenna structures constitutes the Commission's Federal action and undertaking so as to require environmental and historic preservation review of the registered towers' construction.

    56. In addition, since the Commission's environmental rules were adopted, an industry has grown of non-licensees that are in the business of owning and managing communications sites, so that most commercial wireless towers and even smaller communications support structures are now owned from the time of their construction by non-licensees. The Commission seeks comment on how this business model affects the Commission's environmental and historic preservation compliance regime. For example, how does the requirement to perform environmental and historic preservation review prior to construction apply when the licensee is not the tower owner? If the tower is built pursuant to a contract or other understanding with a collocator, what marketplace or other effects would result from interpreting the environmental obligation to apply to the licensee? What about cases where there is no such agreement or understanding? Does the requirement in the Collocation NPA to perform review for collocations on towers that did not themselves complete Section 106 review create problems in administration or market distortions where the owner of the underlying tower may not have been subject to the Commission's rules at the time of construction? The Commission invites comment on these and any related questions.

    3. Collocations on Twilight Towers

    57. There are a large number of towers that were built between the adoption of the Collocation NPA in 2001 and when the NPA became effective in 2005 that either did not complete Section 106 review or for which documentation of Section 106 review is unavailable. These towers are often referred to as “Twilight Towers.” The Commission seeks comment on steps the Commission should take to develop a definitive solution for the Twilight Towers issue. As the Commission undertakes this process, the Commission's goal remains to develop a solution that will allow Twilight Towers to be used for collocations while respecting the integrity of the Section 106 process. Facilitating collocations on these towers will serve the public interest by making additional infrastructure available for wireless broadband services and the FirstNet public safety broadband network. Moreover, facilitating collocations on existing towers will reduce the need for new towers, lessening the impact of new construction on the environment and on locations with historical and cultural significance.

    58. In particular, the Commission seeks comment on whether to treat collocations on towers built between March 16, 2001 and March 7, 2005 that did not go through Section 106 historic preservation review in the same manner as collocations on towers built prior to March 16, 2001 that did not go through review. Under this approach, collocations on such towers would generally be excluded from Section 106 historic preservation review, subject to the same exceptions that currently apply for collocations on towers built on or prior to March 16, 2001, i.e., collocations would be excluded from Section 106 review unless (1) the mounting of the antenna will result in a substantial increase in size of the tower; (2) the tower has been determined by the Commission to have an adverse effect on one or more historic properties; (3) the tower is the subject of a pending environmental review or related proceeding before the Commission involving compliance with Section 106 of the National Historic Preservation Act; or (4) the collocation licensee or the owner of the tower has received written or electronic notification that the Commission is in receipt of a complaint from a member of the public, a Tribal Nation, a SHPO or the ACHP that the collocation has an adverse effect on one or more historic properties. The Commission seeks comment on whether allowing collocations without individual Section 106 review in these circumstances would rapidly make available a significant amount of additional infrastructure to support wireless broadband deployment without adverse impacts. In particular, the Commission notes that the vast majority of towers that have been reviewed under the NPA have had no adverse effects on historic properties, and the Commission is aware of no reason to believe that Twilight Towers are any different in that regard. Moreover, these towers have been standing for 12 years or more and, in the vast majority of cases, no adverse effects have been brought to the Commission's attention.

    59. Although the Commission seeks comment on such an approach, the Commission is mindful of the concerns that have been expressed by Tribal Nations and SHPOs throughout the discussions on this matter that simply allowing collocations to proceed would not permit review in those cases where an underlying tower may have undetermined adverse effects. In particular, Tribal Nations have expressed concern that some of the towers that were constructed between 2001 and 2005 may have effects on properties of religious and cultural significance that have not been noticed because their people are far removed from their traditional homelands. The Commission seeks comment on these concerns. As an initial matter, the Commission seeks comment on the Commission's underlying assumption regarding the likelihood that Twilight Towers had in their construction or continue to have adverse effects that have not been noted. To the extent such effects exist, what is the likelihood that they could be mitigated, and what is the likelihood that a new collocation would exacerbate those effects?

    60. The Commission further seeks comment on any alternative approaches. For example, should the Commission considers a tower-by-tower process under which proposed collocations on Twilight Towers would trigger a streamlined, time-limited individual review, along the lines of the process discussed in the 2016 Twilight Towers draft term sheet? If the Commission were to adopt such an approach, what elements should be included? For example, some in the industry have recommended a tower-by-tower approach that is voluntary and allows tower owners to submit a tower for review as market conditions justify, involves same processes and systems that are used for new and modified towers, asks ACHP to direct SHPOs and Tribal Historic Preservation Officers (THPOs) to submit prompt comments on such towers, and imposes no monetary penalty on tower owners. The Commission seeks comment on whether to adopt this approach. Should towers be categorized, such that, for example, public safety towers receive priority for streamlined review? Alternatively, to what extent are there existing processes that function efficiently to allow collocations on Twilight Towers? Generally, given what the Commission says above about the text of the Commission's rule, the Commission does not anticipate taking any enforcement action or imposing any penalties based on good faith deployment during the Twilight Tower period.

    61. The Commission also seeks comment on the procedural vehicle through which any solution should be implemented. Would permitting collocation on Twilight Towers require either an amendment to the Collocation NPA or another program alternative under 36 CFR 800.14(b)? Is one form of program alternative preferable to another, and if so, why? If the Commission were to pursue a streamlined or other alternative review procedure, would that require an amendment to the Collocation NPA or other program alternative?

    4. Collocations on Other Non-Compliant Towers

    62. Finally, the Commission invites comment on whether the Commission should take any measures, and if so what, to facilitate collocations on non-compliant towers constructed after March 7, 2005. The Commission notes that unlike in the case of the Twilight Towers, the rules in effect when these towers were constructed explicitly required compliance with the review procedures set forth in the NPA. The Commission invites commenters to propose procedures, including review processes, time frames, criteria for eligibility, and other measures, to address any or all of these towers.

    II. Notice of Inquiry

    63. In this section, the Commission examines and seeks comment on the scope of Sections 253(a) and 332(c)(7) of the Communications Act and any new or updated guidance or determinations the Commission should provide pursuant to its authority under those provisions, including through the issuance of a Declaratory Ruling.

    A. Intersection of Sections 253(a) and 332(c)(7)

    64. Both Section 253(a) and Section 332(c)(7) ban State or local regulations that “prohibit or have the effect of prohibiting” service. Both sections also proscribe State and local restrictions that unreasonably discriminate among service providers. These sections thus appear to impose the same substantive obligations on State and local governments, though the remedies provided under each are different. There are court decisions holding that “the legal standard is the same under either [Section 253 or 332(c)(7)],” and that there is “nothing suggesting that Congress intended a different meaning of the text `prohibit or have the effect of prohibiting' in the two statutory provisions, enacted at the same time, in the same statute.” The Commission seeks comment on whether there is any reason to conclude that the substantive obligations of these two provisions differ, and if so in what way. Do they apply the same standards in the same or similar situations? Do they impose different standards in different situations? The Commission invites commenters to explain how and why. The Commission also seeks comment on the interaction between Sections 253 and 332(c)(7).

    B. “Prohibit or Have the Effect of Prohibiting”

    65. A number of courts have interpreted the phrase “prohibit or have the effect of prohibiting,” as it appears in both Sections 253(a) and 332(c)(7), but they have not been consistent in their views. Under Section 253(a), the First, Second, and Tenth Circuits have held that a State or local legal requirement would be subject to preemption if it may have the effect of prohibiting the ability of an entity to provide telecommunications services, while the Eighth and Ninth Circuits have erected a higher burden and insisted that “a plaintiff suing a municipality under Section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition.” By the same token, different courts have imposed inconsistent burdens of proof to establish that localities violated Section 332(c)(7) by improperly denying siting application. The First, Fourth, and Seventh Circuits have imposed a “heavy burden” of proof on applicants to establish a lack of alternative feasible sites, requiring them to show “not just that this application has been rejected but that further reasonable efforts to find another solution are so likely to be fruitless that it is a waste of time even to try.” By contrast, the Second, Third, and Ninth Circuits have held that an applicant must show only that its proposed facilities are the “least intrusive means” for filling a coverage gap in light of the aesthetic or other values that the local authority seeks to serve. The Commission invites commenters to address these issues of statutory interpretation so the Commission may have the benefit of a full range of views from the interested parties as the Commission determines what action, if any, the Commission should take to resolve them. The Commission also invites parties to address whether there is some new theory altogether that the Commission should consider.

    66. The Commission also seeks comment on the proper role of aesthetic considerations in the local approval process. The use of aesthetic considerations is not inherently improper; many courts have held that municipalities may, without necessarily violating Section 332(c)(7), deny siting applications on the grounds that the proposed facilities would adversely affect an area's aesthetic qualities, provided that such decisions are not founded merely on “generalized concerns” about aesthetics but are supported by “substantial evidence contained in a written record” about the impact of specific facilities on particular geographic areas or communities. The Commission seeks comment on whether it should provide more specific guidance on how to distinguish legitimate denials based on evidence of specific aesthetic impacts of proposed facilities, on the one hand, from mere “generalized concerns,” on the other.

    67. Finally, the Commission notes that WTB's Streamlining PN sought comment on application processing fees and charges for the use of rights of way. The Commission invites parties to comment on similar issues relating to the application of section 332(c)(7)'s “prohibit or have the effect of prohibiting” language on infrastructure siting on properties beyond rights of way. For instance, the Commission seeks comment on the up-front application fees that State or local government agencies impose on parties submitting applications for authority to construct or modify wireless facilities in locations other than rights of way. Can those fees, in some instances, “prohibit or have the effect of prohibiting” service? For instance, are those fees cost based? If commenters believe a particular State or locality's application fees are excessive, the Commission invites them to provide detailed explanations for that view and to explain how such fees might be inconsistent with section 332 of the Act. Relatedly, do wireless siting applicants pay fees comparable to those paid by other parties for similar applications, and if not, are there instances in which such fees violate section 332's prohibition of regulations that “unreasonably discriminate among providers of functionally equivalent services”?

    68. The Commission also seeks similar information about the recurring charges—as well as the other terms, conditions, or restrictions—that State or local government agencies impose for the siting of wireless facilities on publicly owned or controlled lands, structures such as light poles or water towers, or other resources other than rights of way. Do such fees or practices “prohibit or have the effect of prohibiting” service, or do they “unreasonably discriminate among providers of functionally equivalent services? Are there disparities between the charges or other restrictions imposed on some parties by comparison with those imposed on others? Do any agencies impose charges or other requirements that commenting parties believe to be particularly burdensome, such as franchise fees based on a percentage of revenues? Are other aspects of the process for obtaining approval particularly burdensome? Commenters should explain their concerns in sufficient detail to allow State and local governments to respond and to allow the Commission to determine whether it should provide guidance on these issues.

    C. “Regulations” and “Other Legal Requirements”

    69. The terms of Section 253(a) specify that a “statute,” “regulation,” or “other legal requirement” may be preempted, while the terms of Section 332(c)(7) refer to “decisions” concerning wireless facility siting and the “regulation” of siting. The Commission seeks comment on how those terms should be interpreted. For instance, do the terms “statute,” “regulation,” and “legal requirement” in Section 253(a) have essentially the same meaning as the parallel terms “regulation” and “decisions” in Section 332(c)(7)? The Commission has held in the past that the terminology in Section 253(a) quoted above “recognizes that State and local barriers to entry could come from sources other than statutes and regulations” and “was meant to capture a broad range of state and local actions” that could pose barriers to entry—including agreements with a single party that result in depriving other parties of access to rights of way. The Commission believes there is a reasonable basis for concluding that the same broad interpretation should apply to the language of Section 332, and the Commission seeks comment on this analysis.

    70. The Commission also seeks comment on the extent to which these statutory provisions apply to States and localities acting in a proprietary versus regulatory capacity, and on what constitutes a proprietary capacity. In the 2014 Infrastructure Order, the Commission opined that the Spectrum Act and the rules and policies implementing it apply to localities' actions on siting applications when acting in their capacities as land-use regulators, but not when acting as managers of land or property that they own and operate primarily in their proprietary roles. The Order cited cases indicating that “Sections 253 and 332(c)(7) do not preempt non-regulatory decisions of a State or locality acting in its proprietary capacity.” The Commission seeks comment on whether the Commission should reaffirm or modify the 2014 Infrastructure Order's characterization of the distinction between State and local governments' regulatory roles versus their proprietary roles as “owners” of public resources. How should the line be drawn in the context of properties such as public rights of way (e.g., highways and city streets), municipally-owned lampposts or water towers, or utility conduits? Should a distinction between regulatory and proprietary be drawn on the basis of whether State or local actions advance those government entities' interests as participants in a particular sphere of economic activity (proprietary), by contrast with their interests in overseeing the use of public resources (regulatory)? What about requests for proposals (RFPs) or contracts involving state or local entities? The Commission invites commenters to identify any States or local governments that have imposed restrictions on the installation of new facilities or the upgrading of existing facilities in public rights of way, and describe those restrictions and their impacts. Do such restrictions have characteristics or effects that are comparable to moratoria on processing applications?

    D. Unreasonable Discrimination

    71. The Commission seeks comment on whether certain types of facially neutral criteria that some localities may be applying when reviewing and evaluating wireless siting applications could run afoul of Section 253, Section 332(c)(7), or another provision of the Act. For instance, the Commission asks commenters to identify any State or local regulations that single out telecom-related deployment for more burdensome treatment than non-telecom deployments that have the same or similar impacts on land use, to explain how, and to address whether this type of asymmetric treatment violates Federal law.

    72. The Commission also seeks comment on the extent to which localities may be seeking to restrict the deployment of utility or communications facilities above ground and attempt to relocate electric, wireline telephone, and other utility lines in that area to underground conduits. Obviously, it is impossible to operate wireless network facilities underground. Undergrounding of utility lines seems to place a premium on access to those facilities that remain above ground, such as municipally-owned street lights. Is there a particular way that Section 253 or 332(c)(7) should apply in that circumstance? More generally, the Commission seeks comment on parties' experience with undergrounding requirements, including how wireless facilities have been treated in communities that require undergrounding of utilities. The Commission also seeks comment on whether and how the Communications Act applies in such instances. For instance, may localities deny applications to construct new above-ground wireless structures in such areas, or deny applications to install collocated equipment on structures that may eventually be dismantled? Could “undergrounding” plans “prohibit or have the effect of prohibiting” service by causing suitable sites for wireless antennas to become scarce? The Commission seeks comment on parties' experiences with undergrounding generally.

    73. Section 332(c)(7)(B)(i)(I) prohibits States and localities from unreasonably discriminating among providers of “functionally equivalent services.” The Commission seeks comment on whether parties have encountered such discrimination, and ask that they provide specific examples. The Commission also seeks comment on what constitutes “functionally equivalent services” for this purpose. For instance, should entities that are considered to be utilities be viewed as an appropriate comparison? For the limited purpose of applying Section 332(c)(7)(B)(i)(I), can wireless and wireline services be considered “functionally equivalent” in some circumstances? Which types of discrimination are reasonable and which are unreasonable?

    III. Procedural Matters A. Initial Regulatory Flexibility Analysis

    74. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities of the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided above. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

    1. Need for, and Objectives of, the Proposed Rules

    75. In this NPRM, the Commission examines how it may further remove or reduce regulatory impediments to wireless infrastructure investment and deployment in order to promote the rapid deployment of advanced mobile broadband service to all Americans. First, the NPRM seeks comment on certain measures or clarifications to expedite State and local processing of wireless facility siting applications pursuant to the Commission's authority under 332 of the Communications Act, including a “deemed granted” remedy in cases of unreasonable delay. Next, the Commission undertakes a comprehensive fresh look at the Commission's rules and procedures implementing the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (Section 106). As part of this review, the Commission seeks comment on potential measures to improve or clarify the Commission's Section 106 process, including in the area of fees paid to Tribal Nations in connection with their participation in the process, cases involving lack of response by relevant parties including affected Tribal Nations, and batched processing. The Commission also seeks comment on possible additional exclusions from Section 106 review, and the Commission reexamines the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. Finally, the NPRM seeks comment on so-called “Twilight Towers,” wireless towers that were constructed during a time when the process for Section 106 review was unclear, that may not have completed Section 106 review as a result, and that are therefore not currently available for collocation without first undergoing review. The Commission seeks comment on various options addressing Twilight Towers, including whether to exclude collocations on such towers from Section 106 historic preservation review, subject to certain exceptions, or alternatively subjecting collocations on Twilight Towers to a streamlined, time-limited review. The Commission expects the measures on which the Commission seeks comment in this NPRM to be only a part of the Commission's efforts to expedite wireless infrastructure deployment and the Commission invites commenters to propose other innovative approaches to expediting deployment.

    2. Legal Basis

    76. The authority for the actions taken in this NPRM is contained in Sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, and 332 of the Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 253, 301, 303, 309, and 332, Section 102(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306108.

    3. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

    77. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, the Commission provides a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

    78. The NPRM seeks comment on potential rule changes regarding State, local, and Federal regulation of the siting and deployment of communications towers and other wireless facilities. Due to the number and diversity of owners of such infrastructure and other responsible parties, particularly small entities that are Commission licensees as well as non-licensees, the Commission classifies and quantifies them in the remainder of this section. The NPRM seeks comment on the Commission's description and estimate of the number of small entities that may be affected by the Commission's actions in this proceeding.

    79. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive small entity size standards that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,215 small organizations. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data published in 2012 indicate that there were 89,476 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

    80. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

    81. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by the Commission's actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.

    82. Personal Radio Services. Personal radio services provide short-range, low-power radio for personal communications, radio signaling, and business communications not provided for in other services. Personal radio services include services operating in spectrum licensed under Part 95 of the Commission's rules. These services include Citizen Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio Service, and Multi-Use Radio Service. There are a variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning operation on successful completion of a required test, to site-based licensing, to geographic area licensing. All such entities in this category are wireless, therefore the Commission applies the definition of Wireless Telecommunications Carriers (except Satellite), pursuant to which the SBA's small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. The Commission notes that many of the licensees in this category are individuals and not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in many of these services, the Commission lacks direct information upon which to base an estimation of the number of small entities that may be affected by the Commission's actions in this proceeding.

    83. Public Safety Radio Licensees. Public Safety Radio Pool licensees as a general matter, include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. For this category the Commission applies the SBA's definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications and for which the small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, the Commission includes under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 3,121 licenses in the 4.9 GHz band, based on an FCC Universal Licensing System search of March 29, 2017. The Commission estimates that fewer than 2,442 public safety radio licensees hold these licenses because certain entities may have multiple licenses.

    84. Private Land Mobile Radio Licensees. Private land mobile radio (PLMR) systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a small business size standard specifically applicable to PLMR users. The SBA's definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications and for which the small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. According to the Commission's records, there are a total of 3,374 licenses in the frequencies range 173.225 MHz to 173.375 MHz, which is the range affected by this NPRM. The Commission does not require PLMR licensees to disclose information about number of employees, and does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. The Commission however believes that a substantial number of PLMR licensees may be small entities despite the lack of specific information.

    85. Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses.

    86. With respect to the first category, Profit-based Spectrum use, the size standards established by the Commission define “small entity” for MAS licensees as an entity that has average annual gross revenues of less than $15 million over the three previous calendar years. A “Very small business” is defined as an entity that, together with its affiliates, has average annual gross revenues of not more than $3 million over the preceding three calendar years. The SBA has approved these definitions. The majority of MAS operators are licensed in bands where the Commission has implemented a geographic area licensing approach that requires the use of competitive bidding procedures to resolve mutually exclusive applications. The Commission's licensing database indicates that, as of April 16, 2010, there were a total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with common carrier service. In addition, the Commission's licensing database indicates that, as of April 16, 2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission's licensing database also indicates that, as of April 16, 2010, of the 11,653 total MAS station authorizations, 10,773 authorizations were for private radio service. In 2001, an auction for 5,104 MAS licenses in 176 EAs was conducted. Seven winning bidders claimed status as small or very small businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses.

    87. With respect to the second category, Internal Private Spectrum use consists of entities that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the definition developed by the SBA would be more appropriate than the Commission's definition. The applicable definition of small entity is the “Wireless Telecommunications Carriers (except satellite)” definition under the SBA rules. Under that SBA category, a business is small if it has 1,500 or fewer employees. For this category, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by the Commission's action.

    88. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).

    89. BRS—In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

    90. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

    91. EBS—The SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, the Commission estimates that at least 2,336 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA's small business size standard for this category is all such firms having 1,500 or fewer employees. U.S. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small. To gauge small business prevalence for these cable services the Commission must, however, use the most current census data for the previous category of Cable and Other Program Distribution and its associated size standard which was all such firms having $13.5 million or less in annual receipts. According to U.S. Census Bureau data for 2007, there were a total of 996 firms in this category that operated for the entire year. Of this total, 948 firms had annual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.

    92. Location and Monitoring Service (LMS). LMS systems use non-voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined a “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million. A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $3 million. These definitions have been approved by the SBA. An auction for LMS licenses commenced on February 23, 1999 and closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.

    93. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of $25,000,000 or less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70 had annual receipts of $50,000,000 or more. Based on this data the Commission therefore estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

    94. The Commission has estimated the number of licensed commercial television stations to be 1,384. Of this total, 1,264 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on February 24, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 394. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

    95. The Commission notes, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive.

    96. Radio Stations. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.” The SBA has established a small business size standard for this category as firms having $38.5 million or less in annual receipts. Economic Census data for 2012 shows that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Therefore, based on the SBA's size standard the majority of such entities are small entities.

    97. According to Commission staff review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of June 2, 2016, about 11,386 (or about 99.9 percent) of 11,395 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial radio stations to be 11,415. The Commission notes that it has also estimated the number of licensed NCE radio stations to be 4,101. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

    98. The Commission also notes, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a “small business,” an entity may not be dominant in its field of operation. The Commission further notes, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on these basis, thus the Commission's estimate of small businesses may therefore be over-inclusive.

    99. FM Translator Stations and Low Power FM Stations. FM translators and Low Power FM Stations are classified in the category of Radio Stations and are assigned the same NAICS Code as licensees of radio stations. This U.S. industry, Radio Stations, comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard which consists of all radio stations whose annual receipts are $38.5 million dollars or less. U.S. Census data for 2012 indicate that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Based on U.S. Census data, the Commission concludes that the majority of FM Translator Stations and Low Power FM Stations are small.

    100. Multichannel Video Distribution and Data Service (MVDDS). MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. These definitions were approved by the SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status.

    101. Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” The category has a small business size standard of $32.5 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, the Commission estimates that the majority of satellite telecommunications providers are small entities.

    102. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Thus, a majority of “All Other Telecommunications” firms potentially affected by the Commission's action can be considered small.

    103. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), the 39 GHz Service (39 GHz), the 24 GHz Service, and the Millimeter Wave Service where licensees can choose between common carrier and non-common carrier status. The SBA nor the Commission has defined a small business size standard for microwave services. For purposes of this IRFA, the Commission will use the SBA's definition applicable to Wireless Telecommunications Carriers (except satellite)—i.e., an entity with no more than 1,500 persons is considered small. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012, show that there were 967 firms in this category that operated for the entire year. Of this total, 955 had employment of 999 or fewer, and 12 firms had employment of 1,000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by the Commission's proposed action.

    104. According to Commission data in the Universal Licensing System (ULS) as of September 22, 2015 there were approximately 61,970 common carrier fixed licensees, 62,909 private and public safety operational-fixed licensees, 20,349 broadcast auxiliary radio licensees, 412 LMDS licenses, 35 DEMS licenses, 870 39 GHz licenses, and five 24 GHz licenses, and 408 Millimeter Wave licenses in the microwave services. The Commission notes that the number of firms does not necessarily track the number of licensees. The Commission estimates that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition.

    105. Non-Licensee Owners of Towers and Other Infrastructure. Although at one time most communications towers were owned by the licensee using the tower to provide communications service, many towers are now owned by third-party businesses that do not provide communications services themselves but lease space on their towers to other companies that provide communications services. The Commission's rules require that any entity, including a non-licensee, proposing to construct a tower over 200 feet in height or within the glide slope of an airport must register the tower with the Commission's Antenna Structure Registration (ASR) system and comply with applicable rules regarding review for impact on the environment and historic properties.

    106. As of March 1, 2017, the ASR database includes approximately 122,157 registration records reflecting a ”Constructed” status and 13,987 registration records reflecting a “Granted, Not Constructed” status. These figures include both towers registered to licensees and towers registered to non-licensee tower owners. The Commission does not keep information from which the Commission can easily determine how many of these towers are registered to non-licensees or how many non-licensees have registered towers. Regarding towers that do not require ASR registration, the Commission does not collect information as to the number of such towers in use and therefore cannot estimate the number of tower owners that would be subject to the rules on which the Commission seeks comment. Moreover, the SBA has not developed a size standard for small businesses in the category “Tower Owners.” Therefore, the Commission is unable to determine the number of non-licensee tower owners that are small entities. The Commission believes, however, that when all entities owning 10 or fewer towers and leasing space for collocation are included, non-licensee tower owners number in the thousands, and that nearly all of these qualify as small businesses under the SBA's definition for “All Other Telecommunications.” The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Thus, a majority of “All Other Telecommunications” firms potentially affected by the Commission's action can be considered small. In addition, there may be other non-licensee owners of other wireless infrastructure, including DAS and small cells, that might be affected by the measures on which the Commission seeks comment. The Commission does not have any basis for estimating the number of such non-licensee owners that are small entities.

    4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

    107. The NPRM seeks comment on potential rule changes that may affect reporting, recordkeeping and other compliance requirements. Specifically the NPRM seeks comment on a specific NHPA submission process known as batching. Currently, a streamlined process for certain facilities associated with building out the Positive Train Control (PTC) railroad safety system is in effect whereby eligible facilities may be submitted to State Historic Preservation Officers (SHPOs) and through the Tower Construction Notification System (TCNS) in batches instead of individually. The NPRM seeks comment on whether the Commission should require SHPOs and Tribal Historic Preservation Officers (THPOs) to review non-PTC facilities in batched submissions as well. If adopted, this may require modifications to reporting or other compliance requirements for small entities and or jurisdictions to enable such submissions. The Commission anticipates that batch rather than individual submissions will add no additional burden to small entities and may reduce the cost and delay associated with the deployment of wireless infrastructure. In addition, the NPRM seeks comment on whether the current Section 106 process can be revised in a manner that would permit applicants to self-certify their compliance with the Commission's Section 106 process and therefore proceed once they meet the Commission's notification requirements, without requiring Commission involvement. This self-certifying process may also require additional reporting or other compliance requirements for small entities. Similarly, the Commission anticipates that a self-certification process will reduce the cost and delay associated with the deployment of wireless infrastructure for small entities by expediting the current Section 106 process.

    5. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered

    108. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

    109. In this proceeding, the Commission seeks to examine regulatory impediments to wireless infrastructure investment and deployment, and how the Commission may remove or reduce such impediments consistent with the law and the public interest. The Commission anticipates that the steps on which the NPRM seeks comment will help reduce burdens on small entities that may need to deploy wireless infrastructure by reducing the cost and delay associated with the deployment of such infrastructure. As discussed below, however, certain proposals may impose regulatory compliance costs on small jurisdictions.

    110. The NPRM seeks comment on potential ways to expedite wireless facility deployment. First, it seeks comment on certain measures or clarifications to expedite State and local processing of wireless facility siting applications pursuant to the Commission's authority under Section 332 of the Communications Act. Specifically, the NPRM proposes to adopt one or more of three mechanisms for implementing a “deemed granted” remedy for State and local agencies' failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act, including irrebuttable presumption, lapse of State and local governments' authority, and a preemption rule. The NPRM also seeks comment on how to quantify a “reasonable period of time” within which to act on siting applications. Specifically, the NPRM asks commenters to discuss whether the Commission should consider adopting different time frames for review of facility deployments not covered by Section 6409 of the Spectrum Act, by identifying more narrowly defined classes of deployments and distinct reasonable time frames to govern such classes. The NPRM also seeks comment on what time periods would be reasonable (outside the Spectrum Act context) for any new categories of applications, and on what factors the Commission should consider in making such a decision. The NPRM also seeks comment on whether the Commission should provide further guidance to address situations in which it is not clear when the shot clock should start running, or in which States and localities on one hand, and industry on the other, disagree on when the time for processing an application begins, and on whether there are additional steps that should be considered to ensure that a deemed granted remedy achieves its purpose of expediting review.

    111. In addition, the NPRM seeks comment on Moratoria. The Commission clarified in the 2014 Infrastructure Order that the shot clock deadline applicable to each application “runs regardless of any moratorium.” The NPRM asks commenters to submit specific information about whether some localities are continuing to impose moratoria or other restrictions on the filing or processing of wireless siting applications, including identification of the specific entities engaging in such actions and description of the effect of such restrictions on parties' ability to deploy network facilities and provide service to consumers. The NPRM also proposes to take any additional actions necessary, such as issuing an order or declaratory ruling providing more specific clarifications of the moratorium ban or preempting specific State or local moratoria. The proposed measures should reduce existing regulatory costs for small entities that construct or deploy wireless infrastructure. The Commission invites commenters to discuss the economic impact of any of these proposed measures on small entities, including small jurisdictions, and on any alternatives that would reduce the economic impact on such entities.

    112. Second, the NPRM undertakes a fresh look at the Commission's rules and procedures implementing NEPA and the NHPA as they relate to the Commission's implementation of Title III of the Act in the context of wireless infrastructure deployment. The NPRM seeks comment on potential measures in several areas that could improve the efficiency of the Commission's review under the NHPA and NEPA, including in the areas of fees, addressing delays, and batched processing. Specifically, the NPRM seeks comment on the costs, benefits, and time requirements associated with the historic preservation review process under Section 106 of the NHPA, including SHPO and Tribal Nation review, as well as on the costs and relative benefits of the Commission's NEPA rules. The NPRM also seeks comment on potential process reforms regarding Tribal Fees, including fee amounts, when fees are requested, the legal framework of potential fee schedules, the delineation of Tribal Nation's geographic area of interest, and on potential remedies, dispute resolution, and possible negotiated alternatives.

    113. The NPRM then seeks comment on other possible reforms to the Commission's NHPA process that may make it faster, including time limits and self-certification when no response to a Section 106 submission is provided, on whether the Commission should require SHPOs and THPOs to review non-PTC facilities in batched submissions, and if so, how such a process should work and what sort of facilities would be eligible, and finally, whether there are additional procedural changes that the Commission should consider to improve the Section 106 review process in a manner that does not compromise its integrity.

    114. Further, the NPRM seeks comment on ways to improve and further streamline the Commission's environmental compliance regulations while ensuring the Commission meets its NEPA obligations. Toward that end, the NPRM seeks comment on whether to revise the Commission's rules so that an EA is not required for siting in a floodplain when appropriate engineering or mitigation requirements have been met and on whether to expand the categories of undertakings that are excluded from Section 106 review, to include pole replacements, deployments in rights-of-way, and collocations based on their minimal potential to adversely affect historic properties. The NPRM also seeks comment on whether the Commission should revisit the Commission's interpretation of the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. These potential changes to the Commission's rules and procedures implementing NEPA and the NHPA would reduce environmental compliance costs on entities that construct or deploy wireless infrastructure. These potential revisions are likely to provide an even greater benefit for small entities that may not have the compliance resources and economies of scale of larger entities. The Commission invites comment on ways in which the Commission can achieve its goals, but at the same time further reduce the burdens on small entities.

    115. Third, the NPRM seeks comment on steps the Commission should take to develop a definitive solution for the Twilight Towers issue that will allow Twilight Towers to be used for collocations while respecting the integrity of the Section 106 process. Facilitating collocations on these towers will serve the public interest by making additional infrastructure available for wireless broadband services and the FirstNet public safety broadband network, as well as reduce the need for new towers, lessening the impact of new construction on the environment and on locations with historical and cultural significance, thereby reducing the associated regulatory burden, particularly the burden on small entities.

    116. In particular, the NPRM seeks comment on whether to treat collocations on towers built between March 16, 2001 and March 7, 2005 that did not go through Section 106 historic preservation review in the same manner as collocations on towers built prior to March 16, 2001 that did not go through review. Under this approach, collocations on such towers would generally be excluded from Section 106 historic preservation review, subject to the same exceptions that currently apply for collocations on towers built on or prior to March 16, 2001. The Commission seeks comment on whether allowing collocations without individual Section 106 review in these circumstances would rapidly make available a significant amount of additional infrastructure to support wireless broadband deployment without adverse impacts. The NPRM also seeks comment on any alternative approaches and on the procedural vehicle through which any solution should be implemented. Finally, the NPRM invites comment on what measures, if any, should be taken to facilitate collocations on non-compliant towers constructed after March 7, 2005, including whether the Commission should pursue an alternative review process, or any other alternative approach, for any or all of these towers. These proposals would reduce the environmental compliance costs associated with collocations, especially for small entities that have limited financial resources. The Commission invites commenters to discuss the economic impact of any of the proposals for the solution to the Twilight Towers issue on small entities, including small jurisdictions, and on any alternatives that would reduce the economic impact on such entities.

    117. For the options discussed in this NPRM, the Commission seeks comment on the effect or burden of the prospective regulation on small entities, including small jurisdictions, the extent to which the regulation would relieve burdens on small entities, and whether there are any alternatives the Commission could implement that could achieve the Commission's goals while at the same time minimizing or further reducing the burdens on small entities.

    6. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    118. None.

    B. Initial Paperwork Reduction Act Analysis

    119. This document contains proposed 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 (OMB) 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, the Commission seeks specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    C. Other Procedural Matters 1. Ex Parte Rules—Permit-But-Disclose

    120. Except to the limited extent described in the next paragraph, this proceeding shall 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 section 1.1206(b) of the Commission's rules. In proceedings governed by section 1.49(f) of the Commission's rules 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.

    121. In light of the Commission's trust relationship with Tribal Nations and Native Hawaiian Organizations (NHOs), and the Commission's obligation to engage in government-to-government consultation with them, the Commission finds that the public interest requires a limited modification of the ex parte rules in this proceeding. Tribal Nations and NHOs, like other interested parties, should file comments, reply comments, and ex parte presentations in the record in order to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process. But the Commission will exempt ex parte presentations involving elected and appointed leaders and duly appointed representatives of federally-recognized Tribal Nations and NHOs from the disclosure requirements in permit-but-disclose proceedings and the prohibitions during the Sunshine Agenda period. Specifically, presentations from elected and appointed leaders or duly appointed representatives of federally-recognized Tribal Nations or NHOs to Commission decision makers shall be exempt from disclosure. To be clear, while the Commission recognizes that consultation is critically important, the Commission emphasizes that the Commission will rely in its decision-making only on those presentations that are placed in the public record for this proceeding.

    IV. Ordering Clauses

    122. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, and 332 of the Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 253, 301, 303, 309, and 332, Section 102(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306108, that this Notice of Proposed Rulemaking and Notice of Inquiry is hereby adopted.

    123. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2017-09431 Filed 5-9-17; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR 1, 15, 20, and 54 [GN Docket No. 16-46; FCC 17-46] FCC Seeks Comment and Data on Actions To Accelerate Adoption and Accessibility of Broadband-Enabled Health Care Solutions and Advanced Technologies AGENCY:

    Federal Communications Commission.

    ACTION:

    Request for comments.

    SUMMARY:

    The Federal Communications Commission (FCC) seeks comment, data, and information on a variety of regulatory, policy, and infrastructure issues related to the emerging broadband-enabled health and care ecosystem. The FCC seeks to ensure that consumers—from major cities to rural and remote areas, Tribal lands, and underserved regions—can access potentially lifesaving health technologies and services, like telehealth and telemedicine, which are enabled by broadband connectivity. The anticipated record will allow the Commission and its Connect2HealthFCC Task Force (Task Force) to gain a broader understanding about the current state of broadband health connectivity. The record will also be used by the Task Force to make future recommendations to the Commission.

    DATES:

    Submit comments on or before May 24, 2017, and reply comments on or before June 8, 2017.

    ADDRESSES:

    You may submit comments, identified by GN Docket No. 16-46, by any of the following methods:

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/ (click the “submit a filing” tab). Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, in completing the transmittal screen, filers should include their full name, U.S. Postal service mailing address, and the applicable docket number: GN Docket No. 16-46.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. Filings can 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, Marlene H. Dortch, 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 St. 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. The filing hours are 8:00 a.m. to 7:00 p.m. 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 mail, Express Mail, and Priority Mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    Additional Filing Instruction: To the extent feasible, parties should email a copy of their comments to the Task Force's email box, at [email protected] In the email, please insert “Comments in GN Docket No. 16-46” in the subject line. Copies of all filings will be available in GN Docket No. 16-46 through ECFS and are also available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th St. SW., Room CY-A257, Washington, DC 20554, telephone (202) 418-0270. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

    People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY). Contact the FCC to request reasonable accommodations for filing comments (accessible format documents, sign language interpreters, CART, etc.) by email at: [email protected]; phone: 202-418-0530 or TTY: 202-418-0432.

    FOR FURTHER INFORMATION CONTACT:

    For further information about this Document, please contact Ben Bartolome, Special Counsel, Connect2HealthFCC Task Force, at (770) 935-3383, or via email at [email protected] (inserting “Question re GN Docket No. 16-46” in the subject line). Press inquiries should be directed to Katie Gorscak, Communications Director, Connect2HealthFCC Task Force, at (202) 418-2156, or via email at [email protected] For additional information about the Connect2HealthFCC Task Force, please visit the FCC's broadband health hub at http://www.fcc.gov/health.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's document, FCC 17-46, in GN Docket No. 16-46, released on April 24, 2017. The full text of this document is available on the Internet at the Commission's Web site, at https://www.fcc.gov/document/fcc-seeks-comment-accelerating-broadband-health-tech-availability; and it is also accessible from the Connect2HealthFCC Task Force's Web page, at https://www.fcc.gov/health/public-notice. The full text is also available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 (Telephone: 202-418-0270; TTY: 202-418-2555).

    Overview

    Broadband networks are increasingly important to our national well-being and everyday lives. As such, we must maximize their availability and ensure that all Americans can take advantage of the variety of services that broadband enables, including 21st century health care. In this Document, the FCC seeks information on how it can help enable the adoption and accessibility of broadband-enabled health care solutions, especially in rural and other underserved areas of the country. We expect to use this information to identify actions that the Commission can take to promote this important goal.

    Ensuring that everyone is connected to the people, services, and information they need to get well and stay healthy is an important challenge facing our nation. Technology innovations in clinical practice and care delivery coupled with burgeoning consumer reliance on mHealth and health information technology (or healthIT) are fundamentally changing the face of health care, and a widespread, accessible broadband infrastructure is critical to this ongoing shift. Indeed, the future of modern health care appears to be fundamentally premised on the widespread availability and accessibility of high-speed connectivity. By some estimates, broadband-enabled health information technology can help to improve the quality of health care and significantly lower health care costs by hundreds of billions of dollars in the coming decades. However, the United States remains behind some advanced countries in the adoption of such technology.

    As discussed in this Document, the Commission plays an important role in improving the quality of health care and enabling health care innovation through the universal service program, spectrum licensing, and other activities. In order to perform these and other important roles in the health technology space, the Commission should continue to evaluate the nation's broadband health infrastructure and to understand the ongoing technology-based transformation in health care delivery. This will better assure that consumers—from major cities to rural and remote areas, Tribal lands, and underserved regions—can access potentially lifesaving health technologies and services, like telehealth and telemedicine. Leading this effort on behalf of the agency is its Connect2HealthFCC Task Force. Among other things, the Task Force is charged with charting the broadband future of “health and care” in order to ensure that the agency stays ahead of the health technology curve. We use the phrase “health and care” deliberately in this Document to reflect and include the broad range of participants in the emerging broadband health ecosystem, including providers (e.g., health systems, community health centers, clinicians, pharmacists, nutritionists, allied health professionals); public health and social service agencies and organizations; innovators and entrepreneurs; academic and research facilities; state and local policymakers; patients and their caregivers; as well as consumers who seek support to prevent disease and maintain optimum health.

    This Document seeks comment, data, and information on a broad range of regulatory, policy, technical, and infrastructure issues related to the emerging broadband-enabled health and care ecosystem. Commenters should address the agency's authority on all issues raised in this Notice. The comment, data, and information requested are intended to provide the Commission with a broader understanding and perspective on the current state of broadband health technology and other related issues; and it will also inform the Task Force's work and recommendations.

    The Broadband Health Imperative

    Broadband holds promise for enabling health care solutions and advanced technologies that can help to meet America's growing health care needs. Health care accounts for a significant percentage of the U.S. gross domestic product and health care costs are projected to increase. Studies confirm that the United States has a serious health care supply problem. By some estimates, the country could face a shortage of up to 94,700 physicians by 2025, and the forecast is worse for rural communities. The healthcare provider shortfall is likely to disproportionately affect rural and remote areas which are already medically-underserved.

    At the same time, demand for health care services is increasing. Today, over 320 million people in the United States could, at any time, utilize health care services, with one person added every 12 seconds (net), yet we only have approximately 280,000 primary care physicians to meet the needs. By the year 2060, the number of people living in the United States is projected to increase by 100 million (resulting in a total of 425+ million people), further exacerbating the projected physician shortage concern. To further complicate matters, over 100 million Americans are dealing with chronic diseases and conditions (e.g., heart disease, stroke, cancer, obesity, diabetes, and arthritis); and despite best efforts, health care disparities persist across various geographic regions and ethnic groups. While many individuals struggle with one chronic illness, older Americans often face from two to as many as five chronic diseases at the same time. By 2030, one out of every five Americans (or 71 million) will be over the age of 65, and 20 million will be over the age of 80.

    While broadband is not a complete answer, there are a growing number of broadband-enabled solutions that can play an important role in improving population health; addressing health needs beyond the hospital; expanding access to primary, acute, preventive and specialist care, especially for those Americans living in rural and underserved areas; providing more cost-effective solutions; improving the quality of care; and better engaging consumers in their health. Put simply, health care is being transformed by the availability and accessibility of broadband-enabled services and technologies and the development of life-saving wireless medical devices.

    Indeed, we are already realizing some of the tremendous benefits that broadband-enabled health technologies and innovative wireless medical devices have to offer: Electronic Health Record (EHR) systems can track and transmit vast amounts of patient clinical data. X-rays, MRIs, and CAT scans can be transmitted seamlessly to specialists at a distant hospital. Telemedicine and telehealth programs and services provide opportunities to close access to care gaps and facilitate specialized training. Medical providers are able to prescribe medications electronically, saving time and money. Surgeons are able to perform operations miles away from patients via robotics. Self-service health kiosks are becoming increasingly available at pharmacies and grocery chains, providing additional access points for primary care and disease screenings. Remote patient monitoring applications and services are reducing hospital readmissions as well as travel and associated expenses for patients. Mobile devices like smartphones and personal data assistants are transforming the way physicians manage patient care; they are also empowering and engaging consumers to take a more active role in managing their own health. Implant or body-worn monitoring, therapeutic, and treatment technologies include wireless blood glucose monitors and automated insulin pumps. “Ingestibles” and “smart pills” (broadband-enabled digital tools that are swallowed by the patient) use wireless technology to monitor internal reactions in real-time, dispense medication, and provide other granular health data.

    Veterans, in particular, have seen tangible benefits from telemedicine. Most notably, critical mental health services are now accessible via telemedicine to those veterans living in rural areas or abroad. In fiscal year 2014, more than 690,000 military veterans accessed the U.S. Department of Veterans Administration's (VA) health care network using telemedicine programs, reflecting more than 1.7 million episodes of care. The Veterans Health Administration notes that “[telemedicine] technology is now considered `mission critical' for effectively delivering quality healthcare to veterans, particularly for those in rural or underserved areas.”

    These are just some of the opportunities that broadband-enabled services and health-related communications technologies and devices offer, especially for those living in rural and underserved areas, low density populations, and Tribal lands; for older Americans; persons with disabilities; military veterans; and the economically disadvantaged—all of whom have traditionally faced significant health and care challenges. We endeavor to foster the development and accessibility of these and other emerging communications-based technologies throughout the country. The work ahead, however, can only be successful if it combines the efforts of all levels of government, industry, innovators and entrepreneurs, academia, consumers, and the health care community. Accordingly, we seek broad public and private stakeholder input and collaboration on the issues discussed below.

    Request for Comment and Data

    As part of its charge, the Connect2HealthFCC Task Force is focused on the following objectives: (1) Promoting effective policy and regulatory solutions that encourage broadband adoption and promote health IT; (2) identifying regulatory barriers (and incentives) to the deployment of radio frequency (RF)-enabled advanced health care technologies and devices; (3) strengthening the nation's telehealth infrastructure through the FCC's Rural Health Care Program and other initiatives; (4) raising consumer awareness about the value proposition of broadband in the health care sector and its potential for addressing health care disparities; (5) enabling the development of broadband-enabled health technologies that are designed to be fully accessible to people with disabilities; (6) highlighting effective telehealth projects, broadband-enabled health technologies, and mHealth applications across the country and abroad—to identify lessons learned, best practices, and regulatory challenges; and (7) engaging a diverse array of traditional and non-traditional stakeholders to identify emerging issues and opportunities in the broadband health space.

    To continue evaluating these and other challenges, we request that stakeholders and other interested parties provide comment, information, and/or data on the issues and subject matter described below. This Notice seeks the most current information available that is specifically relevant to the intersection of broadband, advanced technology, and health care in view of the aforementioned Task Force objectives. For convenience, the issues for comment are enumerated; and we request that parties, in their submission, identify the enumerated issue to which their written response pertains. We also encourage parties to identify any other relevant issues not covered below.

    Objective I: Promote Effective Policy and Regulatory Solutions That Encourage Broadband Adoption and Promote Health IT

    Broadband and advanced technologies appear increasingly critical to the effective transformation of our health care system. First, these technologies enable the efficient exchange of patient and treatment information by allowing providers to access patients' electronic health records from on-site or hosted locations. Second, in many cases it can remove geography and time as barriers to care by enabling telehealth and telemedicine applications like video consultations and remote patient monitoring. Third, broadband provides a foundation for the next generation of medical devices, as well as other health innovation and connected-care solutions. Finally, broadband-enabled health IT offers real opportunities for consumers to take charge of their own health.

    To ensure that these and other benefits continue to accrue and expand, it is critical that we identify and engage in appropriate efforts to address any current and emerging issues of concern. In this regard, we note that there are some broad policy measures that, if implemented, could accelerate broadband deployment generally, and thereby provide greater access to broadband-enabled health technologies, solutions and services, especially for those consumers living in rural and underserved areas of the country. A prime example is the possible establishment of “Gigabit Opportunity Zones.” In September 2016, FCC Chairman Ajit Pai, as part of his Digital Empowerment Agenda for accelerating the deployment of high-speed Internet access, called on Congress to provide tax and other financial incentives for the private sector to deploy gigabit broadband services in low income neighborhoods, which he referred to as “Gigabit Opportunity Zones.” More recently, the Commission created the Broadband Deployment Advisory Committee (BDAC) to provide the Commission advice on, among other things, accelerating broadband deployment, identifying regulatory barriers to infrastructure investment, and making recommendations for reducing and/or removing regulatory barriers. We now seek additional and specific data regarding the pace of deployment and adoption of broadband for health and in health care. As detailed below, we also invite input on policies or initiatives that the FCC could implement to further spur deployment and adoption of broadband services, especially in critical need areas at the intersection of health and broadband (e.g., the counties identified in the Connect2HealthFCC Task Force's Priority 100 and Rural 100 lists).

    1. We request suggestions regarding ways in which the FCC, based on its authority, can further accelerate broadband adoption in the health care context and promote broadband-enabled health IT solutions, either on its own or working in collaboration with other agencies, and, at the same time, ensure that such services and technologies are fully available and accessible to all Americans, including those living in rural and remote areas, low density populations, Tribal lands, and in underserved urban areas of our country. We also seek comment on what impediments to these efforts exist, and how the FCC can address them.

    2. We request information and data on the types, impact, scale, and benefits of broadband-enabled services and technologies used for the delivery of health care. How is broadband currently being used to augment or transform existing health care delivery? What types of health care settings are using broadband-enabled services and technologies besides large medical hospitals? What variety of medical issues are they used for? Where are these health care settings located? What are some of the future plans for using broadband-enabled health services and technologies—not just by clinicians and hospitals but also by other participants in the broader health ecosystem?

    3. We are also interested in learning how health technologies and services can take advantage of new technological applications and emerging communications networks. For example, what impact will the Internet of Things (IoT) have on broadband-enabled health technologies and services such as telehealth and telemedicine? To what extent will pervasive connectivity and a fully connected environment around individuals (e.g., IoT) shift the point of care delivery? How might the demands on broadband networks evolve in this new environment? What, if any, changes are anticipated in existing broadband-enabled health services and technologies—operating over current mobile networks—when 5G (Fifth Generation Mobile and Wireless Networks) becomes available? To what extent might telehealth and telemedicine be impacted by the availability of 5G networks? What medical device innovations are anticipated to be developed using 5G networks?

    4. What technical issues concerning the variety of broadband-enabled health care solutions and technologies are appropriate and necessary for the FCC to consider with respect to efforts to accelerate broadband adoption and promote health IT solutions? Are there issues of concern with respect to access, availability, interoperability, capacity, reliability, privacy, security, and speed? If so, please describe them. Does consideration of any of these issues vary depending on the technology platform—e.g., digital subscriber line (DSL), cable, fiber, wireless, or satellite?

    5. We seek to better understand health care providers' connectivity requirements. What type of connectivity (e.g., wired or wireless; fixed or mobile) is necessary to support the deployment of health IT applications today and in the near future at the different types of health care delivery settings (e.g., tertiary care centers versus primary care physician practices, larger physician groups, clinics, hospitals, as well as “hospital in the home” settings).

    a. What are the minimum bandwidth and speed requirements for the different types of health IT applications available today and in the near future for clinical and non-clinical settings? We also seek comment on bandwidth constraints brought on by increased overall usage as well as the impact of data intensive medical applications. Are there future technologies or applications on the horizon that could be bandwidth intensive? If so, what are they, and to what extent could compression and other technologies provide a solution for such future technologies or applications?

    b. Some evidence suggests that real-time image manipulation and video (e.g., telestroke and tele-emergency applications) will stimulate demand for more and better broadband and at lower prices. Are there current issues concerning network speeds and delays for these types of services? Do mobile health applications present unique considerations in terms of coverage, reliability, and security? We seek suggestions on whether, and if so, how the Commission could address these issues.

    c. To what extent do rural communities and Tribal lands have access to Internet connection speeds that are sufficient to support the effective and efficient transmission of data and video to provide telehealth, telemedicine, and other broadband health technology services?

    d. What, if any, interoperability, capacity, reliability, security, and speed issues currently exist for wireless (i.e., radiofrequency (RF)-based) medical devices used by patients in both clinical and non-clinical settings (e.g., at home); and for healthcare providers with respect to the provision of broadband-enabled health technologies, like telehealth and telemedicine services? Are there other technical issues appropriate for the Commission to consider?

    e. What impediments, if any, exist in trying to retrofit existing and future health care facilities (e.g., hospitals and clinics) for broadband-enabled services and technologies, given current connectivity needs and the existence of varied spectrum environments? Do current designs take into consideration any potential interference concerns with projected wireless networks and devices that will be used in these facilities? Are there (or should there be) industry standards or best practices for ensuring that new health care facilities consider broadband in their design and account for any necessary conduits, wiring, building configuration, and materials (e.g., there may be a need to consider certain materials for internal or external walls to better enable wireless broadband within a facility or to limit RF into a building) at the design and construction phase?

    6. We seek to understand the full range of issues that might be affecting the development and adoption of broadband-enabled technology and services in health care. What non-technical impediments or issues currently exist in the provision of broadband-enabled health technology services? Are there any circumstances or practical considerations (e.g., cost, funding, and training) that may be creating disincentives for clinicians and health care settings to offer broadband-enabled health services and technologies, such as telehealth and telemedicine? If so, please describe what they are, including the extent and nature of the Commission's authority to address them.

    7. What efforts are being made at the state and local levels to address broadband health technology accessibility issues in rural and remote areas, Tribal lands, and underserved urban areas? We seek specific information, particularly from states, localities, Tribal governments, and rural and urban medical centers, about any broadband-enabled health IT programs that have been developed and implemented (or will soon be implemented) to reach these areas. How successful have those programs been? What are some of the lessons learned in developing those programs? What programs and other efforts are necessary to drive attention to those rural and underserved populations that need health technologies most? How can the Commission better facilitate the deployment of services and technologies as well as consumer adoption in those areas?

    8. We seek suggestions on ways the Task Force can effectively and efficiently identify any gaps in the availability of broadband-enabled health technologies in the country. We request any information, data, or studies that can better inform the Task Force as to where broadband-enabled health services and technologies are critically needed in the country but are insufficient or unavailable. Why do these availability gaps exist? Maps and data—including those commissioned by or for states or localities—would be particularly helpful. In August of 2016, the Task Force launched one such broadband health analytics tool—the Mapping Broadband Health in America platform—to allow stakeholders to more easily analyze and study the intersection between connectivity and health for every state and county in the United States. While the response to the platform—from other federal agencies, as well as private organizations and industry—has been uniformly positive, with some already using the mapping platform to improve data-driven decision-making around broadband health-related policies and initiatives, we seek additional stakeholder input. How can we further improve the analytic platform to encourage investment in broadband health networks in areas with the greatest health and connectivity needs? If we wanted to refine the tool to identify potential partnerships among health care providers or between health care providers and broadband service providers, what is the best way to achieve that goal?

    9. What are the impediments to making health IT and other broadband health technology services available and ubiquitous in rural and remote areas, low population density areas, Tribal lands, and underserved urban sectors? Are there any unique challenges that persist in these areas; if so, what are they? In particular, we seek comment on any deployment, infrastructure, geographic, expertise (e.g., the availability and adequacy of IT expertise), telecommunications carrier availability, cost, and any other challenges in these areas. We seek suggestions for how to address such challenges, including on any rule and/or policy changes that the Commission should consider.

    Objective II: Identify Regulatory Barriers (and Incentives) to the Deployment of RF-Enabled Advanced Health Care Technologies and Devices

    The Commission has a long history of addressing spectrum needs for the development of next- generation health technologies and medical devices, and of exercising flexibility, as necessary and appropriate, in revising its rules and policies to speed up their deployment. However, in recent months, stakeholders in the health sector and commercial wireless industry have raised concerns about the likely surge in demand for spectrum for wireless medical devices and broadband-enabled services—noting trends toward fully connected hospitals, widespread remote patient monitoring, and leveraging connectivity to improve health facilities' workflow and back-office functions—and have sought appropriate regulatory relief. Most recently, in August 2016, TerreStar Corporation filed a request for waiver of its substantial service requirements to enable use of its wireless licenses in the 1.4 GHz band to provide wireless medical telemetry service (WMTS) operations, citing increasing demand. Several wireless medical device manufacturers supported the waiver request and argued that there was a spectrum shortage facing WMTS licensees.

    Below, we seek information and data on (i) the types of broadband-enabled health technologies and medical devices currently in the market and those that may be launched in the near future; (ii) the future spectrum and wireless infrastructure needs in the health care sector; and (iii) any concerns about the increased use and proliferation of wireless medical devices in health care settings and public spaces. Also, we welcome comment on what, if any, regulatory barriers exist (as well as incentives that could be implemented) concerning the deployment of advanced broadband-enabled health care technologies and medical devices. For purposes of this Document, we are only seeking information on “medical devices” that use RF wireless technology or communications functions for diagnosis, treatment, or patient monitoring.

    10. We seek information on the types of broadband-enabled health technologies and medical devices that are currently in the market. In addition, what emerging types of broadband-enabled health technologies and medical devices are likely to be available to consumers soon? What are the future trends in this market area?

    11. What, if any, technical issues or concerns exist for patients and other users of medical devices when such devices are used in hospital settings? Do these concerns vary depending on the type and size of the hospital setting? Are these concerns exacerbated when medical devices are operating in large or busy hospital environments (which may include a wide variety of wireless technologies, some of which may be unrelated to clinical care); if so, what are those concerns, how can they be addressed?

    12. Similarly, what, if any issues or concerns exist for patients and other users of medical devices when such devices are used primarily in potentially uncontrolled, non-hospital settings (e.g., in homes, aircraft, cruise ships, or other close quarter, multi-unit dwellings, etc.), where non-health related wireless technologies that also emit radio frequencies (e.g., baby monitors, wireless home security systems, Wi-Fi routers, etc.) may proliferate? And to what extent might similar issues or concerns exist for emerging and future technological innovations (e.g., electric automobiles, smart cars, smart homes, etc.)?

    13. We seek comment, data, and any studies on the possible complexities of the future RF environment in homes, hospitals, and other public spaces related to the increasing number of medical applications and devices.

    14. How are medical devices currently being tested and evaluated to ensure that consumers and patients can safely use them in both clinical and non-clinical settings, given their operation in varied spectrum environments? Are there currently any FCC rules or policies that serve as barriers to testing and deployment of advanced health care technologies and medical devices? If any, please identify which specific rules and/or policies, and explain how they have served to impede the testing and deployment of health care technologies and medical devices. How might the Commission address such concerns?

    15. We also request recommendations on how the Commission could make an assessment of the spectrum and wireless infrastructure needs for the future of health care in the United States. We seek input from all relevant stakeholders, including members of the health care, wireless, and software industries who are developing wireless healthcare applications for the present and future; physicians, consumer advocates, and academicians; and relevant federal, state, and local government agencies. While we envision building upon the spectrum management and wireless infrastructure deployment policies that the FCC has successfully employed in the past to promote innovation in wireless health services, we ask commenters to identify any novel framework, including those that might include smart city initiatives or public/private partnerships, that could be useful in planning for the wireless future of our nation's health care system.

    a. One of the compelling drivers of mobile technology in healthcare is the increasing availability of health apps for smartphones and tablets. There is now an app for almost every conceivable healthcare need, ranging from drug dose calculators to fully functioning electronic medical records. We are also seeing the development of smart homes and automobiles that would enable even more sophisticated remote health monitoring. How soon will we see widespread adoption of these technologies and what implications will they have on the spectrum needs of the health care industry?

    b. In developing a national spectrum plan for the health care industry, are there particular spectrum bands that the FCC should consider?

    c. When it comes to increased need for spectrum-based health technologies, what challenges do small, rural, and critical access hospitals have that are different from what large hospitals face?

    d. Do health care facilities, because of their different physical characteristics, require different types of small cells and wireless infrastructure than other commercial enterprises? What are the most challenging impediments to the deployment of wireless infrastructure in hospitals and health care systems? What policies should the FCC consider in order to help streamline infrastructure siting that is necessary for the deployment of wireless networks in hospitals and health care systems? What state or local government regulatory policies have helped to facilitate streamlined deployment of wireless infrastructure for health care?

    e. How can new advanced spectrum sharing techniques (e.g., dynamic spectrum sharing through database controlled coordination, software designed radios, or efficient spectrum use through network virtualization techniques) or secondary market mechanism (e.g., spectrum leasing arrangements) be leveraged to meet the spectrum demands of cutting-edge mobile broadband-enabled health technologies and medical devices that may be operating in varied spectrum environments? Are there any issues with harmonization of spectrum for medical uses across international borders to ensure that consumers can effectively and safely use medical and other devices across borders?

    f. What are some of the recent and emerging trends in health care delivery (in rural and urban areas) that are implicating spectrum use and needs? Are these trends creating a greater need for spectrum wireless services, particularly in rural areas? Are these trends resulting in increased use of remote patient monitoring solutions?

    16. Do any regulatory barriers exist concerning the deployment of advanced broadband-enabled health care technologies and medical devices? We also welcome suggestions on any regulatory incentives (that are within the FCC's authority) that could serve to foster continued investment in and further deployment of next-generation broadband-enabled health technologies and medical devices?

    Objective III: Strengthen the Nation's Telehealth Infrastructure Through the FCC's Rural Health Care Program and Other Initiatives

    Broadband deployment is one of the FCC's top priorities, particularly in rural America. Based on current evidence, broadband can be a game-changer particularly in rural areas—where consumers often have to drive long distances to access critical or specialty care; and where isolated clinics and health centers can save lives and promote community health by using advanced communications technologies to connect with medical expertise not otherwise available, as well as monitor patients who live many miles away from a health care facility.

    The FCC's Rural Health Care (RHC) Program has helped expand broadband services for eligible health care providers (HCPs) in rural areas. Currently, the RHC Program is comprised of three programs: The Healthcare Connect Fund (HCF), the Telecommunications Program, and the Pilot Program. With respect to the Pilot Program, while no new funding is available, some projects continue to accept new HCP sites. As funding for the Pilot Program projects ends, Pilot Program projects are expected to apply for additional support, if needed, under the Healthcare Connect Fund. The FCC established the Healthcare Connect Fund to expand health care provider access to broadband, especially in rural areas, and encourage the creation of state and regional broadband health care networks. Under the Healthcare Connect Fund, eligible rural HCPs, and those non-rural HCPs that are members of a consortium that has a majority of rural HCP sites, can receive a 65 percent discount from the fund on all eligible expenses. HCPs are required to contribute the remaining 35 percent to participate in the program. HCPs can use the Healthcare Connect Fund to purchase eligible services and equipment, as well as construct their own broadband infrastructure where it is shown to be the most cost effective option. The cap on total funding for the RHC Program altogether, which includes the Telecommunications Program and the Healthcare Connect Fund, is $400 million annually.

    The Commission's RHC Program has made the benefits of broadband-enabled health services, such as telehealth and telemedicine, more available to consumers living in rural and remote areas. Such broadband-enabled services have provided patients in rural areas with access to critically needed medical specialists in a variety of practice areas. The availability of telehealth and telemedicine programs also has been found to mitigate significant challenges associated with disparities in access to care and healthcare workforce shortages. The RHC Program also has been found to save health care providers money as well. The Commission continues to evaluate the Healthcare Connect Fund (HCF) in terms of the programmatic goals of (1) increasing access to broadband for HCPs, particularly those serving rural areas; (2) fostering the development and deployment of broadband health care networks; and (3) maximizing the cost-effectiveness of the program.

    17. We seek comment and suggestions on how the FCC can further promote and help enable the adoption and accessibility of broadband-enabled health technologies, like telehealth and telemedicine, in rural and other underserved areas. Are there other initiatives or actions beyond the RHC Program that the agency, or the Task Force on behalf of the agency, could pursue in order to promote and help enable the adoption and availability of broadband-enabled health technologies in rural and underserved areas of the country?

    18. Is the regulatory framework for the Rural Health Care program keeping pace with how broadband-enabled health care is being delivered in rural and underserved areas? If not, please explain in detail, describing any emerging challenges, gaps or opportunities for using broadband to better meet the health and health care needs of rural consumers.

    19. We seek current information and data, if any, that can be used to measure the impact that the various RHC programs have had on certain populations and sectors—i.e., those living in rural and underserved areas, low density populations, and Tribal lands; older Americans; persons with disabilities; military veterans; and the economically disadvantaged in rural and urban communities—all of which have traditionally faced significant health and health care challenges.

    20. We also are interested in hearing recent success stories about innovative health care services that were created or that became available as a result of the RHC Program, and how such services have helped consumers in rural and remote areas. We are particularly interested in receiving data and information about health outcomes, return on investment, and the ability to reach such underserved population groups. First-person accounts are welcomed.

    21. We seek information, data, and studies that identify specific rural areas and underserved regions of the country that need funding assistance for the purchase of high-capacity broadband connectivity, connections, and any other services or equipment authorized under the RHC Program rules. We seek detailed information and data as to whether eligible health care providers in these areas and regions that require funding assistance have participated in the RHC Program, and if not, why not. We also seek suggestions on how the Commission can encourage or facilitate their participation. Are there specific challenges of which the Commission should be aware?

    22. The Task Force is interested in identifying all currently available public (federal, state, or local) and private (e.g., non-profit or philanthropic organizations) funding sources for the provision of broadband-enabled health technologies and services (e.g., telehealth and telemedicine) in rural regions, Tribal lands, and in other underserved areas (including underserved urban areas), as well as for vulnerable populations. Please provide information about those funding sources, as well as their Web site address, if any.

    23. We seek any other comment, information, and data concerning the RHC Program as well as the general needs of rural consumers for broadband-enabled health solutions that would be helpful to the Task Force, given its charge and objectives.

    Objective IV: Raise Consumer Awareness About the Value Proposition of Broadband in the Health Care Sector and its Potential for Addressing Health Care Disparities

    It is critically important that consumers fully understand the practical and personal benefits of broadband in health care and in facilitating greater care coordination, proactive engagement in disease prevention, and self-management. Placing more care decisions in the hands of consumers and personalizing that experience appears to be a major theme in health applications and product development today. We also recognize that as consumers fully realize the practical health benefits of broadband, consumer demand for broadband-enabled health services and technologies will serve to further accelerate broadband deployment and adoption altogether—a national priority.

    24. We seek suggestions on how the Commission can effectively increase consumer awareness about the value proposition of broadband in the health care sector? Are there any practical efforts that the Commission can undertake to accelerate consumer adoption of broadband, and in particular broadband-enabled health services and technologies, especially among underserved populations? How might the Commission ensure that certain groups—e.g., rural consumers, those living on Tribal lands, older Americans, people with disabilities, military veterans, non-English speakers, and the economically disadvantaged—are fully aware of the availability and benefits of broadband-enabled health services and technologies? Are there any states, cities, and organizations engaged in similar efforts that could lead to potential partnerships?

    25. We also seek comment on any concerns that may discourage consumers, health care providers, and others from adopting broadband-enabled health services and other advanced health technologies, including telehealth and telemedicine services and emerging medical devices. To what extent do safety, security, reliability, and privacy concerns influence adoption of broadband-enabled health services and other advanced technologies? To what extent do costs, socioeconomic status, and digital literacy issues impact adoption?

    26. We request information on any studies, pilots, research, or other data that quantifies the benefits of broadband-enabled health technologies in improving patient outcomes and in reducing costs. What kind of return on investment have pilot and demonstration projects experienced?

    27. We are interested in learning how broadband can enable healthcare-related support systems to connect patients to the people, services and information they need to get well and stay healthy. In this regard, physicians inform us that there is growing recognition that the need for social services and supports (e.g., nutritionists, dieticians, pharmacists, family caregivers, fitness centers, and other health care supports or supporters outside the traditional hospital setting) significantly impact the ability of some consumers to become healthy and stay well, and that the availability of broadband is increasingly essential to bridging the various services and supports. We seek comment and suggestions on how the Commission can support the development and availability of these new broadband-enabled services and supports (outside the RHC Program) especially on Tribal lands and in rural, remote, and other underserved areas?

    28. We seek information and any studies about how broadband-enabled services and technologies have been, and could be used, to address health and health care disparity issues, and the impact (and successes) such services and technologies have had in addressing such issues.

    29. Are there any practical issues (e.g., the lack of a home computer) that may be impeding consumer awareness and adoption of broadband-enabled health technologies? What efforts can be undertaken to help alleviate some of these issues?

    Objective IV: Enable the Development of Broadband-Enabled Health Technologies That are Designed to be Fully Accessible to People With Disabilities

    The availability and accessibility of broadband-enabled health technologies designed to serve the needs of Americans with disabilities is critically important. One recent study estimates that, in 2013, the overall percentage of people with a disability in the U.S., among the civilian noninstitutionalized population, was 12.1 percent or approximately 37 million people. Other studies suggest that the number is higher than 50 million, and that it is predicted to continue to increase. Given these statistics, it is imperative that we do what we can, within our statutory authority, to promote the goal of making broadband-enabled health technologies and cutting-edge health and medical devices and applications available, accessible, and usable by people with disabilities.

    Technology has historically played an important role in the disability community. Many people with disabilities use communications technology, devices, or services in their daily lives, and broadband is becoming an essential data transmission platform that enables a wide range of services and tools. Ensuring that people with disabilities are able to access electronic health records, engage in video consultation with their physicians, fully utilize the latest health apps, and benefit from advances in wearable health technology, for example, are essential to the ongoing health care transformation. Consistent with its charge, the Task Force will consider the extent to which broadband-enabled services and technologies used for the provision of health and care are available, accessible, and usable by all Americans, including those with disabilities. We therefore seek any data, information, and comment that will assist the Commission in better understanding how it may assist in achieving these important goals.

    30. How are broadband-enabled health technologies and medical devices currently being used by people with disabilities? To what extent can these technologies and devices address the health care needs of people with disabilities in the future? Provide specific examples of the existing barriers, if any, that these technologies and devices pose for people with disabilities.

    31. We seek comment on whether the design and development of broadband-enabled health services and technologies, as well as cutting-edge health and medical devices and applications, are accessible to, and usable by, people with disabilities. Are there practical concerns or other issues that are inhibiting or limiting the use and availability of broadband-enabled health services and technologies for people with disabilities? How are hospitals and clinicians currently addressing, if at all, any of these issues? An increasing number of health care services provide patient portals for patients to access medical records and communicate with physicians and specialists. What measures are taken to ensure that these mechanisms are fully accessible to users with disabilities (e.g., accessible via screen readers used by individuals who are blind)?

    32. To what extent are clinicians aware of video relay service (VRS) and using it when remotely consulting with American Sign Language (ASL) users on a telephone call? Is there a need for VRS providers to have ASL interpreters with a knowledge of (and ability to translate) specialized health or medical vocabulary? Should a VRS call that involves consultations between a deaf or hard of hearing person and a doctor be given priority over other calls waiting in a queue, especially when there is a possible medical emergency? We also seek comment as to whether our telecommunications relay service (TRS) rules are currently optimized to encourage medical consults via telemedicine?

    33. We seek suggestions as to how the Commission can effectively raise awareness among people with disabilities about the value proposition of broadband in health? How can the Commission help to enable the adoption and accessibility of such services and technologies among people with disabilities, especially given our authority?

    Objective VI: Highlight Effective Telehealth Projects, Broadband-Enabled Health Technologies, and mHealth Applications Across the Country and Abroad—To Identify Lessons Learned, Best Practices, and Regulatory Challenges

    Related to the objective of increasing consumer awareness about the practical health-related benefits of broadband is the need to inform the public—especially those in rural and underserved regions—about the availability and successes of the many broadband-enabled telehealth and telemedicine centers and projects across the country and abroad, as well as existing and emerging mHealth applications, and to identify lessons learned and best practices.

    34. We seek current information and data on the effectiveness of broadband-enabled telehealth and telemedicine services, including any recent research on these services. How are patients responding to these services? We are particularly interested in receiving comments directly from consumers about their experience with these and other broadband-enabled services and technologies.

    35. We also seek comment on specific challenges faced by states, localities, and Tribal governments, as well as communities abroad, in deploying effective broadband-enabled telehealth and telemedicine projects.

    36. We seek comment on how the public can be better informed about the availability of broadband-enabled health services and technologies and mHealth applications. What have states, localities, other federal agencies, Tribal governments, and hospitals and clinics done to inform the public about the availability of these options? How effective have these projects been in promoting greater broadband utilization?

    37. We seek submissions of any case studies, research and video/audio summaries concerning recently launched applications/programs that are on the cutting edge of telehealth, telemedicine, mHealth, and other broadband-enabled health technologies and services.

    38. We seek comment on the extent to which the United States is not taking full advantage of the opportunities that broadband-enabled health technology provides. For countries that have been the most successful in making broadband-enabled health services and technology more widely available, especially in rural and underserved areas, we seek information on the approaches that such countries took (including lessons learned) in achieving success in broadband health adoption.

    Objective VII: Engage a Diverse Array of Traditional and Non-Traditional Stakeholders To Identify Emerging Issues and Opportunities in the Broadband Health Space

    Published reports indicate that the “the health IT industry is gaining a reputation as an emerging sweet spot for technology investors.” We want to be sure that Commission policies do not present obstacles to continued innovation and investment in broadband-enabled health technologies, including medical devices that rely on communications technology. We observe that there is a growing desire for such technologies—including those that are wearable or otherwise track and monitor personal health—and that this emerging health market is estimated to be worth billions. There are also countless smartphone apps that track health-related issues. By some estimates, there are over 100,000 digital health apps offered in the three major app stores. In addition, recent advances in broadband-enabled sensor technology offer the potential for the emergence of more convenient and ultimately less costly and less invasive health care solutions. For example, we may soon see the widespread use of smart clothing (or smart “tattoo” applications) that use skin-based sensors to measure things like heart rate, respiration, and blood pressure. Robotics, virtual reality, and other consumer facing health technologies also offer the potential to help older Americans live more independently. Some technology companies are even experimenting with combining web search with online health consultations for a one-stop offering. To help inform the Commission in its related and other efforts in this area, we seek comment and information on these and other emerging health technologies, applications, services, and connected medical devices.

    39. We seek comment on any emerging issues of concern (that have not been identified in this Document) that potentially impact efforts to accelerate the availability of broadband-enabled health technologies and services, as well as medical devices that rely on communications technology.

    40. While the United States has made great strides in recent years, many advances in digital health technologies are still not broadly available, widely utilized, or well-tailored to meet the needs of all Americans. We seek comment on these concerns.

    41. What are the emerging opportunities for investors, innovators, and entrepreneurs in the broadband health space and in the development of the next generation of connected health technologies and converged medical devices? We seek suggestions on any efforts that the Commission might undertake to support innovation and entrepreneurship in these areas. Are there emerging or non-traditional stakeholders that should be part of the Commission's efforts? If so, please identify them and their respective roles in or contributions to the broadband health space.

    42. We seek comment on how to promote small and diverse investors, innovators, and entrepreneurs in the broadband health sector in order to better ensure that the benefits of broadband-health technologies and services are available to all Americans.

    43. We seek to engage all potential stakeholders in this national broadband health effort. Commenters should identify any additional stakeholders that are not specifically referenced in this Document. We also encourage parties to identify any other relevant issues (not covered in this Notice) for the Task Force, given its charge and objectives.

    Administrative Matters. Because this Document does not itself initiate a “proceeding,” responses to the Document are not “presentations” subject to the prohibitions in restricted proceedings and the disclosure requirements in permit-but-disclose proceedings. Nonetheless, parties discussing or providing information to the Task Force or any other members of the Commission regarding the issues raised in this Document are strongly encouraged to file a memorandum in the docket, summarizing their discussion and/or information.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2017-09309 Filed 5-9-17; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 54 [WC Docket No. 10-90, WT Docket No. 10-208; Report No. 3077] Petitions for Reconsideration and/or Clarification of Action in Rulemaking Proceeding AGENCY:

    Federal Communications Commission.

    ACTION:

    Petitions for reconsideration and/or clarification.

    SUMMARY:

    Petitions for Reconsideration and/or Clarification (Petitions) have been filed in the Commission's rulemaking proceeding by Caressa D. Bennet, on behalf of Rural Wireless Association, Inc.; Krista L. Witanowski, on behalf of CTIA; Brian Gelfand, on behalf of Buffalo-Lake Erie Wireless Systems, L.L.C. (Blue Wireless); Robert A. Silverman, on behalf of Panhandle Telephone Cooperative, Inc. and Pine Belt Cellular, Inc.; John Prendergast, on behalf of the Blooston Rural Carriers; David A. LaFuria, on behalf of Rural Wireless Carriers; and Cathleen A. Massey, on behalf of T-Mobile USA, Inc.

    DATES:

    Oppositions to the Petitions must be filed on or before May 16, 2017. Replies to an opposition must be filed on or before May 26, 2017.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Mark Montano, Wireless Telecommunications Bureau, (202) 418-0691, email: [email protected].

    SUPPLEMENTARY INFORMATION:

    This is a summary of Commission's document, Report No. 3077, released May 1, 2017. The full texts of the Petitions are available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 or may be accessed online via the Commission's Electronic Comment Filing System at http://apps.fcc.gov/ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5.U.S.C. because no rules are being adopted by the Commission.

    Subject: Connect America Fund; Universal Service Reform—Mobility Fund, Report and Order, FCC 17-11, published at 82 FR 15422, March 28, 2017, in WC Docket No. 10-90 and WT Docket No. 10-208. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

    Number of Petitions Filed: 7.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2017-09462 Filed 5-9-17; 8:45 am] BILLING CODE 6712-01-P
    82 89 Wednesday, May 10, 2017 Notices DEPARTMENT OF AGRICULTURE Office of the Secretary Notice of Request for Extension of a Currently Approved Information Collection AGENCY:

    National Appeals Division, U.S. Department of Agriculture.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the U.S. Department of Agriculture, National Appeals Division's request for an extension to a currently approved information collection for Customer Service Survey.

    DATES:

    Comments on this notice must be received by July 10, 2017 to be assured of consideration.

    ADDRESSES:

    The National Appeals Division invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:

    Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments.

    • Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Angela Parham, U.S. Department of Agriculture, National Appeals Division, 3101 Park Center Drive, Suite 1100, Alexandria, Virginia 22302-1500, 703.305.2588.

    SUPPLEMENTARY INFORMATION:

    Title: National Appeals Division Customer Service Survey.

    OMB Number: 0503-0007.

    Expiration Date of Approval: September 2017.

    Type of Request: Extension of a currently approved information collection.

    Abstract: Executive Order 12862, requires Federal Agencies to identify the customers who are or should be served by the Agency and survey those customers to determine the kind and quality of services they want and level of satisfaction with existing services. Therefore, NAD proposes to extend its currently approved information collection survey.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average .17 hours per response.

    Respondents: Appellants, producers, and other USDA agencies.

    Estimated Number of Respondents: 1600.

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Burden on Respondents: 272.

    Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments may be sent to Dr. Angela Parham, U.S. Department of Agriculture, National Appeals Division, 3101 Park Center Drive, Suite 1100, Alexandria, Virginia 22301-1500. All comments received will be available for public inspection during regular business hours at the same address. All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.

    Steven C. Silverman, Director, National Appeals Division.
    [FR Doc. 2017-09406 Filed 5-9-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2017-0037] Notice of Request for Extension of Approval of an Information Collection; Environmental Monitoring AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Extension of approval of an information collection; comment request.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with environmental monitoring.

    DATES:

    We will consider all comments that we receive on or before July 10, 2017.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0037.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2017-0037, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0037 or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    For information on environmental monitoring, contact Dr. Robert Baca, Assistant Director, Permitting and Compliance Coordination, Compliance and Environmental Coordination Branch, PPQ, APHIS, 4700 River Road Unit 150, Riverdale, MD 20737; (301) 851-2292. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.

    SUPPLEMENTARY INFORMATION:

    Title: Environmental Monitoring.

    OMB Control Number: 0579-0117.

    Type of Request: Extension of approval of an information collection.

    Abstract: The mission of the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) is to provide leadership in ensuring the health and care of animals and plants, to improve agricultural productivity and competitiveness, and to contribute to the national economy and the public health.

    APHIS is committed to accomplishing its mission in a manner that promotes and protects the integrity of the environment. This includes APHIS' compliance with all applicable environmental statutes and regulations, including the National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.), the regulations of the Council on Environmental Quality implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), USDA regulations implementing NEPA (7 CFR part 1b), and APHIS' NEPA Implementing Procedures (7 CFR part 372). APHIS engages in environmental monitoring for certain activities that we conduct to control or eradicate certain pests and diseases. We monitor those activities that have the greatest potential for harm to the human environment to ensure that the mitigation measures developed to avoid that harm are enforced and effective. In many cases, monitoring is required where APHIS programs are conducted close to habitats of endangered and threatened species. This monitoring is developed in coordination with the U.S. Department of the Interior's Fish and Wildlife Service, in compliance with the Endangered Species Act (50 U.S.C. 17.11 and 17.12).

    APHIS field personnel and State cooperators jointly use an Environmental Monitoring Form to collect information concerning the effects of pesticide use in these sensitive areas. The goal of environmental monitoring is to track the potential impact that APHIS activities may have on the environment and to use this knowledge in making any necessary adjustments in future program actions.

    We are asking OMB to approve our use of this information collection activity for an additional 3 years.

    The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:

    (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

    (2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

    (3) Enhance the quality, utility, and clarity of the information to be collected; and

    (4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.

    Estimate of burden: The public reporting burden for this collection of information is estimated to average 0.50 hours per response.

    Respondents: Growers, appliers of pesticides, State department of agriculture personnel.

    Estimated annual number of respondents: 110.

    Estimated annual number of responses per respondent: 20.

    Estimated annual number of responses: 2,200.

    Estimated total annual burden on respondents: 1,100 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

    All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Done in Washington, DC, this 4th day of May 2017. Michael C. Gregoire, Acting Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2017-09467 Filed 5-9-17; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2017-0015] Bayer CropScience LP.; Availability of Draft Environmental Assessment, Plant Pest Risk Similarity Assessment, Preliminary Finding of No Significant Impact, and Preliminary Decision for an Extension of a Determination of Nonregulated Status of Canola Genetically Engineered for Male Sterility and Glufosinate-Ammonium Resistance AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice; extension of comment period.

    SUMMARY:

    We are extending the comment period for our notice advising the public that the Animal and Plant Health Inspection Service has reached a preliminary decision to extend our determination of nonregulated status of InVigor® MS8 canola (hereinafter MS8 canola) to Bayer's canola event MS11 in response to a request from Bayer CropScience LP. MS11 canola has been genetically engineered for male sterility and resistance to the herbicide glufosinate-ammonium using the same mechanism of action as MS8 canola. This action will allow interested persons additional time to prepare and submit comments on our draft environmental assessment, preliminary regulatory determination, preliminary finding of no significant impact, and plant pest risk similarity assessment for the proposed determination of nonregulated status.

    DATES:

    The comment period for the notice published on April 12, 2017 (82 FR 17625) is extended. We will consider all comments that we receive on or before May 30, 2017.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0015.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2017-0015, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

    The Bayer CropScience LP. extension request, our draft environmental assessment, plant pest risk similarity assessment, our preliminary finding of no significant impact, our preliminary determination, and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0015 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    Supporting documents and any comments we received regarding our determination of nonregulated status of the antecedent organism, MS8 canola, may be inspected in our reading room. Supporting documents may also be found on the APHIS Web site for MS11 canola (the organism under evaluation) under APHIS Petition Number 16-235-01p.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Cindy Eck, Document Control Officer/Team Leader, Policy Coordination Programs, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737-1236; (301) 851-3954, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    On April 12, 2017, we published in the Federal Register (82 FR 17625-17626, Docket No. APHIS-2017-0015) a notice advising the public that the Animal and Plant Health Inspection Service has reached a preliminary decision to extend our determination of nonregulated status of InVigor® MS8 canola (hereinafter MS8 canola) to Bayer's canola event MS11 in response to a request from Bayer CropScience LP. MS11 canola has been genetically engineered for male sterility and resistance to the herbicide glufosinate-ammonium using the same mechanism of action as MS8 canola. The notice also made available for public comment our draft environmental assessment, preliminary regulatory determination, preliminary finding of no significant impact, and plant pest risk similarity assessment for the proposed determination of nonregulated status.

    Comments on the notice were required to be received on or before May 12, 2017. We are extending the comment period on Docket No. APHIS-2017-0015 for an additional 15 days. This action will allow interested persons additional time to prepare and submit comments.

    Authority:

    7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.

    Done in Washington, DC, this 5th day of May 2017. Michael C. Gregoire, Acting Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2017-09499 Filed 5-9-17; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF407 Gulf of Mexico Fishery Management Council; Public Meetings AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public hearing via webinar.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council (Council) will hold a public hearing via webinar to solicit public comments on Draft Reef Fish Amendment 47—Modify Vermilion Snapper ACLs and MSY Proxies.

    DATES:

    The public hearing will take place via webinar on Wednesday, May 24, 2017; starting at 6 p.m. EDT and will conclude no later than 9 p.m. Written public comments must be received on or before 5 p.m. EDT on Tuesday, May 16, 2017.

    ADDRESSES:

    Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630; www.gulfcouncil.org.

    FOR FURTHER INFORMATION CONTACT:

    Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630, [email protected]

    SUPPLEMENTARY INFORMATION:

    Based on the results of a 2016 vermilion snapper stock assessment, the Council's Scientific and Statistical Committee (SSC) concluded that the vermilion snapper stock is neither overfished nor undergoing overfishing. The SSC provided recommendations for the overfishing limit (OFL) during 2017-21 based on a proxy for maximum sustainable yield (MSY) of 30% SPR, and recommended acceptable biological catch (ABC) during 2017-2021 based on fishing at a fishing mortality rate that was 75% of the OFL fishing mortality rate. The Council accepted 30% SPR as the preferred MSY proxy, but also asked for analysis of the OFL and ABC yields at 26% SPR, which is a slightly less conservative MSY proxy, resulting in higher yields but also a smaller spawning stock biomass.

    The Council needs to take two actions in this amendment. Action 1 is to adopt an MSY proxy. The alternatives are: (1) To not adopt a proxy (no action), (2) adopt the proxy of 30% SPR (preferred alternative), or (3) adopt the proxy of 26% SPR. Action 2 is to set annual catch limits (ACLs) for 2017-21. The alternatives are: (1) To keep the current 3.42 million pound whole weight ACL that was implemented in 2012 using a data-poor method, (2) set ACL equal to the annual estimate of ABC for each year 2017-21 (which would result in a declining annual yield) with the 2021 ACL remaining in place for subsequent years, (3) set ACL equal to a constant catch corresponding to the average ABC during 2017-21 (preferred alternative), or (4) set ACL equal to the equilibrium ABC, which is the catch level at which no further declines are projected under current biological conditions. The specific ACL yields for Alternatives 2, 3, and 4 depend upon the selection of MSY proxy in Acton 1.

    Staff and a Council member will be available to answer any questions and the public will have the opportunity to provide testimony on the amendment and other related testimony.

    The schedule is as follows:

    Wednesday, May 24, 2017, Webinar—6 p.m. EDT at: https://attendee.gotowebinar.com/register/5395690967655721217.

    After registering, you will receive a confirmation email containing information about joining the webinar.

    Public documents may be obtained by contacting the Gulf of Mexico Fishery Management Council at (813) 348-1630 or on their Web site at www.gulfcouncil.org.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 4, 2017. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-09438 Filed 5-9-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF406 Gulf of Mexico Fishery Management Council; Public Meetings AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public hearing via webinar.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council (Council) will hold a public hearing via webinar to solicit public comments on Draft Reef Fish Amendment 44—Minimum Stock Size Threshold for Reef Fish Stocks.

    DATES:

    The public hearing will take place via webinar on Tuesday, May 23, 2017, starting at 6 p.m. EDT and will conclude no later than 9 p.m. Written public comments must be received on or before 5 p.m. EDT on Tuesday, May 16, 2017.

    ADDRESSES:

    Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630, www.gulfcouncil.org.

    FOR FURTHER INFORMATION CONTACT:

    Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630; [email protected].

    SUPPLEMENTARY INFORMATION:

    Minimum stock size threshold (MSST) is the stock biomass level below which a stock is declared to be overfished and in need of a rebuilding plan. It is set at some level below the biomass level corresponding to maximum sustainable yield (Bmsy) in order to allow natural fluctuations around the Bmsy level without spurious overfished declarations resulting. There are 7 stocks in the Reef Fish Fishery Management Plan that have current or proposed MSST definitions (gag, red grouper, red snapper, vermilion snapper, gray triggerfish, greater amberjack, and hogfish). For most of these stocks, MSST is set using the formula: (1 − M) * Bmsy, where M is the natural mortality rate and Bmsy is the stock biomass corresponding to MSY or the MSY proxy. For stocks with a low natural mortality rate, this results in an MSST that is close to Bmsy. In some cases this MSST may be so close the Bmsy that it is not significantly different given the uncertainties in the data, and may lead to spurious overfished declarations due to natural fluctuations. For this reason, the Council is considering alternatives that would broaden the difference between Bmsy and MSST for some or all of the 7 reef fish stocks.

    Staff and a Council member will be available to answer any questions and the public will have the opportunity to provide testimony on the amendment and other related testimony.

    The schedule is as follows:

    Tuesday, May 23, 2017, Webinar—6 p.m. EDT at: https://attendee.gotowebinar.com/register/369981646765939713.

    After registering, you will receive a confirmation email containing information about joining the webinar.

    Public documents may be obtained by contacting the Gulf of Mexico Fishery Management Council at (813) 348-1630 or on their Web site at www.gulfcouncil.org.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 4, 2017. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-09437 Filed 5-9-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF402 New England Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Monkfish Committee on Wednesday, May 24, 2017, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Wednesday, May 24, 2017 at 10 a.m.

    ADDRESSES:

    The meeting will be held at the Four Points by Sheraton Philadelphia Airport, 4101A Island Avenue, Philadelphia, PA 19153; telephone: (215) 492-0400.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Monkfish Committee will discuss the potential continuation of Amendment 6 to implement catch shares in the monkfish fishery. They will also discuss research priorities for the monkfish RSA program. Other business will be discussed as needed.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 4, 2017. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-09434 Filed 5-9-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF401 New England Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Monkfish Advisory Panel on Tuesday, May 23, 2017, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Tuesday, May 23, 2017 at 10 a.m.

    ADDRESSES:

    The meeting will be held at the Four Points by Sheraton Philadelphia Airport, 4101A Island Avenue, Philadelphia, PA 19153; telephone: (215) 492-0400

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Monkfish Advisory Panel will discuss the potential continuation of Amendment 6 to implement catch shares in the monkfish fishery. They will also discuss research priorities for the monkfish RSA program. Other business will be discussed as needed.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 4, 2017. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-09433 Filed 5-9-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF340 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Mukilteo Multimodal Construction Project in Washington State AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Proposed incidental harassment authorization (IHA); request for comments.

    SUMMARY:

    NMFS has received a request from Washington State Department of Transportation (WSDOT) for authorization to take marine mammals incidental to Mukilteo Multimodal Construction Project in Washington State. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to incidentally take marine mammals during the specified activities.

    DATES:

    Comments and information must be received no later than June 9, 2017.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act

    Issuance of an MMPA 101(a)(5)(D) authorization requires compliance with the National Environmental Policy Act.

    NMFS preliminary determined the issuance of the proposed IHA is consistent with categories of activities identified in CE B4 (issuance of incidental harassment authorizations under section 101(a)(5)(A) and (D) of the MMPA for which no serious injury or mortality is anticipated) of the Companion Manual for NAO 216-6A and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual for NAO 216-6A that would preclude this categorical exclusion.

    We will review all comments submitted in response to this notice prior to making a final decision as to whether application of this CE is appropriate in this circumstance.

    Summary of Request

    NMFS received a request from WSDOT for an IHA to take marine mammals incidental to Mukilteo Multimodal Project in Mukilteo, Washington. WSDOT's request was for harassment only and NMFS concurs that serious injury or mortality is not expected to result from this activity. Therefore, an IHA is appropriate.

    On April 7, 2016, WSDOT submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of marine mammal species incidental to construction associated with the Mukilteo Multimodal Project in Mukilteo, Washington, between August 1, 2017, and July 31, 2018. WSDOT subsequently updated its project scope and submitted a revised IHA application on April 10, 2017. NMFS determined the IHA application was complete on April 14, 2017. NMFS is proposing to authorize the take by Level A and Level B harassment of the following marine mammal species: Harbor seal (Phoca vitulina), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), northern elephant seal (Mirounga angustirostris), killer whale (Orcinus orca), gray whale (Eschrichtius robustus), humpback whale (Megaptera novaeangliae), harbor porpoise (Phocoena phocoena), and Dall's porpoise (P. dalli).

    Description of Proposed Activity Overview

    The purpose of the Mukilteo Multimodal Project is to provide safe, reliable, and effective service and connection for general-purpose transportation, transit, high occupancy vehicles (HOV), pedestrians, and bicyclists traveling between Island County and the Seattle/Everett metropolitan area and beyond by constructing a new ferry terminal. The current Mukilteo Ferry Terminal has not had significant improvements for almost 30 years and needs key repairs. The existing facility is deficient in a number of aspects, such as safety, multimodal connectivity, capacity, and the ability to support the goals of local and regional long-range transportation and comprehensive plans. The project is intended to:

    • Reduce conflicts, congestion, and safety concerns for pedestrians, bicyclists, and motorists by improving local traffic and safety at the terminal and the surrounding area that serves these transportation needs.

    • Provide a terminal and supporting facilities with the infrastructure and operating characteristics needed to improve the safety, security, quality, reliability, efficiency, and effectiveness of multimodal transportation.

    • Accommodate future demand projected for transit, HOV, pedestrian, bicycle, and general-purpose traffic.

    The proposed Mukilteo Multimodal Project would involve in-water impact and vibratory pile driving and vibratory pile removal. Details of the proposed construction project are provided below.

    Dates and Duration

    Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water work timing restrictions to protect ESA-listed salmonids, planned WSDOT in-water construction is limited each year to July 16 through February 15. For this project, in-water construction is planned to take place between August 1, 2017 and February 15, 2018. The total worst-case time for pile installation and removal is 175 days (Table 1).

    Specified Geographic Region

    The Mukilteo Ferry Terminal is located in the City of Mukilteo, Snohomish County, Washington. The terminal is located in Township 28 North, Range 4 East, Section 3, in Possession Sound. The new terminal will be approximately 1,700 ft east of the existing terminal in Township 28N, Range 4E, Section 33 (Figure 1-2 of the IHA application). Land use in the Mukilteo area is a mix of residential, commercial, industrial, and open space and/or undeveloped lands.

    Detailed Description of In-Water Pile Driving Associated With Mukilteo Multimodal Project

    The proposed project has two elements involving noise production that may affect marine mammals: Vibratory hammer driving and removal, and impact hammer driving.

    (1) Vibratory Hammer Driving and Removal

    Vibratory hammers are commonly used in steel pile driving where sediments allow, and involve the same vibratory hammer used in pile removal. The pile is placed into position using a choker and crane, and then vibrated between 1,200 and 2,400 vibrations per minute. The vibrations liquefy the sediment surrounding the pile allowing it to penetrate to the required seating depth, or to be removed. The type of vibratory hammer that will be used for the project will likely be an APE 400 King Kong (or equivalent) with a drive force of 361 tons.

    (2) Impact Hammer Installation

    Impact hammers are used to install plastic/steel core, wood, concrete, or steel piles. An impact hammer is a steel device that works like a piston. Impact hammers are usually large, though small impact hammers are used to install small diameter plastic/steel core piles.

    Impact hammers have guides (called a lead) that hold the hammer in alignment with the pile while a heavy piston moves up and down, striking the top of the pile, and drives it into the substrate from the downward force of the hammer on the top of the pile.

    To drive the pile, the pile is first moved into position and set in the proper location using a choker cable or vibratory hammer. Once the pile is set in place, pile installation with an impact hammer can take less than 15 minutes under good conditions, to over an hour under poor conditions (such as glacial till and bedrock, or exceptionally loose material in which the pile repeatedly moves out of position).

    Impact hammer is also used for “proofing” after pile is driven using a vibratory hammer to set the pile firmly.

    Details of pile driving activities are provided below and are summarized in Table 1.

    • Vibratory driving of 24-inch temporary steel pile and steel piles for a public fishing pier. Installation of each pile will take approximately 60 minutes, 3 piles installed per day, with 117 piles installed over 39 days.

    • Vibratory removal of 69 temporary 24-inch diameter steel piles. This will take approximately 15 minutes per pile, with 3 piles removed per day over 23 days.

    • Vibratory driving of 40 30-inch steel piles. This will take approximately 60 minutes per pile, with 3 piles installed per day over 14 days.

    • Vibratory removal of 2 30-inch test steel piles. This will take approximately 15 minutes per pile, with both piles removed in 1 day.

    • Vibratory removal of 7 30-inch inner dolphin steel piles. This will take approximately 15 minutes per pile, with all 7 piles removed in 1 day.

    • Vibratory driving of 6 36-inch steel piles. This will take approximately 60 minutes per pile, with 3 piles installed per day over 2 days.

    • Vibratory driving of 2 78-inch diameter drilled steel shafts. This will take approximately 60 minutes to install in one day.

    • Vibratory driving of a 120-inch diameter drilled steel shaft. This will take approximately 60 minutes to install in one day.

    • Vibratory driving of 139 steel H-piles. This will take approximately 30 minutes per pile, with 10 piles installed per day over 14 days.

    • Vibratory driving of 90 temporary steel sheet piles. This will take approximately 30 minutes per pile, with 3 sheet piles installed per day over 30 days.

    • Vibratory removal of 90 temporary steel sheet piles. This will take approximately 15 minutes per pile, with 6 piles removed per day over 15 days.

    • Impact driving (proofing; 300 strikes per pile) of 68 temporary 24-inch diameter steel piles. This will take approximately 15 minutes per pile, with 3 piles installed per day over 23 days.

    • Impact driving (proofing; 300 strikes per pile) of 5 30-inch diameter steel piles. This will take approximately 15 minutes per pile, with all 5 piles installed in 1 day.

    • Impact driving with 3000 strikes per pile of 25 30-inch diameter steel piles. This will take approximately 15 minutes per pile, with 3 piles installed per day over 9 days.

    Table 1—Summary of In-Water Pile Driving Durations Method Pile type Pile size
  • (inch)
  • Pile number Duration
  • (min./sec.) per pile (vib.) or
  • strikes per pile
  • (impact)
  • Duration
  • (days)
  • Vibratory driving Steel 24 117 60/3600 39 Vibratory removal Steel 24 69 15/900 23 Vibratory driving Steel 30 40 60/3600 14 Vibratory removal Steel 30 2 30/1800 1 Vibratory removal Steel 30 7 15/1800 1 Vibratory driving Steel 36 6 60/3600 2 Vibratory driving Steel shaft 78 2 60/3600 2 Vibratory driving Steel shaft 120 1 60/3600 1 Vibratory driving Steel H-pile 12 139 30/1800 14 Vibratory driving Steel sheet 90 30/1800 30 Vibratory removal Steel sheet 90 15/900 15 Impact proofing Steel 24 68 300 23 Impact driving Steel 30 25 3000 9 Impact proofing Steel 30 5 300 1 Total 661 175

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).

    Description of Marine Mammals in the Area of Specified Activities

    We have reviewed the applicants' species information—which summarizes available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the applications, as well as to NMFS's Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/), instead of reprinting all of the information here. Additional general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's Web site (www.nmfs.noaa.gov/pr/species/mammals/), or in the U.S. Navy's Marine Resource Assessments (MRA) for relevant operating areas. The MRAs are available online at: www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html. Table 2 lists all species with expected potential for occurrence in Mukilteo project area and summarizes information related to the population or stock, including potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality to assess the population-level effects of the anticipated mortality from a specific project (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality are included here as gross indicators of the status of the species and other threats. Species that could potentially occur in the proposed survey areas but are not expected to have reasonable potential to be harassed by WSDOT's Mukilteo Multimodal project are described briefly but omitted from further analysis. These include extralimital species, which are species that do not normally occur in a given area but for which there are one or more occurrence records that are considered beyond the normal range of the species. For status of species, we provide information regarding U.S. regulatory status under the MMPA and ESA.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock.

    Nine species (with 10 managed stocks) are considered to have the potential to co-occur with the proposed construction activities. Extralimital species or stocks unlikely to co-occur with the Mukilteo project include bottlenose dolphin, long-beaked common dolphin, Risso's dolphin, Bryde's whale, and minke whale. All values presented in Table 2 are the most recent available at the time of publication and are available in the 2015 SARs (Carretta et al. 2016) and draft 2016 SARs (available online at: www.nmfs.noaa.gov/pr/sars/draft.htm).

    Table 2—Marine Mammals With Potential Presence Within the Proposed Project Area Common name Scientific name Stock ESA/MMPA
  • status;
  • strategic
  • (Y/N) 1
  • Stock
  • abundance
  • (CV, Nmin,
  • most recent
  • abundance
  • survey) 2
  • PBR Annual M/SI 3
    Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae Gray whale Eschrichtius robustus Eastern North Pacific N 20,990 624 132 Family Balaenopteridae (rorquals) Humpback whale Megaptera novaeangliae California/Oregon/Washington Y 1,918 11.0 6.5 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae Killer whale Orcinus orca Eastern North Pacific Southern Resident Y 78 0 0 West coast transient N 243 2.4 0 Family Phocoenidae (porpoises) Harbor porpoise Phocoena phocoena Washington inland waters N 11,233 66 7.2 Dall's porpoise P. dalli California/Oregon/Washington N 25,750 172 0.3 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion Zalophus californianus U.S. N 296,750 9,200 389 Steller sea lion Eumetopias jubatus Eastern U.S. N 71,562 2,498 108 Family Phocidae (earless seals) Harbor seal Phoca vitulina Washington northern inland waters N 4 11,036 1,641 43 Elephant seal Mirounga angustirostris California breeding N 179,000 2,882 8.8 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 Harbor seal estimate is based on data that are 8 years old, but this is the best available information for use here.
    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section will consider the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

    Potential impacts to marine mammals from the proposed Mukilteo ferry terminal construction are from noise generated during in-water pile driving and pile removal activities.

    Acoustic Effects

    Here, we first provide background information on marine mammal hearing before discussing the potential effects of the use of active acoustic sources on marine mammals.

    Marine Mammal Hearing—Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

    • Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz, with best hearing estimated to be from 100 Hz to 8 kHz;

    • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz, with best hearing from 10 to less than 100 kHz;

    • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz.

    • Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz, with best hearing between1-50 kHz;

    • Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz, with best hearing between 2-48 kHz.

    • The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

    For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Nine marine mammal species (5 cetacean and 4 pinniped (2 otariid and 2 phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. Of the cetacean species that may be present, 2 are classified as low-frequency cetaceans (i.e., all mysticete species), 1 is classified as mid-frequency cetaceans (i.e., killer whale), and 2 are classified as high-frequency cetaceans (i.e., harbor porpoise and Dall's porpoise).

    The WSDOT's Mukilteo Multimodal construction work using in-water pile driving and pile removal could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.

    Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran et al., 2005). Factors that influence the amount of threshold shift include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing threshold shift normally decreases over time following cessation of the noise exposure. The amount of threshold shift just after exposure is the initial threshold shift. If the threshold shift eventually returns to zero (i.e., the threshold returns to the pre-exposure value), it is a temporary threshold shift (Southall et al., 2007).

    Threshold Shift (noise-induced loss of hearing)—When animals exhibit reduced hearing sensitivity (i.e., sounds must be louder for an animal to detect them) following exposure to an intense sound or sound for long duration, it is referred to as a noise-induced threshold shift (TS). An animal can experience temporary threshold shift (TTS) or permanent threshold shift (PTS). TTS can last from minutes or hours to days (i.e., there is complete recovery), can occur in specific frequency ranges (i.e., an animal might only have a temporary loss of hearing sensitivity between the frequencies of 1 and 10 kHz), and can be of varying amounts (for example, an animal's hearing sensitivity might be reduced initially by only 6 decibel (dB) or reduced by 30 dB). PTS is permanent, but some recovery is possible. PTS can also occur in a specific frequency range and amount as mentioned above for TTS.

    For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran et al., 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; Finneran and Schlundt, 2010; Lucke et al., 2009; Mooney et al., 2009a, 2009b; Popov et al., 2011a, 2011b; Kastelein et al., 2012a; Schlundt et al., 2000; Nachtigall et al., 2003, 2004). For pinnipeds in water, data are limited to measurements of TTS in harbor seals, an elephant seal, and California sea lions (Kastak et al., 1999, 2005; Kastelein et al., 2012b).

    Lucke et al. (2009) found a threshold shift (TS) of a harbor porpoise after exposing it to airgun noise with a received sound pressure level (SPL) at 200.2 dB (peak-to-peak) re: 1 micropascal (μPa), which corresponds to a sound exposure level of 164.5 dB re: 1 μPa2 s after integrating exposure. Because the airgun noise is a broadband impulse, one cannot directly determine the equivalent of rms SPL from the reported peak-to-peak SPLs. However, applying a conservative conversion factor of 16 dB for broadband signals from seismic surveys (McCauley, et al., 2000) to correct for the difference between peak-to-peak levels reported in Lucke et al. (2009) and rms SPLs, the rms SPL for TTS would be approximately 184 dB re: 1 μPa, and the received levels associated with PTS (Level A harassment) would be higher. Therefore, based on these studies, NMFS recognizes that TTS of harbor porpoises is lower than other cetacean species empirically tested (Finneran & Schlundt, 2010; Finneran et al., 2002; Kastelein and Jennings, 2012).

    Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious (similar to those discussed in auditory masking, below). For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts. Also, depending on the degree and frequency range, the effects of PTS on an animal could range in severity, although it is considered generally more serious because it is a permanent condition. Of note, reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al., 2007), so one can infer that strategies exist for coping with this condition to some degree, though likely not without cost.

    In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals, which utilize sound for vital biological functions (Clark et al., 2009). Acoustic masking is when other noises such as from human sources interfere with animal detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction.

    Masking occurs at the frequency band that the animals utilize. Therefore, since noise generated from vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of sound pressure level) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). For WSDOT's Mukilteo Multimodal construction activities, noises from vibratory pile driving and pile removal contribute to the elevated ambient noise levels in the project area, thus increasing potential for or severity of masking. Baseline ambient noise levels in the vicinity of project area are high due to ongoing shipping, construction and other activities in the Puget Sound.

    Finally, marine mammals' exposure to certain sounds could lead to behavioral disturbance (Richardson et al., 1995), such as: changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

    The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall et al., 2007). Currently NMFS uses a received level of 160 dB re 1 μPa (rms) to predict the onset of behavioral harassment from impulse noises (such as impact pile driving), and 120 dB re 1 μPa (rms) for continuous noises (such as vibratory pile driving). For the WSDOT's Mukilteo Multimodal construction activities, both of these noise levels are considered for effects analysis because WSDOT plans to use both impact and vibratory pile driving, as well as vibratory pile removal.

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga et al. 1981) and possibly avoid predators (Wilson and Dill 2002). Experiments have shown that fish can sense both the strength and direction of sound (Hawkins 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level.

    The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas et al., 1993). In general, fish react more strongly to pulses of sound (such as noise from impact pile driving) rather than continuous signals (such as noise from vibratory pile driving) (Blaxter et al., 1981), and a quicker alarm response is elicited when the sound signal intensity rises rapidly compared to sound rising more slowly to the same level.

    During the coastal construction only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on marine mammals' prey availability in the area where construction work is planned.

    Finally, the time of the proposed construction activity would avoid the spawning season of the ESA-listed salmonid species.

    Estimated Take

    This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes would primarily be by Level B harassment, as noise generated from in-water impact pile driving and vibratory pile driving and pile removal has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency cetaceans (harbor and Dall's porpoises) and phocid seals (harbor and northern elephant seals) due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for low- and mid-frequency cetaceans and otarrids. The proposed mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable. Below we describe how the take is estimated.

    Basis for Takes

    Take estimates are based on average marine mammal density in the project area multiplied by the area size of ensonified zones within which received noise levels exceed certain thresholds (i.e., Level A and/or Level B harassment) from specific activities, then multiplied by the total number of days such activities would occur. Certain adjustments were made for marine mammals whose local abundance are known through long-term monitoring efforts. Therefore, their local abundance data are used for take calculation instead of general animal density (see below).

    Basis for Threshold Calculation

    As discussed above, in-water pile removal and pile driving (vibratory and impact) generate loud noises that could potentially harass marine mammals in the vicinity of WSDOT's proposed Mukilteo Multimodal project.

    Under the NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance), dual criteria are used to assess marine mammal auditory injury (Level A harassment) as a result of noise exposure (NMFS 2016). The dual criteria under the Guidance provide onset thresholds in instantaneous peak SPLs (Lpk) as well as 24-hr cumulative sound exposure levels (SELcum or L E) that could cause PTS to marine mammals of different hearing groups. The peak SPL is the highest positive value of the noise field, log transformed to dB in reference to 1 μPa.

    EN10MY17.000 where p(t) is acoustic pressure in pascal or micropascal, and p ref is reference acoustic pressure equal to 1 μPa.

    The cumulative SEL is the total sound exposure over the entire duration of a given day's pile driving activity, specifically, pile driving occurring within a 24-hr period.

    EN10MY17.001 where p(t) is acoustic pressure in pascal or micropascal, p ref is reference acoustic pressure equals to 1 μPa, t 1 marks the beginning of the time, and t 2 the end of time.

    For onset of Level B harassment, NMFS continues to use the root-mean-square (rms) sound pressure level (SPLrms) at 120 dB re 1 μPa and 160 dB re 1 μPa as the received levels from non-impulse (vibratory pile driving and removal) and impulse sources (impact pile driving) underwater, respectively. The SPLrms for pulses (such as those from impact pile driving) should contain 90 percent of the pulse energy, and is calculated by

    EN10MY17.002 where p(t) is acoustic pressure in pascal or micropascal, p ref is reference acoustic pressure equals to 1 μPa, t 1 marks the beginning of the time, and t 2 the end of time. In the case of an impulse noise, t 1 marks the time of 5 percent of the total energy window, and t 2 the time of 95 percent of the total energy window.

    Table 3 summarizes the current NMFS marine mammal take criteria.

    Table 3—Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater Hearing Group PTS Onset thresholds Impulsive Non-impulsive Behavioral thresholds Impulsive Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat : 219 dB
  • L E, LF,24h : 183 dB
  • L E, LF,24h : 199 dB L rms, flat : 160 dB L rms, flat : 120 dB
    Mid-Frequency (MF) Cetaceans L pk,flat : 230 dB
  • L E, MF,24h : 185 dB
  • L E, MF,24h : 198 dB
    High-Frequency (HF) Cetaceans L pk,flat : 202 dB
  • L E, HF,24h : 155 dB
  • L E, HF,24h : 173 dB
    Phocid Pinnipeds (PW) (Underwater) L pk,flat : 218 dB
  • L E, PW,24h : 185 dB
  • L E, PW,24h : 201 dB
    Otariid Pinnipeds (OW) (Underwater) L pk,flat : 232 dB
  • L E, OW,24h : 203 dB
  • L E, OW,24h : 219 dB
    * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.
    Sound Levels and Acoustic Modeling for the Proposed Construction Activity Source Levels

    The project includes vibratory pile driving and removal of 24-, 30-, and 36-inch (in) steel piles, vibratory driving of 78- and 120-in steel shaft, vibratory driving of steel H-piles, vibratory driving and removal of steel sheet piles, and impact pile driving and proofing of 24- and 30-in steel piles.

    Source levels of the above pile driving activities are based on measurements of the same material types and same or similar dimensions of piles measured at Mukilteo or elsewhere. Specifically, the source level for vibratory pile driving and removal of the 24-in steel pile is based on vibratory test pile driving of the same pile at the Friday Harbor (WSDOT, 2010a). The unweighted SPLrms source level at 10 m from the pile is 162 dB re 1 re 1 μPa. We consider that using vibratory pile installation source level as a proxy for vibratory pile removal is conservative.

    The source level for vibratory pile driving and removal of the 30-in steel pile is based on vibratory pile driving of the same pile at Port Townsend (WSDOT, 2010b). The unweighted SPLrms source level at 10 m from the pile is 174 dB re 1 re 1 μPa.

    The source level for vibratory pile driving the 36-in steel piles is based on vibratory test pile driving of 36-in steel piles at Port Townsend in 2010 (Laughlin 2011). Recordings of vibratory pile driving were made at a distance of 10 m from the pile. The results show that the unweighted SPLrms for vibratory pile driving of 36-in steel pile was 177 dB re 1 μPa.

    Source level for vibratory pile driving of the 78- and 120-in steel shaft is based on measurements of 72-in steel piles vibratory driving conducted by CALTRANS. The unweighted SPLrms source level ranged between 170 and 180 dB re 1 μPa at 10 m from the pile (CALTRANS 2012). The value of 180 dB is chosen to be more conservative.

    The source level for vibratory pile driving of steel H-piles is based on measurements conducted by the California Department of Transportation (CALTRANS). The unweighted SPLrms source level is 150 dB re 1 re 1 μPa at 10 m from the pile (CALTRANS, 2012).

    The source level for vibratory sheet pile driving and removal is based on measurements at the Elliott Bay Seawall Project. The unweighted SPLrms source level is 164 dB re 1 re 1 μPa at 10 m from the pile (Greenbusch 2015).

    Source levels for impact pile driving of the 24-in steel piles are based on impact test pile driving of the same steel pile during the Vashon Acoustic Monitoring by WSDOT (Laughlin, 2015). The unweighted back-calculated source levels at 10 m are 174 dB re 1 μPa2-s for single strike SEL (SELss) and 189 dB re 1 μPa for SPLrms.

    Source levels for impact pile driving of the 30-in steel pile are based on impact test pile driving for the 36-in steel pile at Mukilteo in November 2006. Recordings of the impact pile driving that were made at a distance of 10 m from the pile were analyzed using Matlab. The results show that the unweighted source levels are 178 dB re 1 μPa2-s for SELss and 193 dB re 1 μPa for SPLrms.

    A summary of source levels from different pile driving and pile removal activities is provided in Table 4.

    Table 4—Summary of In-Water Pile Driving Source Levels [At 10 m from source] Method Pile type/size
  • (inch)
  • SEL (SELss
  • for impact
  • pile
  • driving),
  • dB re 1
  • μPa2-s
  • SPLrms,
  • dB re 1 μPa2
  • Vibratory driving/removal Steel, 24-in 162 162 Vibratory driving/removal Steel, 30-in 174 174 Vibratory driving Steel, 36-in 177 177 Vibratory driving Steel shaft, 78-in 180 180 Vibratory driving Steel shaft, 120-in 180 180 Vibratory driving Steel H-pile, 12-in 150 150 Vibratory driving/removal Steel sheet 164 164 Impact driving Steel, 24-in 174 189 Impact driving Steel, 30-in 178 193

    These source levels are used to compute the Level A ensonified zones and to estimate the Level B harassment zones. For Level A harassment zones, zones calculated using cumulative SEL are all larger than those calculated using SPLpeak, therefore, only zones based on cumulative SEL for Level A harassment are used.

    Source spectrum of the 36-in steel pile recording is used for spectral modeling for the 24-, 30-, and 36-in steel pile vibratory pile driving and removal to calculate Level A exposure distances based on cumulative SEL metric (see below).

    For other piles where no recording is available, source modeling cannot be performed. In such cases, the weighting factor adjustment (WFA) recommended by NMFS acoustic guidance (NMFS 2016) was used to determine Level A exposure distances.

    Estimating Injury Zones

    Calculation and modeling of applicable ensonified zones are based on source measurements of comparable types and sizes of piles driven by different methods (impact vs. vibratory hammers) as described above. As mentioned earlier, isopleths for injury zones are based on cumulative SEL (L E) criteria.

    For peak SPL (Lpk), distances to marine mammal injury thresholds were calculated using a simple geometric spreading model using a transmission loss coefficient of 15:

    EN10MY17.003 where SL Measure is the measured source level in dB re 1 μPa, EL is the specific received level of threshold, D Measure is the distance (m) from the source where measurements were taken, and R is the distance (radius) of the isopleth to the source in meters.

    For cumulative SEL (L E), distances to marine mammal exposure thresholds were computed using spectral modeling that incorporates frequency specific absorption. First, representative pile driving sounds recorded during test pile driving with impact and vibratory hammers were used to generate power spectral densities (PSDs), which describe the distribution of power into frequency components composing that sound, in 1-Hz bins. Parseval's theorem, which states that the sum of the square of a function is equal to the sum of the square of its transform, was applied to ensure that all energies within a strike (for impact pile driving) or a given period of time (for vibratory pile driving) were captured through the fast Fourier transform, an algorithm that converts the signal from its original domain (in this case, time series) to a representation in frequency domain. For impact pile driving, broadband PSDs were generated from SPLrms time series with a time window that contains 90 percent of each pulse energy. For vibratory pile driving, broadband PSDs were generated from a series of continuous 1-second SEL. Broadband PSDs were then adjusted based on weighting functions of marine mammal hearing groups (Finneran 2016) by using the weighting function as a band-pass filter. For impact pile driving, cumulative exposures (E sum) were computed by multiplying the single rms pressure squared by rms pulse duration for the specific strike, then by the number of strikes (provided in Table 1) required to drive one pile, then by the number of piles to be driven in a given day, as shown in the equation below:

    EN10MY17.004 where p rms,i is the rms pressure, τ is the rms pulse duration for the specific strike, N s is the anticipated number of strikes (provided in Table 1) needed to install one pile, and N is the number of total piles to be installed.

    For vibratory pile driving, cumulative exposures were computed by summing 1-second noise exposure by the duration needed to drive on pile (provided in Table 1), then by the number of piles to be driven in a given day, as shown in the equation below:

    EN10MY17.005 where E 1s is the 1-second noise exposure, and Δt is the duration (provided in Table 1) need to install 1 pile by vibratory piling.

    Frequency-specific transmission losses, TL(f), were then computed using practical spreading along with frequency-specific absorption coefficients that were computed with nominal seawater properties (i.e., salinity = 35 psu, pH = 8.0) at 15° C at the surface by

    EN10MY17.006 where α(f) is dB/km, and R is the distance (radius) of the specific isopleth to the source in meters. For broadband sources such as those from pile driving, the transmission loss is the summation of the frequency-specific results. Approach to Estimate Behavioral Zones

    As mentioned earlier, isopleths to Level B behavioral zones are based on root-mean-square SPL (SPLrms) that are specific for impulse (impact pile driving) and non-impulse (vibratory pile driving) sources. Distances to marine mammal behavior thresholds were calculated using a simple geometric spreading equation as shown in Equation (4).

    A summary of the measured and modeled harassment zones is provided in Table 5. The maximum distance is 20,500 m from the source, since this is where landmass intercepts underwater sound propagation.

    Table 5—Distances to Harassment Zones Pile type, size & pile driving method Injury zone (m) LF cetacean MF cetacean HF cetacean Phocid Otariid Behavior zone
  • (m)
  • Vibratory removal, 24-in steel pile, 3 piles/day 10 10 55 10 10 6,040 Vibratory driving, 24-in steel pile, 3 piles/day 175 45 995 85 10 6,040 Vibratory removal, 30-in steel pile, 2 piles/day 55 10 345 25 10 * 20,500 Vibratory removal, 30-in steel pile, 7 piles/day 125 35 725 55 10 * 20,500 Vibratory driving, 30-in steel pile, 3 piles/day 175 45 995 85 10 * 20,500 Vibratory driving, 36-in steel pile, 3 piles/day 175 45 995 85 10 * 20,500 Vibratory driving, 78-in steel shaft, 1 pile/day 126 11 186 77 5 * 20,500 Vibratory driving, 120-in steel shaft, 1 pile/day 126 11 186 77 5 * 20,500 Vibratory driving, steel 12-in H-pile, 10 piles/day 4 1 6 2 0 1,000 Vibratory driving, steel sheet, 3 piles/day 14 1 21 9 1 8,577 Vibratory removal, steel sheet, 6 piles/day 23 2 33 14 1 8,577 Impact proofing, 24-in steel pile, 3 piles/day 135 10 75 35 10 875 Impact driving, 30-in steel pile, 3 piles/day 1,065 10 505 225 10 1,585 Impact proofing, 30-in steel pile, 5 piles/day 355 10 175 75 10 1,585 * Landmass intercepts at a distance of 20,500m from project area.
    Estimated Takes From Proposed Construction Activity

    Incidental take is estimated for each species by estimating the likelihood of a marine mammal being present within a Level A or Level B harassment zone during active pile driving or removal. The Level A calculation includes a duration component, along with an assumption (which can lead to overestimates in some cases) that animals within the zone stay in that area for the whole duration of the pile driving activity within a day. For all marine mammal species except harbor seals, California sea lions, and northern elephant seals, estimated takes are calculated based on ensonified area for a specific pile driving activity multiplied by the marine mammal density in the action area, multiplied by the number of pile driving (or removal) days. In most cases, marine mammal density data are from the U.S. Navy Marine Species Density Database (Navy 2015). Harbor porpoise density is based on a recent study by Jefferson et al. (2016) for the Eastern Whidbey area near the Mukilteo Ferry Terminal. Harbor seal, northern elephant seal, and California sea lion takes are based on observations in the Mukilteo area, since these data provide the best information on distribution and presence of these species that are often associated with nearby haulouts (see below).

    The Level A take total was further adjusted by subtracting animals expected to occur within the exclusion zone, where pile driving activities are suspended when an animal is observed in or approaching the zone (see Mitigation section). Further, the number of Level B takes was adjusted to exclude those already counted for Level A takes.

    The harbor seal take estimate is based on local seal abundance information from monitoring during the Mukilteo pier removal project. Marine mammal visual monitoring during Mukilteo Ferry Terminal pier removal project showed an average daily observation of 7 harbor seals (WSDOT 2015). Based on a total of 175 pile driving days for the WSDOT Mukilteo Multimodal Phase 2 project, it is estimated that up to 1,225 harbor seals could be exposed to noise levels associated with “take”. Since 9 days would involve impact pile driving of 30-in piles with Level A harassment zones beyond the required shutdown zones (225 m vs 160 m shutdown zone), we consider that 63 harbor seals exposed during these 9 days would experience Level A harassment.

    The California sea lion take estimate is based on local sea lion abundance information during the Mukilteo Ferry Terminal pier removal project (WSDOT 2015). Marine mammal visual monitoring during the Mukilteo pier removal project indicates on average 7 sea lions were observed in the general area of the Mukilteo Ferry Terminal per day (WSDOT 2015). Based on a total of 175 pile driving days for the WSDOT Mukilteo Multimodal project, it is estimated that up to 1,225 California sea lions could be exposed to noise levels associated with “take”. Since the Level A harassment zones of otarids are all very small (max. 10 m, Table 5), we do not consider it likely that any sea lions would be taken by Level A harassment. Therefore, all California sea lion takes estimated here are expected to be by Level B harassment.

    Northern elephant seal is not common in the Mukilteo Multimodal Project area, however, their presence has been observed in Edmonds area just south of Mukilteo (Huey, Pers. Comm. April 2017). Therefore, a potential take of 20 animals by Level B harassment during the project period is assessed. Since northern elephant seal is very uncommon in the project area, we do not consider it likely that any elephant seal would be taken by Level A harassment.

    However, the method used in take estimates does not account for single individuals being taken multiple times during the entire project period of 175 days. Therefore, the percent of marine mammals that are likely to be taken for a given population would be far less than the ratio of numbers of animals taken divided by the population size. For harbor porpoise, the estimated incidences of takes at 6,759 animals would be 60.2% of the population, if each single take were a unique individual. However, this is highly unlikely because the results of telemetry and photo-identification studies in Washington waters have demonstrated that harbor porpoise shows site fidelity to small areas for periods of time that can extend between seasons (Hanson et al. 1999; Hanson 2007a, 2007b). Based on studies by Jefferson et al. (2016), harbor porpoise abundance in the East Whidbey region, which is adjunct to the Mukilteo Ferry Terminal construction, is 497, and harbor porpoise abundance in the entire surrounding area of North Puget Sound is 1,798.

    For Southern Resident killer whales, potential takes based on density calculation showed that 4 animals could be exposed to noise levels for Level B harassment. However, mitigation measures prescribed below will prevent such takes.

    A summary of estimated marine mammal takes is listed in Table 6.

    Table 6—Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Cause Level A or Level B Harassment Species Estimated
  • Level A take
  • Estimated
  • Level B take
  • Estimated
  • total take
  • Abundance Percentage
    Pacific harbor seal 63 1,162 1,225 11,036 11.1 California sea lion 0 1,225 1,225 296,750 0.41 Northern elephant seal 0 20 20 179,000 0.01 Steller sea lion 0 232 232 71,562 0.32 Killer whale, transient 0 21 21 243 8.64 Killer whale, Southern Resident 0 0 0 78 0 Gray whale 0 45 45 20,990 0.21 Humpback whale 0 6 6 1,918 0.31 Harbor porpoise 61 6,698 6,759 11,233 60.2 Dall's porpoise 4 417 421 25,750 1.63
    Proposed Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully balance two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, which considers the nature of the potential adverse impact being mitigated (likelihood, scope, range), as well as the likelihood that the measure will be effective if implemented; and the likelihood of effective implementation, and; (2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Mitigation for Marine Mammals and Their Habitat 1. Time Restriction

    Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In addition, all in-water construction will be limited to the period between August 1, 2017, and February 15, 2018.

    2. Use of Noise Attenuation Devices

    To reduce impact on marine mammals, WSDOT shall use a marine pile driving energy attenuator (i.e., air bubble curtain system), or other equally effective sound attenuation method (e.g., dewatered cofferdam) for all impact pile driving.

    3. Establishing and Monitoring Level A, Level B Harassment Zones, and Exclusion Zones

    Before the commencement of in-water construction activities, which include impact pile driving and vibratory pile driving and pile removal, WSDOT shall establish Level A harassment zones where received underwater SPLs or SELcum could cause PTS (see above).

    WSDOT shall also establish Level B harassment zones where received underwater SPLs are higher than 160 dBrms and 120 dBrms re 1 μPa for impulse noise sources (impact pile driving) and non-impulses noise sources (vibratory pile driving and pile removal), respectively.

    WSDOT shall establish a maximum 160-m Level A exclusion zone for all marine mammals except low-frequency baleen whales. For Level A harassment zones that are smaller than 160 m from the source, WSDOT shall establish exclusion zones that correspond to the estimated Level A harassment distances, but shall not be less than 10 m. For low-frequency baleen whales, WSDOT shall establish exclusion zones that correspond to the actual Level A harassment distances, but shall not be less than 10 m.

    A summary of exclusion zones is provided in Table 7.

    Table 7—Exclusion Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups. Pile type, size and pile driving method Injury zone
  • (m)
  • LF cetacean MF cetacean HF cetacean Phocid Otariid
    Vibratory removal, 24-in steel pile, 3 piles/day 10 10 55 10 10 Vibratory removal, 30-in steel pile, 2 piles/day 55 10 160 25 10 Vibratory removal, 30-in steel pile, 7 piles/day 125 35 160 55 10 Vibratory driving, 24-, 30- & 36-in steel pile, 3 piles/day 175 45 160 85 10 Vibratory driving, 78-, 120-in steel shaft, 1 pile/day 126 11 160 77 10 Vibratory driving, steel 12-in H-pile, 10 piles/day 4 1 6 2 1 Vibratory driving, steel sheet, 3 piles/day 14 1 21 9 1 Vibratory removal, steel sheet, 6 piles/day 23 2 33 14 1 Impact proofing, 24-in steel pile, 3 piles/day 135 10 75 35 10 Impact driving, 30-in steel pile, 3 piles/day 1,065 10 160 160 10 Impact proofing, 30-in steel pile, 5 piles/day 355 10 160 75 10

    NMFS-approved protected species observers (PSO) shall conduct an initial survey of the exclusion zones to ensure that no marine mammals are seen within the zones before pile driving and pile removal of a pile segment begins. If marine mammals are found within the exclusion zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 30 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone.

    If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to commencement of pile driving, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mammal has exited the exclusion zone or 30 minutes have elapsed since the last sighting.

    4. Soft Start

    A “soft-start” technique is intended to allow marine mammals to vacate the area before the impact pile driver reaches full power. Whenever there has been downtime of 30 minutes or more without impact pile driving, the contractor will initiate the driving with ramp-up procedures described below.

    Soft start for impact hammers requires contractors to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. Each day, WSDOT will use the soft-start technique at the beginning of impact pile driving, or if pile driving has ceased for more than 30 minutes.

    5. Shutdown Measures

    WSDOT shall implement shutdown measures if a marine mammal is detected within an exclusion zone or is about to enter an exclusion zone listed in Table 6.

    WSDOT shall also implement shutdown measures if southern resident killer whales are sighted within the vicinity of the project area and are approaching the Level B harassment zone (or Zone of Influence, ZOI) during in-water construction activities.

    If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a Southern Resident killer whale or a transient killer whale, it shall be assumed to be a Southern Resident killer whale and WSDOT shall implement the shutdown measure.

    If a Southern Resident killer whale or an unidentified killer whale enters the ZOI undetected, in-water pile driving or pile removal shall be suspended until the whale exits the ZOI to avoid further level B harassment.

    Further, WSDOT shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA (if issued) and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.

    6. Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving for the day, the Orca Network and/or Center for Whale Research will be contacted by WSDOT to find out the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 (and growing) residents, scientists, and government agency personnel in the U.S. and Canada. Sightings are called or emailed into the Orca Network and immediately distributed to other sighting networks including: The NMFS Northwest Fisheries Science Center, the Center for Whale Research, Cascadia Research, the Whale Museum Hotline and the British Columbia Sightings Network.

    Sightings information collected by the Orca Network includes detection by hydrophone. The SeaSound Remote Sensing Network is a system of interconnected hydrophones installed in the marine environment of Haro Strait (west side of San Juan Island) to study orca communication, in-water noise, bottom fish ecology and local climatic conditions. A hydrophone at the Port Townsend Marine Science Center measures average in-water sound levels and automatically detects unusual sounds. These passive acoustic devices allow researchers to hear when different marine mammals come into the region. This acoustic network, combined with the volunteer (incidental) visual sighting network allows researchers to document presence and location of various marine mammal species.

    Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, all of which are described above, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density).

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas).

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat).

    • Mitigation and monitoring effectiveness.

    Proposed Monitoring Measures

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal monitoring for its Mukilteo Multimodal Project. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs shall meet the following requirements:

    1. Independent observers (i.e., not construction personnel) are required;

    2. At least one observer must have prior experience working as an observer;

    3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;

    4. Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

    5. NMFS will require submission and approval of observer CVs;

    Monitoring of marine mammals around the construction site shall be conducted using high-quality binoculars (e.g., Zeiss, 10 × 42 power). Due to the different sizes of ZOIs from different pile sizes, several different ZOIs and different monitoring protocols corresponding to a specific pile size will be established.

    • For Level A zones less than 160 m and Level B zones less than 1,000 m (i.e., vibratory 12-in H pile driving, 10 piles/day; impact proofing of 24-in steel piles, 3 piles/day), two land-based PSOs will monitor the exclusion zones and Level B harassment zone.

    • For Level A zones between 160 and 500 m, and Level B zones between 1,000 and 10,000 m (i.e., vibratory pile driving and removal of 24-in steel piles, 3 piles/day; vibratory driving and removal of steel sheet; and impact proofing of 30-in steel piles, 5 piles/day), 5 land-based PSOs and 1 vessel-based PSO on a ferry will monitor the Level A and Level B harassment zones.

    • For the rest of the pile driving and pile removal scenario, 5 land-based PSOs and 2 vessel-based PSOs on ferries will monitor the Level A and Level B harassment zones.

    Locations of the land-based PSOs and routes of monitoring vessels are shown in WSDOT's Marine Mammal Monitoring Plan, which is available online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

    To verify the required monitoring distance, the exclusion zones and ZOIs will be determined by using a range finder or hand-held global positioning system device.

    Proposed Reporting Measures

    WSDOT would be required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the IHA (if issued), whichever comes earlier. This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, WSDOT would address the comments and submit a final report to NMFS within 30 days.

    In addition, NMFS would require WSDOT to notify NMFS' Office of Protected Resources and NMFS' West Coast Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. WSDOT shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

    In the event that WSDOT finds an injured or dead marine mammal that is not in the construction area, WSDOT would report the same information as listed above to NMFS as soon as operationally feasible.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 7, given that the anticipated effects of WSDOT's Mukilteo Multimodal Project activities involving pile driving and pile removal on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis by species for this activity, or else species-specific factors would be identified and analyzed.

    Although a few marine mammal species (63 harbor seals, 61 harbor porpoises, and 4 Dall's porpoise) are estimated to experience Level A harassment in the form of PTS if they stay within the Level A harassment zone during the entire pile driving for the day, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals because most animals will avoid the area, and thus avoid injury. It is expected that, if hearing impairments occurs, most likely the affected animal would loss a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment. Hearing impairment that occur for these individual animals would be limited to the dominant frequency of the noise sources, i.e., in the low-frequency region below 2 kHz. Therefore, the degree of PTS is not likely to affect the echolocation performance of the two porpoise species, which use frequencies mostly above 100 kHz. Nevertheless, for all marine mammal species, it is known that in general animals avoid areas where sound levels could cause hearing impairment. Therefore it is not likely that an animal would stay in an area with intense noise that could cause severe levels of hearing damage. In addition, even if an animal receives a TTS, the TTS would be a one-time event from the exposure, making it unlikely that the TTS would evolve into PTS. Furthermore, Level A take estimates were based on the assumption that the animals are randomly distributed in the project area and would not avoid intense noise levels that could cause TTS or PTS. In reality, animals tend to avoid areas where noise levels are high (Richardson et al., 1995).

    For the rest of the three marine mammal species, takes that are anticipated and proposed to be authorized are expected to be limited to short-term Level B harassment (behavioral and TTS). Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal and the implosion noise. These behavioral distances are not expected to affect marine mammals' growth, survival, and reproduction due to the limited geographic area that would be affected in comparison to the much larger habitat for marine mammals in the Puget Sound. A few marine mammals could experience TTS if they occur within the Level B TTS ZOI. However, as discussed earlier in this document, TTS is a temporary loss of hearing sensitivity when exposed to loud sound, and the hearing threshold is expected to recover completely within minutes to hours. Therefore, it is not considered an injury.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. There is no ESA designated critical area in the vicinity of the Mukilteo Multimodal Project area. The project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, WSDOT's proposed construction activity at Mukilteo Ferry Terminal would not adversely affect marine mammal habitat.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals.

    The estimated takes are below 12 percent of the population for all marine mammals except harbor porpoise (Table 7). For harbor porpoise, the estimate of 6,759 incidences of takes would be 60.2 percent of the population, if each single take were a unique individual. However, this is highly unlikely because the harbor porpoise in Washington waters shows site fidelity to small areas for periods of time that can extend between seasons (Hanson et al. 1999; Hanson 2007a, 2007b). For example, Hanson et al. (1999) tracked a female harbor porpoise for 215 days, during which it remained exclusively within the southern Strait of Georgia region. Based on studies by Jefferson et al. (2016), harbor porpoise abundance in the East Whidbey region, which is adjunct to the Mukilteo Ferry Terminal construction, is 497, and harbor porpoise abundance in the entire surrounding area of North Puget Sound is 1,798. Therefore, if the estimated incidents of take accrued to all the animals expected to occur in the entire North Puget Sound area (1,798 animals), it would be 16.01 percent of the Washington inland water stock of the harbor porpoise.

    Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Subsistence Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Issuance of an MMPA authorization requires compliance with the ESA for any species that are listed or proposed as threatened or endangered.

    The humpback whale and the killer whale (southern resident distinct population segment (DPS)) are the only marine mammal species listed under the ESA that could occur in the vicinity of WSDOT's proposed construction project. Two DPSs of the humpback whale stock, the Mexico DPS and the Central America DPS, are listed as threatened and endangered under the ESA, respectively. NMFS' Office of Protected Resources has initiated consultation with NMFS' West Coast Regional Office under section 7 of the ESA on the issuance of an IHA to WSDOT under section 101(a)(5)(D) of the MMPA for this activity.

    NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to WSDOT for conducting Mukilteo Multimodal Project phase 2 between August 1, 2016, and February 15, 2017, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

    1. This Authorization is valid from August 1, 2017, through July 31, 2018.

    2. This Authorization is valid only for activities associated with in-water construction work at the Mukilteo Multimodal Project phase 2 in the State of Washington.

    3. (a) The species authorized taking by, Level A and Level B harassment and in the numbers shown in Table 6 are: Pacific harbor seal (Phoca vitulina), northern elephant seal (Mirounga angustirostris), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca), gray whale (Eschrichtius robustus), humpback whale (Megaptera novaeangliae), harbor porpoise (Phocoena phocoena), and Dall's porpoise (P. dalli).

    (b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:

    • Impact pile driving;

    • Vibratory pile driving; and

    • Vibratory pile removal.

    4. Prohibitions.

    (a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 6 of this notice. The taking by death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited unless separately authorized or exempted under the MMPA and may result in the modification, suspension, or revocation of this Authorization.

    (b) The taking of any marine mammal is prohibited whenever the required protected species observers (PSOs), required by condition 7(a), are not present in conformance with condition 7(a) of this Authorization.

    5. Mitigation.

    (a) Time Restriction. In-water construction work shall occur only during daylight hours.

    (b) Establishment of Level A and Level B Harassment Zones.

    (A) Before the commencement of in-water pile driving/removal activities, WSDOT shall establish Level A harassment zones. The modeled Level A zones are summarized in Table 5.

    (B) Before the commencement of in-water pile driving/removal activities, WSDOT shall establish Level B harassment zones. The modeled Level B zones are summarized in Table 5.

    (C) Before the commencement of in-water pile driving/removal activities, WSDOT shall establish exclusion zones. The proposed exclusion zones are summarized in Table 7.

    (c) Monitoring of marine mammals shall take place starting 30 minutes before pile driving begins until 30 minutes after pile driving ends.

    (d) Soft Start.

    (i) When there has been downtime of 30 minutes or more without pile driving, the contractor will initiate the driving with ramp-up procedures described below.

    (ii) Soft start for impact hammers requires contractors to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. Each day, WSDOT will use the soft-start technique at the beginning of impact pile driving, or if pile driving has ceased for more than 30 minutes.

    (e) Shutdown Measures.

    (i) WSDOT shall implement shutdown measures if a marine mammal is detected within or to be approaching the exclusion zones provided in Table 7 of this notice.

    (ii) WSDOT shall implement shutdown measures if southern resident killer whales (SRKWs) are sighted within the vicinity of the project area and are approaching the Level B harassment zone (zone of influence, or ZOI) during in-water construction activities.

    (iii) If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a SRKW or a transient killer whale, it shall be assumed to be a SRKW and WSDOT shall implement the shutdown measure identified in 6(e)(ii).

    (iv) If a SRKW enters the ZOI undetected, in-water pile driving or pile removal shall be suspended until the SRKW exits the ZOI to avoid further level B harassment.

    (v) WSDOT shall implement shutdown measures if the number of any allotted marine mammal takes reaches the limit under the IHA, if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during pile removal activities.

    (f) Coordination with Local Marine Mammal Research Network.

    Prior to the start of pile driving, WSDOT will contact the Orca Network and/or Center for Whale Research to get real-time information on the presence or absence of whales before starting any pile driving.

    6. Monitoring.

    (a) Protected Species Observers.

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal monitoring for its construction project. NMFS-approved PSOs will meet the following qualifications.

    (i) Independent observers (i.e., not construction personnel) are required.

    (ii) At least one observer must have prior experience working as an observer.

    (iii) Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience.

    (iv) Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer.

    (v) NMFS will require submission and approval of observer CVs.

    (b) Monitoring Protocols: PSOs shall be present on site at all times during pile removal and driving.

    (i) A 30-minute pre-construction marine mammal monitoring will be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring will be required after the last pile driving or pile removal of the day. If the constructors take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional 30-minute pre-construction marine mammal monitoring will be required before the next start-up of pile driving or pile removal.

    (iii) Marine mammal visual monitoring will be conducted for different ZOIs based on different sizes of piles being driven or removed, as shown in maps in WSDOT's Marine Mammal Monitoring Plan.

    (A) For Level A zones less than 160 m and Level B zones less than 1,000 m (i.e., vibratory 12-in H pile driving, 10 piles/day; impact proofing of 24-in steel piles, 3 piles/day), two land-based PSOs will monitor the exclusion zones and Level B harassment zone.

    (B) For Level A zones between 160 and 500 m, and Level B zones between 1,000 and 10,000 m (i.e., vibratory pile driving and removal of 24-in steel piles, 3 piles/day; vibratory driving and removal of steel sheet; and impact proofing of 30-in steel piles, 5 piles/day), 5 land-based PSOs and 1 vessel-based PSO on a ferry will monitor the Level A and Level B harassment zones.

    (C) For the rest of the pile driving and pile removal scenario, 5 land-based PSOs and 2 vessel-based PSOs on ferries will monitor the Level A and Level B harassment zones.

    (iv) If marine mammals are observed, the following information will be documented:

    (A) Species of observed marine mammals;

    (B) Number of observed marine mammal individuals;

    (C) Behavior of observed marine mammals;

    (D) Location within the ZOI; and

    7. Reporting:

    (a) WSDOT shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work or within 90 days of the expiration of the IHA, whichever comes first. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.

    (b) If comments are received from NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    (c) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by this Authorization (if issued), such as an injury, serious injury, or mortality, WSDOT shall immediately cease all operations and immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the following information:

    (i) Time, date, and location (latitude/longitude) of the incident;

    (ii) description of the incident;

    (iii) status of all sound source use in the 24 hours preceding the incident;

    (iv) environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth);

    (v) description of marine mammal observations in the 24 hours preceding the incident;

    (vi) species identification or description of the animal(s) involved;

    (vii) the fate of the animal(s); and

    (viii) photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with WSDOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. WSDOT may not resume their activities until notified by NMFS via letter, email, or telephone.

    (E) In the event that WSDOT discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), WSDOT will immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with WSDOT to determine whether modifications in the activities are appropriate.

    (F) In the event that WSDOT discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), WSDOT shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators, within 24 hours of the discovery. WSDOT shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. WSDOT can continue its operations under such a case.

    8. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

    9. A copy of this Authorization must be in the possession of each contractor who performs the construction work at the Mukilteo Ferry Terminal.

    Request for Public Comments

    We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHA for the WSDOT's Mukilteo Multimodal Project Phase 2. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.

    Dated: May 4, 2017. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2017-09417 Filed 5-9-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF403 New England Fishery Management Council, Public Hearings AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; Public hearings, request for comments.

    SUMMARY:

    The New England Fishery Management Council will hold six public hearings and one webinar to solicit comments on the Omnibus Deep Sea Coral Amendment.

    DATES:

    These meetings will be held May 22-26, 2017. For specific dates and times, see SUPPLEMENTARY INFORMATION. Written Public Comments must be received on or before 5 p.m. e.s.t., June 5, 2017; comments received prior to May 25, 2017 will be reviewed by the Habitat Committee at their May 30, 2017 committee meeting.

    ADDRESSES:

    The hearing document is accessible electronically via the internet http://www.nefmc.org/library/omnibus-deep-sea-coral-amendment or by request to Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950; telephone: (978) 465-0492.

    Meeting addresses: The meetings will be held in Montauk, NY, Narragansett, RI, New Bedford, MA, Gloucester, MA, Portsmouth, NH, Ellsworth, ME and via webinar. For specific locations, see SUPPLEMENTARY INFORMATION.

    Public Comments: Written public hearing comments on the Omnibus Deep Sea Coral Amendment may be sent by any of the following methods: Mail to Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950; email to the following address: [email protected] or fax to (978) 465-3116.

    FOR FURTHER INFORMATION:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; phone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Background

    The New England Fishery Management Council is conducting seven public hearings to solicit comments on the alternatives under consideration in the Draft Omnibus Deep-Sea Coral Amendment. More specifically, the Council is seeking feedback from the public on which alternatives should be selected and why. These hearings are being held by the Council in accordance with the National Environmental Policy Act. The Council plans to take final action on the amendment during its June 20-22, 2017 meeting in Portland, ME.

    Deep-sea corals are fragile, slow-growing organisms that play an important role in the marine ecosystem and are vulnerable to various types of disturbance of the seafloor. The alternatives are designed to reduce the potential impacts of fishing activity on corals, as allowed under the Council's discretionary authority. Restrictions on bottom tending gear are being considered, with possible exemptions for some or all types of fixed gears. Potential coral management areas are located off the eastern Maine coast, in Jordan Basin and Georges Basin in the offshore Gulf of Maine, and in the canyon and slope region south of Georges Bank. The hearings are being held by the Council in accordance with the National Environmental Policy Act.

    During each hearing, Council staff will brief the public on the draft amendment before receiving comments. The hearings will begin promptly at the time indicated above. If all attendees who wish to do so have provided their comments prior to the end time indicated, the hearing may conclude early. To the extent possible, the Council may extend hearings beyond the end time indicated above to accommodate all attendees who wish to speak.

    Public Hearing, Dates and Locations 1. Monday, May 22, 2017, 6-8 p.m., Montauk Playhouse Community Center, 240 Edgemere Street, Montauk, NY 11954 2. Tuesday, May 23, 2017, 1-3 p.m., University of Rhode Island Bay Campus, Corless Auditorium, 215 South Ferry Road