Federal Register Vol. 80, No.106,

Federal Register Volume 80, Issue 106 (June 3, 2015)

Page Range31461-31830
FR Document

80_FR_106
Current View
Page and SubjectPDF
80 FR 31463 - Integration of National Bank and Federal Savings Association Regulations: Licensing RulesPDF
80 FR 31829 - National Oceans Month, 2015PDF
80 FR 31827 - National Caribbean-American Heritage Month, 2015PDF
80 FR 31825 - Lesbian, Gay, Bisexual, and Transgender Pride Month, 2015PDF
80 FR 31823 - Great Outdoors Month, 2015PDF
80 FR 31819 - African-American Music Appreciation Month, 2015PDF
80 FR 31628 - Self-Regulatory Organizations; The NASDAQ Stock Market, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 4626(b)(3)PDF
80 FR 31642 - Peninsula Corridor Joint Powers Board-Petition for Declaratory OrderPDF
80 FR 31486 - Fisheries Off West Coast States; the Highly Migratory Species Fishery; ClosurePDF
80 FR 31596 - Product Cancellation Order for Certain Pesticide RegistrationsPDF
80 FR 31481 - Alkyl (C8-20PDF
80 FR 31624 - Establishment of Atomic Safety and Licensing Board; Entergy Nuclear Operations, Inc.PDF
80 FR 31598 - Alternative Method for Calculating Off-Cycle Credits Under the Light-Duty Vehicle Greenhouse Gas Emissions Program: Applications From Fiat Chrysler Automobiles, Ford Motor Company, and General Motors CorporationPDF
80 FR 31634 - Notice of Request To Release Airport PropertyPDF
80 FR 31470 - Completion of Requirement To Promulgate Emissions StandardsPDF
80 FR 31560 - Oil and Gas and Sulphur Operations on the Outer Continental Shelf-Blowout Preventer Systems and Well ControlPDF
80 FR 31571 - Central Idaho Resource Advisory CommitteePDF
80 FR 31583 - 36(b)(1) Arms Sales NotificationPDF
80 FR 31612 - National Institute of Arthritis and Musculoskeletal and Skin Diseases: Notice of Closed MeetingPDF
80 FR 31611 - Center for Scientific Review: Notice of Closed MeetingsPDF
80 FR 31610 - National Institute of Arthritis and Musculoskeletal and Skin Diseases: Notice of Closed MeetingPDF
80 FR 31609 - National Institute of Mental Health: Notice of Closed MeetingsPDF
80 FR 31610 - National Institute of Mental Health: Notice of Closed MeetingsPDF
80 FR 31608 - Center for Scientific Review: Notice of Closed MeetingsPDF
80 FR 31608 - Center for Scientific Review: Notice of Closed MeetingPDF
80 FR 31643 - Agency Requests for Reinstatement of a Previously Approved Information Collection(s): Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments and for Grants and Cooperative Agreements With Institutions of Higher Education, Hospitals, and Other Nonprofit OrganizationsPDF
80 FR 31612 - Agency Information Collection Activities: Application for Foreign-Trade Zone Admission and/or Status Designation, and Application for Foreign-Trade Zone Activity PermitPDF
80 FR 31636 - Qualification of Drivers; Exemption Applications; VisionPDF
80 FR 31538 - Emergency Solutions Grants (ESG) Program, Solicitation of Comment on Specific IssuesPDF
80 FR 31643 - Michael Williams-Continuance in Control Exemption-Boot Hill & Western Railway Holding Co., Inc.PDF
80 FR 31642 - San Joaquin Valley Railroad Co.-Amended Lease and Operation Exemption-Sunset Railway CompanyPDF
80 FR 31641 - Motor Carrier Safety Advisory Committee (MCSAC): Public MeetingPDF
80 FR 31594 - Authorization of SubgrantsPDF
80 FR 31588 - Applications for New Awards; Native American-Serving Nontribal Institutions ProgramPDF
80 FR 31580 - 36(b)(1) Arms Sales NotificationPDF
80 FR 31560 - Oil and Gas Leasing; Royalty on Production, Rental Payments, Minimum Acceptable Bids, Bonding Requirements, and Civil Penalty AssessmentsPDF
80 FR 31601 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Disclosure Regarding Additional Risks in Direct-to-Consumer Prescription Drug Television AdvertisementsPDF
80 FR 31602 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Guidance for Industry, Researchers, Patient Groups, and FDA Staff on Meetings With the Office of Orphan Products DevelopmentPDF
80 FR 31603 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Biosimilars User Fee Cover Sheet; Form FDA 3792PDF
80 FR 31634 - Fine Arts Committee Notice of MeetingPDF
80 FR 31575 - Caribbean Fishery Management Council (CFMC); Public MeetingPDF
80 FR 31575 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing PermitsPDF
80 FR 31635 - Qualification of Drivers; Exemption Applications; VisionPDF
80 FR 31604 - Memorandum of Understanding Addressing Certain Distributions of Compounded Human Drug Products Between the States and the Food and Drug Administration; Extension of Comment PeriodPDF
80 FR 31602 - Generic Drug User Fees; Stakeholder Meetings on Generic Drug User Fee Amendments of 2012 Reauthorization; Request for Notification of Stakeholder Intention To ParticipatePDF
80 FR 31640 - Qualification of Drivers; Exemption Applications; VisionPDF
80 FR 31605 - National Vaccine Injury Compensation Program; List of Petitions ReceivedPDF
80 FR 31604 - Graduate Psychology Education ProgramPDF
80 FR 31623 - National Council on the Arts 185th MeetingPDF
80 FR 31461 - Expanding the Size of the Board of Immigration AppealsPDF
80 FR 31610 - Proposed Collection; 60-Day Comment Request; Evaluation of the Science Education Partnership Award (SEPA) Program, ODPDF
80 FR 31466 - Listing of Color Additives Exempt From Certification; Synthetic Iron Oxide; Confirmation of Effective DatePDF
80 FR 31521 - Schedules of Controlled Substances: Removal of [123PDF
80 FR 31587 - Proposed Collection; Comment RequestPDF
80 FR 31622 - National Advisory Committee on Occupational Safety and Health (NACOSH)PDF
80 FR 31632 - Self-Regulatory Organizations; ICE Clear Europe Limited; Order Approving Proposed Rule Change Relating to CDS Procedures for CDX North America Index CDS ContractsPDF
80 FR 31627 - Self-Regulatory Organizations; Boston Stock Exchange Clearing Corporation; Notice of Filing of Proposed Rule Change To Amend the Amended and Restated Certificate of Incorporation and By-Laws of The NASDAQ OMX Group, Inc.PDF
80 FR 31625 - Self-Regulatory Organizations; Stock Clearing Corporation of Philadelphia; Notice of Filing of Proposed Rule Change To Amend the Amended and Restated Certificate of Incorporation and By-Laws of The NASDAQ OMX Group, Inc.PDF
80 FR 31571 - National Urban and Community Forestry Advisory Council MeetingPDF
80 FR 31618 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Allseen Alliance, Inc.PDF
80 FR 31619 - Notice Pursuant to The National Cooperative Research and Production Act of 1993-DVD Copy Control AssociationPDF
80 FR 31619 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Petroleum Environmental Research Forum Project No. 2013-10, Pressure Relief Valve (PRV) Stability Research ProgramPDF
80 FR 31573 - Export Trade Certificate of ReviewPDF
80 FR 31574 - Meeting of the Advisory Committee on Commercial Remote SensingPDF
80 FR 31485 - Principles of Reasonable Cost Reimbursement; Payment for End-Stage Renal Disease Services; Optional Prospectively Determined Payment Rates for Skilled Nursing FacilitiesPDF
80 FR 31572 - Request for Nominations of Members To Serve on the National Advisory Committee on Racial, Ethnic, and Other PopulationsPDF
80 FR 31595 - Pesticide Product Registration; Receipt of Applications for New Uses; Correction and Reopening of Comment PeriodPDF
80 FR 31576 - Office Depot, Inc., Provisional Acceptance of a Settlement Agreement and OrderPDF
80 FR 31561 - Federal Acquisition Regulation; Consolidation and Bundling of Contract RequirementsPDF
80 FR 31579 - Intent To Grant an Exclusive License for a U.S. Government-Owned InventionPDF
80 FR 31579 - Intent To Grant an Exclusive License of U.S. Government-Owned PatentsPDF
80 FR 31467 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WAPDF
80 FR 31574 - Civil Nuclear Energy Export Opportunity SeminarPDF
80 FR 31617 - Renewal of Approved Information Collection; OMB Control No. 1004-0034PDF
80 FR 31624 - New Postal ProductPDF
80 FR 31466 - Drawbridge Operation Regulation; Columbia River, Vancouver, WAPDF
80 FR 31607 - National Institute of Environmental Health Sciences; Notice of Closed MeetingsPDF
80 FR 31607 - National Institute of Environmental Health Sciences; Notice of Closed MeetingPDF
80 FR 31609 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingsPDF
80 FR 31586 - Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee MeetingPDF
80 FR 31620 - Maritime Advisory Committee for Occupational Safety and Health (MACOSH)PDF
80 FR 31467 - Security Zone; Portland Rose Festival on Willamette River, Portland, ORPDF
80 FR 31619 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Notice of Termination, Suspension, Reduction, or Increase in Benefit PaymentsPDF
80 FR 31520 - Veterinary Feed Directive Regulation Questions and Answers; Draft Guidance for Industry; AvailabilityPDF
80 FR 31707 - Veterinary Feed DirectivePDF
80 FR 31568 - Notice of Request for Extension of Approval of an Information Collection; Special Need Requests Under the Plant Protection ActPDF
80 FR 31570 - Notice of Request for Extension of Approval of an Information Collection; Health Certificates for the Export of Live Crustaceans, Finfish, Mollusks, and Related ProductsPDF
80 FR 31569 - Notice of Request for an Extension of Approval of an Information Collection; Generic Clearance for the Collection of Qualitative Feedback on Agency Service DeliveryPDF
80 FR 31625 - Nanotechnology-Related Public WebinarsPDF
80 FR 31487 - Energy Conservation Program: Test Procedures for Ceiling FansPDF
80 FR 31737 - Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy Training and Testing Activities in the Northwest Training and Testing Study AreaPDF
80 FR 31613 - Land Acquisitions; Soboba Band of Luiseno Indians of CaliforniaPDF
80 FR 31525 - International Traffic in Arms: Revisions to Definitions of Defense Services, Technical Data, and Public Domain; Definition of Product of Fundamental Research; Electronic Transmission and Storage of Technical Data; and Related DefinitionsPDF
80 FR 31505 - Revisions to Definitions in the Export Administration RegulationsPDF
80 FR 31645 - Energy Conservation Program: Energy Conservation Standards for Residential DehumidifiersPDF

Issue

80 106 Wednesday, June 3, 2015 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Forest Service

Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance for Collection of Qualitative Feedback on Agency Service Delivery, 31569-31570 2015-13369 Health Certificates for the Export of Crustaceans, Finfish, Mollusks, and Related Products, 31570-31571 2015-13370 Special Need Requests Under the Plant Protection Act, 31568 2015-13371 Antitrust Division Antitrust Division NOTICES Changes Under National Cooperative Research and Production Act: AllSeen Alliance, Inc., 31618-31619 2015-13447 DVD Copy Control Association, 31619 2015-13446 Pressure Relief Valve Stability Research Program; Petroleum Environmental Research Forum Project, 31619 2015-13445 Army Army Department NOTICES Intent To Grant an Exclusive License of U.S. Government-Owned Invention, 31579-31580 2015-13420 Intent To Grant an Exclusive License of U.S. Government-Owned Patents, 31579 2015-13419 Safety Enviromental Enforcement Bureau of Safety and Environmental Enforcement PROPOSED RULES Oil and Gas and Sulphur Operations: Oil and Gas and Sulphur Operations in the Outer Continental Shelf; Blowout Preventer Systems and Well Control, 31560 2015-13499 Census Bureau Census Bureau NOTICES Requests for Nominations: National Advisory Committee on Racial, Ethnic, and Other Populations, 31572-31573 2015-13431 Centers Medicare Centers for Medicare & Medicaid Services RULES Principles of Reasonable Cost Reimbursement; Payment for End-Stage Renal Disease Services; Optional Prospectively Determined Payment Rates for Skilled Nursing Facilities; CFR Correction, 31485 2015-13434 Coast Guard Coast Guard RULES Drawbridge Operations: Columbia River, Vancouver, WA; Deviation, 31466 2015-13411 Lake Washington Ship Canal, Seattle, WA; Deviation, 31467 2015-13417 Security Zones: Portland Rose Festival on Willamette River, Portland, OR, 31467-31470 2015-13397 Commerce Commerce Department See

Census Bureau

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Comptroller Comptroller of the Currency RULES Integration of National Bank and Federal Savings Association Regulations: Licensing Rules, 31463-31466 C1--2015--11229 Consumer Product Consumer Product Safety Commission NOTICES Settlement Agreements: Office Depot, Inc.; Provisional Acceptance, 31576-31579 2015-13422 Defense Department Defense Department See

Army Department

PROPOSED RULES Federal Acquisition Regulations: Consolidation and Bundling of Contract Requirements, 31561-31567 2015-13421 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31587-31588 2015-13454 Arms Sales, 31580-31586 2015-13478 2015-13497 Meetings: Judicial Proceedings Since Fiscal Year 2012 Amendments Panel, 31586-31587 2015-13400
Drug Drug Enforcement Administration PROPOSED RULES Schedules of Controlled Substances: Removal of [123I]Ioflupane From Schedule II, 31521-31525 2015-13455 Education Department Education Department NOTICES Applications for New Awards: Native American-Serving Nontribal Institutions Program, 31588-31594 2015-13480 Authorization of Subgrants, 31594-31595 2015-13481 Energy Department Energy Department PROPOSED RULES Energy Conservation Program: Standards for Residential Dehumidifiers, 31646-31705 2015-12773 Energy Conservation Programs: Test Procedures for Ceiling Fans, 31487-31505 2015-13169 Environmental Protection Environmental Protection Agency RULES Completion of Requirement To Promulgate Emission Standards, 31470-31481 2015-13500 Tolerance Requirements; Exemptions: Alkyl (C8-20) Polyglucoside Esters, 31481-31485 2015-13509 NOTICES Light-duty Vehicle Greenhouse Gas Emissions Program: Alternative Method for Calculating Off-Cycle Credits—Applications From Fiat Chrysler Automobiles, Ford Motor Co., and General Motors Corp., 31598-31601 2015-13503 Pesticide Product Registrations: Applications for New Uses; Correction, 31595-31596 2015-13423 Product Cancellation Order for Certain Pesticide Registrations, 31596-31598 2015-13513 Executive Office Executive Office for Immigration Review RULES Expanding the Size of the Board of Immigration Appeals, 31461-31463 2015-13459 Federal Aviation Federal Aviation Administration NOTICES Airport Property Releases: Liberal Mid-America Regional Airport, Liberal, KS, 31634-31635 2015-13502 Federal Motor Federal Motor Carrier Safety Administration NOTICES Meetings: Motor Carrier Safety Advisory Committee, 31641-31642 2015-13482 Qualification of Drivers; Exemption Applications: Vision, 31635-31641 2015-13464 2015-13467 2015-13486 Food and Drug Food and Drug Administration RULES Color Additives: Synthetic Iron Oxide; Certification Exemption, 31466 2015-13457 Veterinary Feed Directive, 31708-31735 2015-13393 PROPOSED RULES Veterinary Feed Directive Regulation Questions and Answers, 31520-31521 2015-13394 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Biosimilars User Fee Cover Sheet, 31603-31604 2015-13471 Disclosure Regarding Additional Risks in Direct-to-Consumer Prescription Drug Television Advertisements, 31601-31602 2015-13473 Guidance for Industry, Researchers, Patient Groups, and FDA Staff on Meetings With the Office of Orphan Products Development, 31602 2015-13472 Guidance for Industry and Staff: Memorandum of Understanding Addressing Certain Distributions of Compounded Human Drug Products Between the States and the Food and Drug Administration, 31604 2015-13466 Meetings: Stakeholder Meetings on Generic Drug User Fee Amendments Reauthorization; Intention to Participate, 31602-31603 2015-13465 Forest Forest Service NOTICES Meetings: Central Idaho Resource Advisory Committee, 31571-31572 2015-13498 National Urban and Community Forestry Advisory Council, 31571 2015-13448 General Services General Services Administration PROPOSED RULES Federal Acquisition Regulations: Consolidation and Bundling of Contract Requirements, 31561-31567 2015-13421 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Funding Availability: Graduate Psychology Education Program, 31604-31605 2015-13461 Petitions: National Vaccine Injury Compensation Program, 31605-31607 2015-13462 Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department PROPOSED RULES Emergency Solutions Grants Program, 31538-31559 2015-13485 Indian Affairs Indian Affairs Bureau NOTICES Land Acquisitions: Soboba Band of Luiseno Indians of California, 31613-31617 2015-12985 Industry Industry and Security Bureau PROPOSED RULES Definitions in the Export Administration Regulations, 31505-31520 2015-12843 Interior Interior Department See

Bureau of Safety and Environmental Enforcement

See

Indian Affairs Bureau

See

Land Management Bureau

International Trade Adm International Trade Administration NOTICES Export Trade Certificates of Review: California Almond Export Association, LLC, 31573-31574 2015-13444 Meetings: Civil Nuclear Energy Export Opportunity Seminar, 31574 2015-13416 Justice Department Justice Department See

Antitrust Division

See

Drug Enforcement Administration

See

Executive Office for Immigration Review

Labor Department Labor Department See

Occupational Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Notice of Termination, Suspension, Reduction, or Increase in Benefit Payments, 31619-31620 2015-13395
Land Land Management Bureau PROPOSED RULES Oil and Gas Leasing: Royalty on Production, Rental Payments, Minimum Acceptable Bids, Bonding Requirements, and Civil Penalty Assessments, 31560-31561 2015-13474 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31617-31618 2015-13415 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulations: Consolidation and Bundling of Contract Requirements, 31561-31567 2015-13421 National Endowment for the Arts National Endowment for the Arts NOTICES Meetings: National Council on the Arts, 31623-31624 2015-13460 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Evaluation of the Science Education Partnership Award Program, Office of the Director, 31610-31611 2015-13458 Meetings: Center for Scientific Review, 31608, 31611-31612 2015-13490 2015-13491 2015-13495 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 31610, 31612 2015-13494 2015-13496 National Institute of Environmental Health Sciences, 31607-31608 2015-13404 2015-13405 National Institute of Mental Health, 31609-31610 2015-13492 2015-13493 National Institute of Neurological Disorders and Stroke, 31609 2015-13403 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States: Highly Migratory Species Fishery; Closure, 31486 2015-13601 PROPOSED RULES Takes of Marine Mammals Incidental to Specified Activities: U.S. Navy Training and Testing Activities in the Northwest Training and Testing Study Area, 31738-31817 2015-13038 NOTICES Applications for Exempted Fishing Permits: General Provisions for Domestic Fisheries, 31575-31576 2015-13468 Meetings: Advisory Committee on Commercial Remote Sensing, 31574-31575 2015-13439 Caribbean Fishery Management Council, 31575 2015-13469 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Atomic Safety Licensing Board: Entergy Nuclear Operations, Inc., 31624 2015-13505 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Meetings: National Advisory Committee on Occupational Safety and Health, 31622-31623 2015-13452 Requests for Nominations: Maritime Advisory Committee for Occupational Safety and Health, 31620-31622 2015-13399 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 31624-31625 2015-13412 2015-13413 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: African-American Music Appreciation Month (Proc. 9288), 31819-31822 2015-13745 Great Outdoors Month (Proc. 9289), 31823-31824 2015-13746 Lesbian, Gay, Bisexual, and Transgender Pride Month (Proc. 9290), 31825-31826 2015-13747 National Caribbean-American Heritage Month (Proc. 9291), 31827-31828 2015-13748 National Oceans Month (Proc. 9292), 31829-31830 2015-13752 Science Technology Science and Technology Policy Office NOTICES Meetings: Public Webinars, 31625 2015-13178 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Boston Stock Exchange Clearing Corp., 31627-31628 2015-13450 ICE Clear Europe, Ltd., 31632-31634 2015-13451 Stock Clearing Corp. of Philadelphia, 31625-31626 2015-13449 The NASDAQ Stock Market, LLC, 31628-31632 2015-13616 State Department State Department PROPOSED RULES International Traffic in Arms: Definitions of Defense Services, Technical Data, and Public Domain; Definition of Product of Fundamental Research; Electronic Transmission and Storage of Technical Data; and Related Definitions, 31525-31538 2015-12844 NOTICES Meetings: Fine Arts Committee, 31634 2015-13470 Surface Transportation Surface Transportation Board NOTICES Continuance in Control Exemptions: Michael Williams; Boot Hill and Western Railway Holding Co., Inc., 31643 2015-13484 Lease and Operation Exemptions: San Joaquin Valley Railroad Co.; Sunset Railway Co., 31642-31643 2015-13483 Petitions for Declaratory Orders: Peninsula Corridor Joint Powers Board, 31642 2015-13603 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Surface Transportation Board

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 31643-31644 2015-13488
Treasury Treasury Department See

Comptroller of the Currency

Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Foreign-Trade Zone Admission and/or Status Designation, and Application for Foreign-Trade Zone Activity Permit, 31612-31613 2015-13487 Separate Parts In This Issue Part II Energy Department, 31646-31705 2015-12773 Part III Health and Human Services Department, Food and Drug Administration, 31708-31735 2015-13393 Part IV Commerce Department, National Oceanic and Atmospheric Administration, 31738-31817 2015-13038 Part V Presidential Documents, 31819-31830 2015-13745 2015-13746 2015-13747 2015-13748 2015-13752 Reader Aids

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80 106 Wednesday, June 3, 2015 Rules and Regulations DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Part 1003 [Docket No. EOIR 183; A.G. Order No. 3534-2015] RIN 1125-AA79 Expanding the Size of the Board of Immigration Appeals AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Interim rule with request for comments.

SUMMARY:

This rule amends the Department of Justice regulations relating to the organization of the Board of Immigration Appeals (Board) by adding two Board member positions, thereby expanding the Board to 17 members.

DATES:

Effective date: This rule is effective June 3, 2015. Comment date: Written comments must be submitted on or before August 3, 2015. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight eastern time at the end of that day.

ADDRESSES:

Please submit written comments to Jean King, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 20530. To ensure proper handling, please reference RIN No. 1125-AA79 or EOIR docket No. 183 on your correspondence. You may submit comments electronically or view an electronic version of this interim rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Jean King, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 20530, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION: I. Posting of Public Comments

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Such information includes personally identifiable information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personally identifiable information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFIABLE INFORMATION” in the first paragraph of your comment. You must also locate all the personally identifiable information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personally identifiable information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

II. Background

The Executive Office for Immigration Review (EOIR) administers the Nation's immigration court system. Generally, cases commence before an immigration judge when the Department of Homeland Security (DHS) files a charging document against an alien with the immigration court. See 8 CFR 1003.14(a). EOIR primarily decides whether foreign-born individuals who are charged by DHS with violating immigration law pursuant to the Immigration and Nationality Act (INA) should be ordered removed from the United States, or should be granted relief or protection from removal and be permitted to remain in the United States. EOIR's Office of the Chief Immigration Judge administers these adjudications in immigration courts nationwide.

Decisions of the immigration judges are subject to review by EOIR's appellate body, the Board of Immigration Appeals (Board), which currently comprises 15 permanent Board members. The Board is the highest administrative tribunal for interpreting and applying U.S. immigration law. The Board's decisions can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g) and (h). Decisions of the Board and the Attorney General are subject to judicial review.

III. Expansion of Number of Board Members

EOIR's mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws. This includes the initial adjudication of aliens' cases in immigration courts nationwide, as well as appellate review by the Board when appeals are timely filed. In order to more efficiently accomplish EOIR's commitment to promptly decide a large volume of cases, as well as review a large quantity of appeals of those cases, this rule amends the Department's regulations relating to the organization of the Board by adding two Board member positions, thereby expanding the Board from 15 to 17 members.1 This rule revises the third sentence of 8 CFR 1003.1(a)(1), leaving the remainder of paragraph (a)(1) unchanged.

1 The Department last expanded the number of Board members—from 11 to 15 members—on December 7, 2006, when it published in the Federal Register an interim rule amending 8 CFR 1003.1. See 71 FR 70855 (Dec. 7, 2006). On June 16, 2008, the Department published a final rule adopting, without change, the interim rule. See 73 FR 33875 (Jun. 16, 2008).

Expanding the number of Board members is necessary at this time for two primary reasons. First, EOIR is currently managing the largest caseload the immigration court system has ever seen. At the end of FY 2014, there were 418,861 total cases pending at the immigration courts, marking an increase of 62,831 cases pending above those at the end of FY 2013. See 2014 EOIR Stat. Y.B. W1.2 This total increase included an increase in the number of pending cases involving detained aliens. The efficient and timely adjudication of cases of detained aliens is the highest priority for EOIR and requires additional resources to handle the increased caseload. As the caseload in the immigration courts increases, the Department anticipates that the corresponding caseload at the Board will also expand.

2 EOIR's FY2014 Statistical Year Book, prepared by EOIR's Office of Planning, Analysis, and Technology, is available at http://www.justice.gov/eoir/statspub/fy14syb.pdf.

Second, after the hiring freeze was lifted in fiscal year (FY) 2014, the Department processed and identified for hire 25 immigration judge candidates. Also in FY 2014, the Department advertised for and is now in the process of selecting a substantial number of additional immigration judges. The Department expects that, as these new immigration judges enter on duty, the number of decisions rendered nationwide by immigration judges will increase and, in turn, the number of appeals filed with the Board will also increase.

The current caseload at the Board is burdensome and may become overwhelming in the future for a Board of 15 members. At the same time, if the Board becomes too large, it may have difficulty fulfilling its responsibility of providing coherent direction with respect to the immigration laws. In particular, because the Board currently issues precedent decisions only with the approval of a majority of permanent Board members, a substantial increase in Board members may make the process of issuing such decisions more difficult.

Keeping in mind the goal of maintaining cohesion and the ability to reach consensus, but recognizing the challenges the Board faces in light of its current and anticipated increased caseload, the Department has determined that two members should be added to the Board at this time. These changes are necessary to maintain an efficient system of appellate adjudication in light of the increasing caseload.

IV. Public Comments

This rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because, as an internal delegation of authority, it relates to a matter of agency organization, procedure, or practice. See 5 U.S.C. 553(b). The Department is nonetheless promulgating this rule as an interim rule, providing the public with opportunity for post-promulgation comment before the Department issues a final rule on these matters.

V. Regulatory Requirements A. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), “[w]henever an agency is required by section 553 of [the RFA], or any other law, to publish general notice of proposed rulemaking for any proposed rule . . . the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.” 5 U.S.C. 603(a). Such analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). Because this is a rule of internal agency organization and therefore is exempt from notice and comment rulemaking, no RFA analysis under 5 U.S.C. 603 is required for this rule.

B. Unfunded Mandates Reform Act of 1995

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

C. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

D. Executive Orders 12866 and 13563—Regulatory Planning and Review

The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” and the Office of Management and Budget has concurred in this determination. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563, “Improving Regulation and Regulatory Review.” Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits, including consideration of potential economic, environmental, public health, and safety effects, distributive impacts, and equity. The benefits of this interim rule include providing the Department with an appropriate means of responding to the increased number of appeals to the Board. The public will benefit from the expansion of the number of Board members because such expansion will help EOIR better accomplish its mission of adjudicating cases in a timely manner. The Department does not foresee any burdens to the public or the Department.

E. Executive Order 13132—Federalism

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

F. Executive Order 12988—Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this interim rule because there are no new or revised recordkeeping or reporting requirements.

H. Congressional Review Act

This action pertains to agency management and personnel and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (CRA) (Subtitle E of the Small Business Regulatory Enforcement Fairness Act (SBREFA)), 5 U.S.C. 804(3). Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required.

List of Subjects in 8 CFR Part 1003

Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies).

Accordingly, for the reasons stated in the preamble, the Attorney General is amending part 1003 of chapter V of title 8 of the Code of Federal Regulations as follows:

PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority citation for Part 1003 continues to read as follows: Authority:

5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub.L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub.L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub.L. 106-554, 114 Stat. 2763A-326 to -328.

2. Amend § 1003.1 by revising the third sentence of paragraph (a)(1) to read as follows:
§ 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals.

(a)(1) * * * The Board shall consist of 17 members.* * *

Dated: May 28, 2015. Loretta E. Lynch, Attorney General.
[FR Doc. 2015-13459 Filed 6-2-15; 8:45 am] BILLING CODE 4410-30-P
DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Parts 4, 5, 7, 14, 24, 32, 34, 100, 116, 143, 144, 145, 146, 150, 152, 159, 160, 161, 162, 163, 174, 192, 193 [Docket ID OCC-2014-0007] RIN 1557-AD80 Integration of National Bank and Federal Savings Association Regulations: Licensing Rules Correction

In rule document 2015-11229 beginning on page 28346 in the issue of Monday, May 18, 2015, make the following correction:

Appendix 1 to Part 24 [Corrected]

On pages 28475 through 28477, in Appendix 1 to Part 24, the form should appear as follows:

BILLING CODE 1505-01-D ER03JN15.000 ER03JN15.001
[FR Doc. C1-2015-11229 Filed 6-2-15; 8:45 am] BILLING CODE 1505-01-C
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 73 [Docket No. FDA-2013-C-1008] Listing of Color Additives Exempt From Certification; Synthetic Iron Oxide; Confirmation of Effective Date AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule; confirmation of effective date.

SUMMARY:

The Food and Drug Administration (FDA or we) is confirming the effective date of April 21, 2015, for the final rule that appeared in the Federal Register of March 20, 2015, and that amended the color additive regulations to expand the permitted uses of synthetic iron oxide as a color additive to include use in soft and hard candy, mints, and chewing gum.

DATES:

Effective date of final rule published in the Federal Register of March 20, 2015 (80 FR 14839) confirmed: April 21, 2015.

FOR FURTHER INFORMATION CONTACT:

Laura A. Dye, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 240-402-1275.

SUPPLEMENTARY INFORMATION:

In the Federal Register of March 20, 2015 (80 FR 14839), we amended the color additive regulations in § 73.200 Synthetic iron oxide (21 CFR 73.200) to expand the permitted uses of synthetic iron oxide as a color additive to include use in soft and hard candy, mints, and chewing gum.

We gave interested persons until April 20, 2015, to file objections or requests for a hearing. We received no objections or requests for a hearing on the final rule. Therefore, we find that the effective date of the final rule that published in the Federal Register of March 20, 2015, should be confirmed.

List of Subjects in 21 CFR Part 73

Color additives, Cosmetics, Drugs, Foods, Medical devices.

Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e) and under authority delegated to the Commissioner of Food and Drugs, and redelegated to the Director, Office of Food Additive Safety, we are giving notice that no objections or requests for a hearing were filed in response to the March 20, 2015, final rule. Accordingly, the amendments issued thereby became effective April 21, 2015.

Dated: May 28, 2015. Susan Bernard, Director, Office of Regulations, Policy and Social Sciences, Center for Food Safety and Applied Nutrition.
[FR Doc. 2015-13457 Filed 6-2-15; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0460] Drawbridge Operation Regulation; Columbia River, Vancouver, WA AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from drawbridge regulation.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Interstate 5 (I-5) Bridges across the Columbia River, mile 106.5, between Portland, Oregon, and Vancouver, Washington. The deviation is necessary to facilitate the movement of heavier than normal roadway traffic associated with the Independence Day fireworks show near the I-5 Bridges. This deviation allows the bridges to remain in the closed-to-navigation position during the event.

DATES:

This deviation is effective from 9 p.m. to 11:59 p.m. on July 4, 2015.

ADDRESSES:

The docket for this deviation, [USCG-2015-0460] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected] If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

The Oregon Department of Transportation has requested that the I-5 Bridges across the Columbia River remain closed to vessel traffic to facilitate heavier than normal roadway traffic volume associated with a fireworks show on July 4, 2015 near the bridges. The I-5 Bridges cross the Columbia River at mile 106.5, and provide three designated navigation channels with vertical clearances ranging from 39 to 72 feet above Columbia River Datum 0.0 while the lift spans are in the closed-to-navigation position.

The normal operating schedule for the I-5 Bridges are in accordance with 33 CFR 117.869, which states that the draws shall open on signal except that the draws need not open 6:30 a.m. to 9 a.m. and from 2:30 p.m. to 6 p.m. Monday through Friday, excluding federal holidays.

This deviation period is from 9 p.m. to 11:59 p.m. on July 4, 2015. The deviation allows the lift spans of the I-5 Bridges across the Columbia River, mile 106.5, to remain in the closed-to-navigation position and need not open for maritime traffic from 9 p.m. to 11:59 p.m. on July 4, 2015.

The bridge shall operate in accordance with 33 CFR 117.869 at all other times. Waterway usage on this part of the Columbia River includes vessels ranging from commercial tug and tow vessels to recreational pleasure craft.

Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridges must return to their regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Dated: May 28, 2015. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
[FR Doc. 2015-13411 Filed 6-2-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0459] Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from drawbridge regulation.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs three Seattle Department of Transportation bridges: The Ballard Bridge, mile 1.1, the Fremont Bridge, mile 2.6, and the University Bridge, mile 4.3, all crossing the Lake Washington Ship Canal at Seattle, WA. The deviation is necessary to accommodate heavier than normal roadway traffic associated with a fireworks display over Lake Union. This deviation allows the bridges to remain in the closed-to-navigation position prior to and immediately after the fireworks display.

DATES:

This deviation is effective from 9 p.m. on July 4, 2015 to 1 a.m. on July 05, 2015.

ADDRESSES:

The docket for this deviation, [USCG-2015-0459] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email d1[email protected] If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Seattle Department of Transportation (SDOT) has requested a temporary deviation from the operating schedule for the Ballard Bridge, mile 1.1, the Fremont Bridge, mile 2.6, and the University Bridge, mile 4.3, all crossing the Lake Washington Ship Canal at Seattle, WA. The requested deviation is to accommodate heavier than normal roadway traffic associated with the 4th of July fireworks display over Lake Union, Seattle, WA. The deviation period is from 9 p.m. on July 4, 2015 to 1 a.m. on July 05, 2015. To facilitate this event, the draws of the bridges will be maintained in the closed-to-navigation positions as follows: the Fremont Bridge, mile 2.6, need not open for vessel traffic from 9 p.m. on July 4, 2015 to 12:30 a.m. on July 5, 2015; the Ballard Bridge, mile 1.1, and the University Bridge, mile 4.3, need not open for vessel traffic from 10 p.m. on July 4, 2015 to 1 a.m. July 5, 2015.

The Ballard Bridge, mile 1.1, provides a vertical clearance of 29 feet in the closed position, the Fremont Bridge, mile 2.6, provides a vertical clearance of 14 feet in the closed position, and the University Bridge, mile 4.3, provides a vertical clearance of 30 feet in the closed position; all clearances are referenced to the mean water elevation of Lake Washington. The normal operating schedule for all three bridges is in accordance with 33 CFR 117.1051 stating; all three bridges need not open from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m. Monday through Friday for vessels less than 1000 tons. The normal operating schedule for these bridges also requires one hour advance notification for bridge openings between 11 p.m. and 7 a.m. daily. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft.

Vessels able to pass through the bridge in the closed positions may do so at anytime. The bridge will be able to open for emergency vessel responding to emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Dated: May 28, 2015 Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
[FR Doc. 2015-13417 Filed 6-2-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2015-0484] RIN 1625-AA87 Security Zone; Portland Rose Festival on Willamette River, Portland, OR AGENCY:

Coast Guard, DHS.

ACTION:

Interim final rule.

SUMMARY:

The Coast Guard is permanently amending the Portland Rose Festival on Willamette River security zone. This regulation is enforced annually during the Portland, Oregon Rose Festival on the waters of the Willamette River between the Hawthorne and Steel Bridges. This final rule will eliminate inconsistencies between the actual event dates and the enforcement period published in the Code of Federal Regulations. This will serve to better inform the public of the security zone.

DATES:

This rule is effective on June 3, 2015. This rule will be enforced on JUNE 3, 2015 through JUNE 8, 2015.

Comments and related material must be received by the Coast Guard on or before July 6, 2015.

Requests for public meetings must be received by the Coast Guard June 10, 2015.

ADDRESSES:

Documents mentioned in this preamble are part of Docket Number USCG-2015-0484. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Open Docket Folder” on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

You may submit comments, identified by docket number, using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov

(2) Fax: (202) 493-2251

(3) Mail or Delivery: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries accepted between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number is 202-366-9329.

See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Mr. Ken Lawrenson, Waterways Management Division, MSU Portland, Oregon, Coast Guard; telephone 503-240-9319, email [email protected] If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking TFR Temporary Final Rule A. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

1. Submitting Comments

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. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

2. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

3. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

4. Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

B. Regulatory History and Information

The security zone that is the subject of this rulemaking was first established as of June 4, 2003 following the Coast Guard's publication of a final rule in the Federal Register on May 29, 2003 (68 FR 31978). On June 8, 2005, the Coast Guard published a final rule in the Federal Register revising the enforcement period of the security zone (70 FR 33352). In this action, the Coast Guard is revising the enforcement section of the security zone to eliminate inconsistencies between the actual event dates and the published enforcement period that currently appears in 33 CFR 165.1312. This will serve to better inform the public of the security zone.

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a Notice of Proposed Rulemaking (NPRM) with respect to this rule. Waiting for a 30-day notice period to run would be impracticable because the Coast Guard did not receive the necessary information in time for this regulation to undertake both an NPRM and a 30-day delayed effective date. Additionally, waiting for a 30-day notice period to run would be impracticable, as delayed promulgation may result in injury or damage to persons and vessels from the hazards associated with the Festival. Furthermore, the changes made by this final rule address the enforcement period. As no changes will be made to the regulation in any other aspect, it is unnecessary for the Coast Guard to publish an NPRM with a notice and comment period. As currently published, the security zone enforcement period is not inclusive of the dates for the 2015 event and possible future event dates.

C. Basis and Purpose

The basis for this rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish security zones.

This final rule will eliminate inconsistencies with the actual event dates and the enforcement period that currently appears in 33 CFR 165.1312. This will serve to better inform the public of the security zone.

D. Discussion of the Interim Rule

This rule will revise 33 CFR 165.1312 paragraph (d) to indicate that the regulation will be enforced annually in June for a period of 6 days. Additionally, we note that the specific dates of enforcement will be published each year in the Federal Register. In 2015, the zone will be enforced on Wednesday, June 3, through Monday, June 8.

This change will allow the Coast Guard to more accurately notify the public of the security zone by eliminating the scenarios in which the actual event dates would fall outside the published enforcement period.

E. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The Coast Guard bases this finding on the fact that the no changes to the security zone were made beyond clarifying the enforcement period.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities some of which may be small entities: The owners and operators of vessels intending to transit or anchor in the security zone during the times this zone is enforced. This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessels desiring to transit this area of the Willamette River may do so by scheduling their trips in the early morning or evening when the restrictions on general navigation imposed by this section will not be in effect.

3. Assistance for Small Entities

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 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, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

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

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

6. 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.

7. 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

9. Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

10. Protection of Children From Environmental Health Risks

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined 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 rule involves the revision of the enforcement period in 33 CFR 165.1312(d). This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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 amends 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREA. 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. In § 165.1312 revise paragraph (d) to read as follows:
§ 165.1312 Security Zone; Portland Rose Festival on Willamette River.

(d) Enforcement period. This section is enforced annually in June. The event will be 6 days in length and the specific dates of enforcement will be published each year in the Federal Register. In 2015, the zone will be enforced on Wednesday, June 3, through Monday, June 8.

Dated: May 11, 2015. D.J. Travers, Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
[FR Doc. 2015-13397 Filed 6-2-15; 8:45 am] BILLING CODE 9110-04-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2004-0505; FRL-9928-25-OAR] RIN 2060-AS42 Completion of Requirement To Promulgate Emissions Standards AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

In this action the Environmental Protection Agency (EPA) finalizes its proposed determination that the EPA completed its statutory obligation under the Clean Air Act (CAA) to promulgate emissions standards for source categories accounting for not less than 90 percent of the aggregated emissions of each of seven specific hazardous air pollutants (HAP) enumerated in the CAA. On December 16, 2014, the EPA published the proposed determination that stated the basis for the agency's conclusion that it completed this obligation in February of 2011 by identifying the promulgated standards that collectively satisfy this obligation and provided the public an opportunity to comment on the EPA's determination. This action finalizes the EPA's determination.

DATES:

This action is effective on June 3, 2015.

ADDRESSES:

The EPA has established a docket for this rulemaking under Docket ID Number EPA-HQ-OAR-2004-0505. All documents in the docket are listed in the http://www.regulations.gov index. 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, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT:

For questions about this action, contact Mr. Nathan Topham, Office of Air Quality Planning and Standards; Sector Policies and Programs Division, Metals and Inorganic Chemicals Group (D243-02); Environmental Protection Agency; Research Triangle Park, NC 27111; telephone number: (919) 541-0483; fax number: (919) 541-3207; email address: [email protected]

SUPPLEMENTARY INFORMATION:

Organization of this document. The information presented in this preamble is organized as follows:

I. General Information A. Where can I get a copy of this document? B. Judicial Review II. Background Information III. How has the EPA satisfied its obligation under CAA section 112(c)(6)? A. What are the emissions standards that the EPA has promulgated to meet the 90 percent requirement under CAA section 112(c)(6)? B. What are the surrogate pollutants used by the EPA when establishing CAA section 112(d)(2) standards for the source categories identified in the proposed determination? IV. Summary of Significant Comments and Responses A. General/Legal Opposition to the EPA's Surrogacy Determinations V. 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 Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. General Information A. Where can I get a copy of this document?

In addition to being available in the docket, an electronic copy of this final action will also be available on the Internet through the EPA's Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas of air pollution control. Following signature by the EPA Administrator, the EPA will post a copy of this final action at: http://www.epa.gov/ttn/atw/eparules.html. Following publication in the Federal Register, the EPA will post the Federal Register version of the rule at this same Web site.

B. Judicial Review

Under CAA section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by August 3, 2015. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements. Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC West Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460.

II. Background Information

CAA section 112(c)(6) requires the EPA to take action with respect to the sources of seven specific persistent, bioaccumulative HAP. The section states, “With respect to alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin, the Administrator shall, not later than 5 years after November 15, 1990, list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4) of this section.”

CAA section 112(c)(6) requires the EPA to ensure that source categories responsible for at least 90 percent of the aggregate emissions of each of the seven specified pollutants are subject to standards under CAA sections 112(d)(2) or 112(d)(4). It requires the EPA to list, by November 15, 1995, source categories assuring that sources responsible for 90 percent of the aggregate emissions are subject to emission standards pursuant to CAA section 112(d)(2) or (d)(4), and to promulgate such standards by November 15, 2000. Under CAA section 112(d)(2), the EPA imposes emission standards that require “the maximum degree of reduction in emissions of the [HAP]” that the EPA concludes are achievable based on a consideration of factors identified in the statute. CAA section 112(d)(2). These standards are referred to as “maximum achievable control technology” or “MACT” standards. CAA section 112(d)(4) authorizes the EPA to set a health-based standard for a limited set of HAP for which a health threshold has been established, and that standard must provide for “an ample margin of safety.” CAA section 112(d)(4).

On December 16, 2014, the EPA published in the Federal Register the proposed determination concluding that the requirements of CAA section 112(c)(6) were fulfilled in February of 2011. 79 FR 74656 (December 16, 2014).1 The proposed determination provided a detailed summary of the litigation history regarding this action and provided an opportunity for comment on the EPA's proposed determination that it has fulfilled the requirements of CAA section 112(c)(6). The proposed rulemaking explained the basis for the agency's proposed determination by identifying the promulgated CAA section 112(d)(2) or 112(d)(4) standards that collectively satisfy the obligation and describing how the EPA determined which regulations would collectively satisfy the 90 percent requirement under CAA section 112(c)(6) using the updated 1990 baseline inventory of source categories that emit CAA section 112(c)(6) HAP, which was presented in Table 1 of the proposed determination. 79 FR at 74661-74671.

1 The EPA's initial determination was signed on February 21, 2011, and published in the Federal Register on March 21, 2011.

III. How has the EPA satisfied its obligation under CAA section 112(c)(6)? A. What are the emissions standards that the EPA has promulgated to meet the 90 percent requirement under CAA section 112(c)(6)?

This action finalizes the EPA's proposed determination that the Agency has promulgated emissions standards for source categories pursuant to CAA sections 112(d)(2) and (4) sufficient to satisfy the CAA section 112(c)(6) requirement that sources accounting for not less than 90 percent of the aggregate emissions of seven specific HAP are subject to standards under CAA sections 112(d)(2) or 112(d)(4).2 Table 2 of the December 2014 proposal provided a list of the emissions standards, including the name of each of the source categories, the name of the emissions standards that apply, and the rule citation for each (i.e., CFR part and subpart). 79 FR 74674-74677, December 16, 2014. Table 3 of the 2014 proposal provided a list of the specific regulations (including CFR citations, part and subpart) that address 90 percent or more of each of the CAA section 112(c)(6) HAP. 79 FR at 74677. After considering and evaluating all public comments received in response to the proposed rule, we finalize our determination that the EPA has satisfied the CAA section 112(c)(6) requirement to establish CAA section 112(d)(2) or (4) standards for source categories that account for not less than 90 percent of the seven HAP listed in CAA section 112(c)(6).

2 In addition to standards issued pursuant to section 112(d)(2) or (4), EPA also includes standards issued pursuant to section 129 as satisfying the 112(c)(6) requirement because section 129(a)(2) requires MACT standards that are virtually identical to the those standards required pursuant to section 112(d)(2). In addition, section 129(h)(3)(A) states that “the performance standards under subsection (a) of this section and section [111] of this title applicable to a category of solid waste incineration units shall be deemed standards under section [112](d)(2)of this title.”

B. What are the surrogate pollutants used by the EPA when establishing CAA section 112(d)(2) standards for the source categories identified in the proposed determination?

As noted in the proposed rule, the emissions standards that collectively satisfy the 90 percent requirement under CAA section 112(c)(6) were set by the EPA under two approaches: (1) Through standards that directly regulated CAA section 112(c)(6) HAP; and (2) through standards that set emission limits for another HAP or compound,3 which serves as a surrogate for the CAA section 112(c)(6) HAP and other non-112(c)(6) HAP emitted from the source category.

3 Some standards used non-HAP compounds (or groups of compounds) as surrogates for HAP.

The EPA noted in the proposed determination that, with respect to some of the CAA section 112(d)(2) standards that utilized the surrogacy approach, specifically those promulgated prior to the EPA's development of the baseline emissions inventory for CAA section 112(c)(6) and issuance of the 1998 listing notice, the EPA did not specifically indicate in those rulemaking records that the standards would be counted towards satisfying the 90 percent requirement in CAA section 112(c)(6). For these standards, the 2014 proposed determination explained how the surrogate standards control the CAA section 112(c)(6) HAP along with other HAP from the source categories and ensure that the sources of CAA section 112(c)(6) HAP emissions are “subject to standards” for the purposes of CAA section 112(c)(6). The information presented in the proposed determination simply described the actions taken in these prior rulemakings and explained how the surrogate standards control the relevant CAA section 112(c)(6) HAP. The proposed determination did not reopen these prior actions. All those standards were subject to their own notice and comment rulemaking processes consistent with CAA sections 112 and 307(d), and, in several cases, to judicial review as provided by the strict statute of limitations imposed by CAA section 307(b)(1).

Table 1 of this preamble provides a list of the source categories listed under CAA section 112(c)(6), the names of the national standards that apply to those source categories, the Federal Register citations and CFR part and subparts for the rules, and the CAA section 112(c)(6) HAP regulated by those standards.

Table 1—List of Source Categories, National Emissions Standards, and the 112(c)(6) HAP Subject to These Standards, To Fulfill the CAA Section 112(c)(6) Obligations Section 112(c)(6) source category name National emissions standard name(s) CFR part and
  • subpart
  • Final rule Federal Register citation 112(c)(6) Pollutant
    Aerospace Industry (Surface Coating) National Emission Standards for Hazardous Air Pollutants for the Aerospace Industries 40 CFR part 63 subpart GG 60 FR 45948, September 1, 1995 Mercury, POM. Alkylated Lead Production National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry 40 CFR part 63 subpart F 59 FR 19402, April 22, 1994 Alkylated Lead. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 40 CFR part 63 subpart G 59 FR 19402, April 22, 1994 Alkylated Lead. National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks 40 CFR part 63 subpart H 59 FR 19402, April 22, 1994 Alkylated Lead. National Emission Standards for Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 40 CFR part 63 subpart I 59 FR 19402, April 22, 1994 Alkylated Lead. Asphalt Roofing Production National Emission Standards for Hazardous Air Pollutants for Asphalt Processing and Asphalt Roofing Manufacturing 40 CFR part 63 subpart LLLLL 68 FR 24562, May 7, 2003 POM. Blast Furnace and Steel Mills National Emission Standards for Hazardous Air Pollutants for Integrated Iron and Steel Manufacturing Facilities 40 CFR part 63 subpart FFFFF 68 FR 27645, May 20, 2003 POM. Chemical Manufacturing: Cyclic Crude and Intermediate Production National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry 40 CFR part 63 subpart F 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 40 CFR part 63 subpart G 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks 40 CFR part 63 subpart H 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 40 CFR part 63 subpart I 59 FR 19402, April 22, 1994 POM. Chlorinated Solvents Production National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry 40 CFR part 63 subpart F 59 FR 19402, April 22, 1994 HCB. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 40 CFR part 63 subpart G 59 FR 19402, April 22, 1994 HCB. National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks 40 CFR part 63 subpart H 59 FR 19402, April 22, 1994 HCB. National Emission Standards for Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 40 CFR part 63 subpart I 59 FR 19402, April 22, 1994 HCB. Coke Ovens: By-Product Recovery Plants National Emission Standard for Benzene Emissions from Coke By-Product Recovery Plants 40 CFR part 61 subpart L 54 FR 38073, September 14, 1989 POM. Coke Ovens: Charging, Topside & Door Leaks National Emission Standards for Hazardous Air Pollutants for Coke Oven Batteries 40 CFR part 63 subpart L 58 FR 57898, October 27, 1993 POM. National Emission Standards for Hazardous Air Pollutants for Coke Ovens: Pushing, Quenching, and Battery Stacks 40 CFR part 63 subpart CCCCC 68 FR 18007, April 14, 2003 POM. Coke Ovens: Pushing, Quenching & Battery Stacks National Emission Standards for Hazardous Air Pollutants for Coke Oven Batteries 40 CFR part 63 subpart L 58 FR 57898, October 27, 1993 POM. National Emission Standards for Hazardous Air Pollutants for Coke Ovens: Pushing, Quenching, and Battery Stacks 40 CFR part 63 subpart CCCCC 68 FR 18007, April 14, 2003 POM. Commercial Printing: Gravure National Emission Standards for Hazardous Air Pollutants: Printing and Publishing Industry 40 CFR part 63 subpart KK 61 FR 27132, May 30, 1996 POM. Electric Arc Furnaces (EAF)—Secondary Steel National Emission Standards for Hazardous Air Pollutants for Area Sources: Electric Arc Furnace Steelmaking Facilities 40 CFR part 63 subpart YYYYY 72 FR 74088, December 28, 2007 Mercury. Fabricated Metal Products National Emission Standards for Hazardous Air Pollutants: Surface Coating of Miscellaneous Metal Parts and Products 40 CFR part 63 subpart MMMM 69 FR 129, January 2, 2004 POM. Gasoline Distribution (Stage 1) National Emission Standards for Hazardous Air Pollutants for Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) 40 CFR part 63 subpart R 59 FR 64303, December 14, 1994 POM. Gold Mines National Emission Standards for Hazardous Air Pollutants: Gold Mine Ore Processing and Production Area Source Category 40 CFR part 63 subpart EEEEEEE 76 FR 9450, February 17, 2011 Mercury. Hazardous Waste Incineration National Emission Standards for Hazardous Air Pollutants from Hazardous Waste Combustors 40 CFR part 63 subpart EEE 64 FR 52827, September 30, 1999; 70 FR 59402, October 12, 2005 POM, Mercury, PCB, Dioxins, Furans. Industrial Organic Chemicals Manufacturing National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry 40 CFR part 63 subpart F 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 40 CFR part 63 subpart G 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks 40 CFR part 63 subpart H 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 40 CFR part 63 subpart I 59 FR 19402, April 22, 1994 POM. Industrial Stationary IC Engines—Diesel National Emission Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines 40 CFR part 63 subpart ZZZZ 69 FR 33473, June 15, 2004 POM. Industrial Stationary IC Engines—Natural Gas National Emission Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines 40 CFR part 63 subpart ZZZZ 69 FR 33473, June 15, 2004 POM. Industrial/Commercial/Institutional Boilers National Emission Standards for Hazardous Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heaters 40 CFR part 63 subpart DDDDD 76 FR 15608, March 21, 2011 POM, Mercury, Dioxins, Furans. National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers 40 CFR part 63 subpart JJJJJJ 76 FR 15554, March 21, 2011 POM, Mercury, Dioxins, Furans. Lightweight Aggregate Kilns National Emission Standards for Hazardous Air Pollutants from Hazardous Waste Combustors 40 CFR part 63 subpart EEE 64 FR 52827, September 30, 1999; 70 FR 59402, October 12, 2005 Mercury, Dioxins, Furans. Medical Waste Incineration Standards of Performance and Emissions Guidelines for Hospitals/Medical/Infectious Waste Incinerators 40 CFR part 60 subpart Ce, Ec; & 40 CFR part 62 subpart HHH 74 FR 51367, October 6, 2009 POM, Mercury, PCB, Dioxins, Furans. Mercury Cell Chlor Alkali Production National Emission Standards for Hazardous Air Pollutants: Mercury Emissions from Mercury Cell Chlor Alkali Plants 40 CFR part 63 subpart IIIII 68 FR 70903, December 19, 2003 Mercury. Municipal Waste Combustion Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal Waste Combustion Units 40 CFR part 60 subpart Cb, Ea, Eb; & 40 CFR part 62 subpart FFF 71 FR 27324, May 10, 2006 POM, Mercury, PCB, Dioxins, Furans. Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Stationary Sources: Small Municipal Waste Combustion Units 40 CFR part 60 subpart AAAA, BBBB & 40 CFR part 62 subpart JJJ 65 FR 76349, December 6, 2000; 65 FR 76337, December 6, 2000 POM, Mercury, PCB, Dioxins, Furans. Naphthalene Production National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry 40 CFR part 63 subpart F 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 40 CFR part 63 subpart G 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks 40 CFR part 63 subpart H 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 40 CFR part 63 subpart I 59 FR 19402, April 22, 1994 POM. Paints and Allied Products (Major) National Emission Standards for Hazardous Air Pollutants: Miscellaneous Organic Chemical Manufacturing 40 CFR part 63 subpart FFFF 68 FR 63851, November 10, 2003 POM. Paper Coated and Laminated, Packaging National Emission Standards for Hazardous Air Pollutants: Paper and Other Web Coating 40 CFR part 63 subpart JJJJ 67 FR 72329, December 4, 2002 POM. Pesticides Manufacture & Agricultural Chemicals National Emission Standards for Hazardous Air Pollutants: Pesticide Active Ingredient Production 40 CFR part 63 subpart MMM 64 FR 33549, June 23, 1999 HCB. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry 40 CFR part 63 subpart F 59 FR 19402, April 22, 1994 HCB. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 40 CFR part 63 subpart G 59 FR 19402, April 22, 1994 HCB. National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks 40 CFR part 63 subpart H 59 FR 19402, April 22, 1994 HCB. Petroleum Refining: All Processes National Emission Standards for Hazardous Air Pollutants from Petroleum Refineries 40 CFR part 63 subpart CC 60 FR 43244, August 18, 1995 POM. National Emission Standards for Hazardous Air Pollutants for Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units 40 CFR part 63 subpart UUU 67 FR 17761, April 11, 2002 POM. Phthalic Anhydride Production National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry 40 CFR part 63 subpart F 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 40 CFR part 63 subpart G 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks 40 CFR part 63 subpart H 59 FR 19402, April 22, 1994 POM. National Emission Standards for Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 40 CFR part 63 subpart I 59 FR 19402, April 22, 1994 POM. Plastics Material and Resins Manufacturing National Emission Standards for Hazardous Air Pollutants for Group IV Polymers and Resins 40 CFR part 63 subpart JJJ 61 FR 48208, September 12, 1996 POM. Portland Cement Manufacture: Hazardous Waste Kilns National Emission Standards for Hazardous Air Pollutants from Hazardous Waste Combustors 40 CFR part 63 subpart EEE 64 FR 52827, September 30, 1999; 70 FR 59402, October 12, 2005 POM, Mercury, Dioxins, Furans. Portland Cement Manufacture: Non-Hazardous Waste Kilns National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry 40 CFR part 63 subpart LLL 75 FR 54970, September 9, 2010 POM, Mercury, Dioxins, Furans. Primary Aluminum Production National Emission Standards for Hazardous Air Pollutants for Primary Aluminum Reduction Plants 40 CFR part 63 subpart LL 62 FR 52384, October 7, 1997 POM, Mercury, Dioxins, Furans. Pulp and Paper—Kraft Recovery Furnaces National Emission Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills 40 CFR part 63 subpart MM 63 FR 18504, April 15, 1998; 66 FR 3180, January 12, 2001 POM, Mercury. Pulp and Paper—Lime Kilns National Emission Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills 40 CFR part 63 subpart MM 63 FR 18504, April 15, 1998; 66 FR 3180, January 12, 2001 POM, Mercury. Secondary Aluminum Smelting National Emission Standards for Hazardous Air Pollutants for Secondary Aluminum Production 40 CFR part 63 subpart RRR 65 FR 15689, March 23, 2000 Dioxins, Furans. Secondary Lead Smelting National Emission Standards for Hazardous Air Pollutants for Secondary Lead Smelting 40 CFR part 63 subpart X 60 FR 32587, June 23, 1995; 77 FR 555, January 5, 2012 POM, Dioxins, Furans. Sewage Sludge Incineration Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units 40 CFR part 60 subparts LLLL, MMMM 76 FR 15372, March 21, 2011 Mercury. Ship Building and Repair (Surface Coating) National Emission Standards for Hazardous Air Pollutants for Shipbuilding and Ship Repair (Surface Coating) 40 CFR part 63 subpart II 60 FR 64330, December 15, 1995 POM. Transportation Equipment Manufacturing (SICs Combined) National Emission Standards for Hazardous Air Pollutants: Surface Coating of Plastic Parts and Products 40 CFR part 63 subpart PPPP 69 FR 20967, April 19, 2004; 69 FR 22601, April 26, 2004 POM. Wood Household Furniture Manufacturing National Emission Standards for Hazardous Air Pollutants from Wood Furniture Manufacturing Operations 40 CFR part 63 subpart JJ 60 FR 62930, December 7, 1995 POM.
    IV. Summary of Significant Comments and Responses

    During the public comment period for the proposed determination, we received comments from three organizations: the Council of Industrial Boiler Owners (CIBO), the Coalition for Clean Air Implementation (CCAI), and Sierra Club. The CIBO and CCAI submitted comments supporting our proposed determination that we have fulfilled the CAA section 112(c)(6) obligations and agreed with our use of surrogate pollutants. Sierra Club submitted comments claiming that a number of previously promulgated standards identified in the proposed determination are unlawful for purposes of CAA section 112(d)(2) such that those standards may not count toward satisfying the 90 percent requirement in CAA section 112(c)(6). A summary of significant public comments received during the comment period and the EPA's response to those comments are provided below in this section of this preamble. All the remaining public comments received during the comment period and the EPA's responses to those comments are presented in the Summary of Public Comments and EPA's Responses for the Completion of Requirements to Promulgate Standards Under CAA Section 112(c)(6) 2015 Final Rule document, which is available in the docket for this action.

    A. General/Legal Opposition to the EPA's Surrogacy Determinations

    Comment: One commenter states that “for source categories listed under section [112](c)(6), the EPA must set a MACT standard (i.e., a standard under section [112](d)(2)-(3)) for each section 112(c)(6) pollutant for which the source was listed.” 4 See Desert Citizens Against Pollution v. EPA, 699 F.3d 524, 527-528 (D.C. Cir. 2012).5 Thus, the commenter states, “to satisfy section 112(d)(2), the EPA must determine the maximum achievable degree of reduction for each hazardous air pollutant that a source category emits.” The commenter states that the CAA also specifies a “floor” for the reduction that the EPA must require for each pollutant. Therefore, the commenter believes that the EPA's claim that it can meet its obligations under section 112(c)(6) by setting a single limit on the aggregate emissions of all HAP from an industrial source category is contrary to the language in CAA and violates the text of sections 112(c)(6) and 112(d), reflecting an unreasonable statutory interpretation.

    4 The commenter notes that section 112(c)(6) also allows the EPA to set standards for these pollutants under section 112(d)(4) if a health threshold has been established for that pollutant. CAA sections 112(c)(6) and (d)(4). This provision is not at issue because the EPA has not established health thresholds for any of the section 112(c)(6) pollutants at issue here.

    5 Accepting as “reasonable” the EPA's interpretation of section 112 as requiring it to set section 112(d)(2) standards for the section 112(c)(6) pollutants when it regulates a category of area sources listed pursuant to section 112(c)(6).

    The commenter states that although the EPA may set surrogate standards for HAP where it is reasonable to do so, see National Lime, 233 F.3d at 637, setting surrogate standards instead of direct standards for HAP does not, according to the commenter, excuse the EPA from its clear statutory obligation to assure that each HAP emitted by a source category is reduced to the extent that sections 112(d)(2)-(3) requires. The commenter maintains that the United States Court of Appeals for the District of Columbia Circuit has made clear, a surrogate is reasonable only if it allows the EPA to identify “the best achieving sources, and what they can achieve” with respect to the target HAP. Sierra Club v. EPA, 353 F.3d 976, 985 (D.C. Cir. 2004).

    As an example of a reasonable surrogate, the commenter asserts that particulate matter (PM) is a reasonable surrogate for metallic HAP only where the EPA demonstrates that (1) the metallic HAP are “invariably present” in the surrogate pollutant such that there is a strong correlation between the two; (2) the control technology used for PM control “indiscriminately captures” the metallic HAP along with the PM; and (3) the means by which sources achieve reductions in PM are the only means by which they achieve reductions” in metallic HAP emissions. National Lime, 233 F.3d at 639; Sierra Club, 353 F.3d at 984. The commenter maintains that the United States Court of Appeals for the District of Columbia Circuit has held repeatedly that what sources “achieve” with respect to a given HAP is not limited to what they achieve intentionally, but also includes lower emission levels achieved through the use of cleaner fuels or raw materials regardless of whether such use reflects any deliberate intent to reduce emissions. Sierra Club v. EPA, 479 F.3d 875, 883 (D.C. Cir.2007) (citing National Lime, 233 F.3d at 640).

    The commenter states that the EPA's use of “total HAP,” “total organic HAP,” and other such aggregate measures as “surrogates” for pollutants that fit into those categories is a definition maneuver and not a technical determination. The commenter states that this approach to surrogacy is unlawful because it conflicts with EPA's statutory obligation under sections 112(c)(6) and 112(d), and also the commenter asserts with the EPA's own interpretation of those provisions, see Desert Citizens, 699 F.3d at 527-28, which is that the EPA must set MACT standards for each of the section 112(c)(6) pollutants for which each source category was listed. The commenter states there is nothing left of this obligation if the EPA can simply define a category of pollutants (such as total HAP) broad enough to include all the pollutants it must regulate and then set an aggregate limit for the category.

    Additionally, the commenter states that saying that POM is a constituent of total HAP, for example, is just a different way of saying it is a HAP—something that Congress already clearly indicated by listing POM as a HAP in section 112(b). The commenter believes that such statements do nothing to demonstrate that emissions of total HAP identify the best performing sources with respect to POM and what sources can achieve with respect to POM. The commenter believes that if the EPA had authority to create surrogates by simply defining a group of pollutants to include all the pollutants it must regulate, it would abrogate the limits that decisions of the United States Court of Appeals for the District of Columbia Circuit have formulated to ensure that the EPA's use of surrogates is reasonable. The commenter states that there would be nothing left, for example, of the requirement that the HAP to be regulated be “invariably present” in the surrogate pollutant, National Lime, 233 F.3d at 639, if the EPA could simply define the surrogate “pollutant” as a group of pollutants that includes the regulated pollutant.

    The commenter argues that section 112(c)(6) is a provision that specifically addresses seven persistent bioaccumulative toxics that Congress recognized were particularly harmful. The commenter believes that for sources the EPA lists as contributing to 90 percent of the total emissions of one or more of these pollutants, the EPA must set a standard for that pollutant ensuring the maximum emissions reduction. The commenter states that Congress would not have singled out these seven pollutants if it intended for the EPA only to set a single limit for the aggregate of emissions of all the different HAP.

    The commenter states that even if it were permissible in general for the EPA to evade its standard-setting obligations by defining the surrogate “pollutant” as a group of pollutants, the EPA's surrogacy claims in this rule are unlawful and arbitrary because they lack supporting data or analysis. The commenter argues that the EPA's surrogacy explanations in the proposed determination are standards under section 307(d) because they are first-time claims that the relevant pollutants are subject to standards. The EPA must according to the commenter comply with the requirements of section 307(d) governing CAA rulemakings for all of those previously issued standards. The commenter maintains the EPA has not complied with these requirements because according to the commenter the EPA has not provided documentation, data, or analysis in support of its proposed determination. For this reason, the commenter concludes that the EPA has violated section 307(d) by failing to explain the “methodology used in obtaining the data and in analyzing the data” in the proposed determination, by failing to provide opportunity for informed public participation and input, and by unlawfully basing the Agency's conclusions on information or data which has not been made available to the public through the docket. The commenter also believes that the EPA has acted arbitrarily and capriciously by failing to provide substantial record evidence in support of its proposed section 112(c)(6) determination, by failing to consider relevant factors, and by failing to provide a rational connection between the facts found and the conclusion made. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43. The commenter gives examples of specific surrogacy claims for specific source categories and processes that it believes are unlawful and arbitrary. We address the specific claims in the Summary of Public Comments and EPA's Responses for the Completion of Requirements to Promulgate Standards Under CAA Section 112(c)(6) 2015 Final Rule document, which is available in the docket for this action.

    Response: The commenter misinterprets the CAA, mischaracterizes the EPA's proposed determination, and provides comments challenging the substance of a number of previously issued EPA rules. As explained below, the comments challenging the legitimacy of the standards on which EPA relies to demonstrate it has satisfied its obligations under CAA section 112(c)(6) are far outside the scope of the proposed CAA section 112(c)(6) determination at issue. The EPA, therefore, has no obligation to respond to those comments.

    The proposed determination memorializes and provides notice that the EPA has fulfilled, via numerous other previous regulatory actions, its duties under section 112(c)(6) of the CAA. The proposal lists CAA section 112(d)(2) or 112(d)(4) standards previously promulgated by the EPA and proposed the conclusion that the listed standards cover sources that, in the aggregate, emit 90 percent or more of the pollutants specifically identified in CAA section 112(c)(6). The commenter does not challenge that conclusion. In fact, no commenter suggests that the source categories listed did not emit, in the aggregate prior to regulation, 90 percent or more of the specified pollutants or that the source categories are not subject to the CAA section 112(d)(2) standards identified. Instead, the commenter seeks to use the proposed determination to reopen standards that were finalized by the EPA in some cases more than 20 years ago. The commenter argues that the EPA must now demonstrate, for each previously promulgated rule, that each standard reduces HAP “to the extent that [112] (d)(2)-(3) requires,” that in each rulemaking the EPA properly identified “the best performing sources,” and that the EPA must provide documentation, data and analysis to support the validity of the standards in the previously promulgated rules. CAA section 112(c)(6) imposes no such obligation on the EPA. As explained below, the commenter aims to collaterally attack prior EPA actions. All comments that raise such collateral attacks are outside the scope of the proposed CAA section 112(c)(6) determination. All of the rules relied upon by the EPA in this determination were promulgated through notice and comment rulemaking consistent with CAA section 307(d), and were final agency actions subject to judicial review. CAA section 112(c)(6) does not provide commenters another opportunity to belatedly challenge these prior EPA actions, nor does it mandate that the EPA re-promulgate or otherwise re-open for purposes of section 112(c)(6) standards that were previously promulgated under section 112(d)(2).

    As an initial matter, it is important to understand the specific duties that CAA section 112(c)(6) imposes on the EPA, especially since the commenter consistently paraphrases the statutory language to assert there are duties beyond which the CAA requires by its terms. CAA section 112(c)(6) requires the EPA, with respect to seven specified HAP—alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin—to “list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4) of this section.” The provision requires the listing to be done by November 15, 1995, and requires that sources accounting for not less than 90 percent of aggregate emissions of each of the enumerated pollutants be subject to CAA section 112(d)(2) or (4) standards by November 15, 2000. CAA section 112(c)(6) does not require the EPA to submit a report stating that the agency has subjected those sources to such standards, or establish a deadline for any such report. Sierra Club v. EPA, 699 F.3d 530, 536 (D.C. Cir. 2012) (Henderson Concurring)(“EPA is under no obligation, statutory or otherwise, to inform anyone that it has satisfied the requirements of section 112(c)(6).”). Moreover, while CAA section 112(c)(6) gives the EPA authority to list source categories, the rules which establish standards for those source categories are promulgated pursuant to separate CAA provisions.

    The CAA section 112(d)(2) standards (also referred to as maximum achievable control technology or MACT standards), which commenter seeks to collaterally attack, regulate HAP emitted from major sources and in some instances area sources and were promulgated in accordance with the following CAA provisions. CAA section 112(c)(1) requires the EPA to list all major sources and authorizes the EPA to list area sources, and section 112(d)(1) requires the EPA to regulate all HAP from major sources pursuant to CAA section 112(d)(2) or (d)(4). CAA section 112(e)(1)(A)-(E) imposes sequential milestones for the EPA to complete issuance of MACT standards, and requires that the final set of such standards be promulgated by November 15, 2000, the same date by which under CAA section 112(c)(6) sources accounting for 90 percent of the enumerated HAP were required to have become subject to CAA section 112(d)(2) or (4) standards. Therefore, for major sources, CAA section 112(c)(6) is redundant with respect to the HAP to be regulated, the type of standards required, and the ultimate timing for completion of issuing such standards. The HAP specifically listed in CAA section 112(c)(6) are also on the CAA section 112(b)(1) list of HAP and, thus, the CAA section 112(d)(1) obligation to set CAA section 112(d)(2) or (d)(4) standards for all HAP from major sources applies equally to the CAA section 112(c)(6) HAP. CAA section 112(c)(6) adds nothing substantive to this requirement. Even the CAA section 112(e)(1) deadlines for promulgating such standards is ultimately identical to the deadline in CAA section 112(c)(6).6 As such, it is irrelevant whether the EPA mentioned CAA section 112(c)(6) during the rulemaking for any standard for a major source category, including standards where the Agency regulated the area sources in the category at the same time and in the same manner as the major sources (i.e. pursuant to CAA section 112(d)(2)).7

    6 The primary impacts of CAA section 112(c)(6) are to require the EPA to list area sources if major sources do not account for at least 90 percent of each of the seven HAP, and to limit the EPA's discretion to set so-called generally available control technology or GACT standards for area sources. Most relevant here is the limitation on the EPA's authority to establish GACT standards. CAA section 112(d)(5) provides that, for listed area sources, the EPA may set emission standards that “provide for the use of generally available control technologies or management practices by such sources to reduce emissions of hazardous air pollutants.” CAA section 112(c)(6) removes the EPA's discretion to establish GACT standards for the seven section 112(c)(6) HAP emitted if an area source category must be regulated pursuant to CAA section 112(d)(2) or (4) to ensure that sources accounting for not less than 90 percent of the seven HAP are subject to CAA section 112 (d)(2) or (d)(4) standards. As shown in this notice, none of the standards applicable to area sources that the EPA listed and relied on to demonstrate that it has met its obligations under CAA section 112(c)(6) were established pursuant to CAA section 112(d)(5).

    7 Several of the rulemakings that the commenter collaterally attacks regulated major and area sources together and the Agency established the same section CAA section 112(d)(2) standard for both the major and the area sources in the categories. The commenter makes no distinction between major and area sources in its comments.

    For all the rules that the commenter seeks to collaterally attack, the public was on notice during each specific rulemaking that the EPA was setting MACT standards for the HAP, including the CAA section 112(c)(6) HAP, emitted by the source category. Parties, including the commenter, could have challenged the adequacy of those standards at the time they were issued if they believed the standards did not sufficiently reduce the HAP emitted by the source category, in whatever manner those standards took with respect to regulating each HAP individually or collectively through a surrogate. See National Lime Association v. EPA, 33 F.3d 625, 633-34 (D.C. Cir. 2000) (finding that CAA section 112(d)(1) requires the EPA to establish standards for all HAP emitted from major sources). Any challenges to the legitimacy of the standards, including challenges suggesting that certain HAP were not adequately regulated, should have been raised during the rulemaking for the standards. If any issue remained when the standards were finalized, the proper recourse would have been to petition for judicial review pursuant to CAA section 307(b). That provision provides that “[a] petition for review of action of the [EPA] Administrator in promulgating . . . any emission standard or requirement under section 112 of this title . . . shall be filed within sixty days from the date notice of such promulgation. . . . appears in the Federal Register. . . .” CAA section 307(b)(1). Once the 60-day period has lapsed, a party may not raise arguments that “were available to them at the time the rule was adopted.” Nat'l Mining Ass'n v. DOI, 70 F.3d 1345, 1350 (D.C. Cir. 1995).

    For the reasons stated above, because the commenter challenges the sufficiency of the underlying standards as they apply to certain CAA section 112(c)(6) HAP, the commenter should have raised these issues in timely, direct challenges to those rules. CAA section 112(c)(6) does not allow for challenges to the legitimacy of CAA section 112(d) standards adopted in prior rulemakings outside the 60-day window for challenging those standards established in CAA section 307(b)(1). Moreover, in the proposed determination, EPA did not re-opened those previously promulgated standards, either to review their adequacy for controlling any emitted HAP (including section 112(c)(6) HAP) under section 112(d)(2), or for any other purpose. Therefore, this final determination itself cannot provide a new opportunity to challenge those previously promulgated rules under either section 112(d)(2) or section 112(c)(6).

    In addition to raising belated comments, the commenter argues that CAA section 112(c)(6) requires the EPA to set a “specific limit” for each of the CAA section 112(c)(6) HAP. It is not clear what the commenter means by a “specific limit.” The commenter may be arguing that the EPA cannot rely on CAA section 112(d)(2) or (d)(4) standards that use surrogates to demonstrate that it has satisfied its obligation under CAA section 112(c)(6). However, it appears that the commenter is arguing that CAA section 112(c)(6) somehow limits the EPA's discretion to use particular types of surrogates when setting MACT standards. The commenter specifically objects to the EPA's standard for total HAP or total hazardous organic pollutants. There is no statutory support for either argument. Indeed, as other sections of the CAA illustrate, Congress knew how to require pollutant-specific standards. For example, CAA section 129(a)(4) explicitly requires the EPA to set numeric standards “for the [enumerated] substances or mixtures” listed in that subsection. That provision expressly requires the EPA to set numerical emissions limitations “for” a list of nine substances emitted by solid waste incineration units, and expressly authorizes the regulation of other pollutants through, among other things, surrogate standards. Unlike CAA section 129(a)(4), the terms of CAA section 112(c)(6) do not direct the EPA to set such standards “for” the CAA section 112(c)(6) HAP. Congress conspicuously did not take this approach in CAA section 112(c)(6), and, thus, left intact the EPA's discretion to establish surrogate standards.

    CAA section 112(c)(6) requires the Agency to assure that “sources accounting for” at least 90 percent of the emissions of the listed HAP are “subject to standards” under CAA sections 112(d)(2) or (d)(4), without specifying the form of those standards, or how those standards must operate or be applied to those sources. The provision does not expressly state that the EPA can meet CAA section 112(c)(6) only by setting specific standards “for” the listed HAP, unlike CAA section 129(a)(4). As the commenter notes, the United States Court of Appeals for the District of Columbia Circuit upheld the EPA's approach of satisfying its general obligation under CAA section 112 to set standards through surrogates, as long as the choice of the surrogate is itself reasonable. National Lime Ass'n v. EPA, 233 F.3d 625, 634, 637 (D.C. Cir. 2000); see also, e.g., Sierra Club v. EPA, 353 F.3d 976, 982-85 (D.C. Cir. 2004). In fact, in the National Lime decision, instead of mandating that the EPA set a specific standard for each metallic HAP, the Court held that the EPA's standards for PM as a surrogate for regulating the aggregate metallic HAP was reasonable. 233 F.3d at 639.

    Moreover, CAA section 112(c)(6) contains a numeric benchmark only as to source categories responsible for the percentage of aggregate baseline emissions that must be controlled, not the amount of emissions of each enumerated HAP that must be reduced. As this Court explained in National Lime, where “EPA is under no obligation to achieve a particular numerical reduction in HAP . . . emissions,” but rather only to apply MACT based on the HAP reductions “achieved” by certain facilities, “then the EPA may require . . . control [of a surrogate] without quantifying the reduction in [the target] HAP . . . thus achieved.” 233 F.3d at 639. The same rationale applies here, where the EPA's only obligation under CAA section 112(c)(6) is to apply the same MACT standard considered in National Lime to particular sources accounting for 90 percent of emissions of the CAA section 112(c)(6) HAP. The EPA has set standards pursuant to CAA sections 112(d)(2) or (d)(4) regulating emissions of substances identified as surrogates for the CAA section 112(c)(6) HAP, and those standards reduce the CAA section 112(c)(6) HAP; thus, the EPA has fully met its obligation to set standards assuring that source categories accounting for not less than 90 percent of the aggregate emissions of the CAA section 112(c)(6) pollutants at issue are subject to section 112(d)(2) or (4) standards.

    The commenter also contends that the present determination constitutes a separate CAA 307(d) rulemaking with regard to many of the previously and elsewhere promulgated surrogate standards that the EPA credits towards satisfying the requirement in CAA section 112(c)(6) that source categories accounting for 90 percent of the aggregate enumerated HAP be subjected to CAA section 112(d)(2) or (4) standards. The commenter argues that the EPA must demonstrate anew the validity of the prior separate rulemaking actions and provide data and documentation to support specific aspects of those rules to satisfy the general rulemaking requirements of CAA section 307(d) and the requirements of CAA section 112. There is no statutory basis for this argument, which is an attempt to use this non-statutorily required determination that the EPA has satisfied its CAA section 112(c)(6) obligation to reopen numerous rules, many of which were finalized over a decade ago, as a means to force a non-required re-opening of such standards. Moreover, the commenter's assertion that the proposed CAA section 112(c)(6) determination was the first time the EPA provided notice of its claim that the surrogate standards were being credited for controlling the CAA section 112(c)(6) HAP is inaccurate, assuming it is even relevant (nothing in section 112(c)(6), after all, requires EPA to “provide notice,” either sequentially or ultimately, that the Agency has finally discharged its duty to set section 112(d)(2) standards for the subject source categories accounting for 90 percent of the aggregate section 112(c)(6) HAP. In any event, contrary to the commenter's assertion, the EPA provided such notice of its expectations to discharge its section 112(c)(6) responsibilities when the Agency published the 1998 listing notice identifying the source categories that, based on the 1990 emissions inventory, are responsible for 90 percent of the aggregate emissions of each of the seven pollutants identified in section 112(c)(6) from stationary, anthropogenic sources (i.e., sources within the scope of CAA sections 112 and/or 129).8 63 FR 17838 (April 10, 1998) (“1998 listing notice”). Included on the list were the MACT standards for the source categories at issue in this comment, and most of the specific standards in the comments were promulgated prior to the 1998 listing. The commenter's argument that the proposed determination constitutes the first time notice was given is without merit for any source category listed in the 1998 notice, particularly for those source categories that were regulated after that listing was published in the Federal Register. The argument is also without merit for the standards issued prior to the 1998 notice. While the EPA might not have identified at the time some of these standards were issued that the EPA would count the standards towards meeting the 90 percent requirement in CAA section 112(c)(6), such intent was made public in the 1998 notice. Further, as discussed above, the public was on notice at the time the EPA established these MACT standards that the standards would regulate the HAP, including the CAA section 112(c)(6) HAP, emitted from the source categories. If the commenter believed that the prior actions did not sufficiently control the HAP, including the CAA section 112(c)(6) HAP, from those source categories, the commenter had a responsibility to make those assertions at the time the Agency established the CAA section 112(d) standards. This applied equally to the comments questioning the surrogate standards. The commenter should have raised its concerns with the surrogate standards for “total HAP” or “total organic HAP” at the time the standards were issued if it believed such surrogates are not reasonable or in compliance with the CAA. In any event, the commenter's claim that the proposed determination was the first time notice is refuted by the administrative petitions the commenter filed in 1999, subsequent to the 1998 notice, requesting the EPA to revise some of the standards included in the 1998 notice and addressed in the comments on the proposed CAA section 112(c)(6) determination at issue. In a letter dated January 19, 2001, the EPA denied the petitions, explaining how each of these standards meet the CAA section 112(c)(6) requirement in addressing the HAP enumerated in that section.9

    8 The EPA has updated the 1998 listing several times to remove source categories no longer needed to meet the CAA section 112(c)(6) requirement based on updated information, and to add source categories subsequently determined to be necessary to reach the 90 percent threshold. See, e.g., 76 FR 9450 (February 17, 2011) (adding Gold Mine source category); 73 FR 1916 (January 10, 2008) (finalizing decision not to regulate gasoline distribution area sources under CAA section 112(c)(6)); 72 FR 53814 (September 20, 2007) (adding Electric Arc Furnace Steelmaking Facility area source category); 67 FR 68124 (November 8, 2002) (removing several source categories).

    9 Letter from Browner to Pew, Response to Sierra Club Petition to Revise Regulations for the SOCMI Category, Coke Oven Batteries, Petroleum Refineries, Medical Waste Incinerators, and Municipal Waste Combustors (dated January 25, 1999)(January 19, 2001).

    Section 112(c)(6) does not require that the EPA take an additional, separate final regulatory action to re-open any previously promulgated standards, and the EPA in fact did not reopen these prior actions in the proposed CAA section 112(c)(6) determination. Therefore, the proposed notice does not support a belated, backdoor attack on rules that were in some cases issued more than 20 years ago. The proposed CAA section 112(c)(6) determination is a simple, discretionary accounting of the EPA's previous regulatory efforts, explaining in mathematical terms that the EPA has previously listed sources and promulgated HAP standards sufficient to satisfy the requirement that sources needed for meeting the 90 percent requirement for each of the CAA section 112(c)(6) HAP have, in fact, become subject to standards under CAA sections 112(d)(2) or (4). While the proposed determination in some instances clarifies the surrogacy relationship between the established standards and the relevant CAA section 112(c)(6) HAP, the proposal does not discuss or attest to the substance of the standards previously promulgated for each listed category and subcategory because those standards have been subject to their own notice and comment rulemaking processes, and, in several cases, to judicial review as provided by the strict statute of limitations imposed by CAA section 307(b)(1). The proposed determination only provides the mathematical and technical basis for the EPA's calculation that the sources in the categories and subcategories for which it has separately promulgated emission standards account for 90 percent of the baseline emissions of the CAA section 112(c)(6) HAP.

    The United States Court of Appeals for the District of Columbia Circuit specified in Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 666 (D.C. Cir. 1975), a procedure for pursuing claims that new information merits revision of a previous agency regulation: The prospective petitioner must first bring the new information to the Agency's attention in an administrative petition seeking revision of the prior regulation. CAA Section 553(d) of the Administrative Procedure Act (APA) also explicitly allows parties to petition the Agency to amend a rule. A party that identifies new information that it believes undermines the legitimacy of an existing standard may, at any time, petition the Agency to review and revise that standard. Any party that believed an existing MACT standard was deficient because it failed to adequately address one or more HAP emitted by the source category could have submitted a petition asking the EPA to consider the new information and amend the existing rule to cure any alleged deficiency.

    In addition, as discussed above, the 1998 listing notice provided sufficient notice that the EPA intended to rely on previously issued MACT standards to satisfy the CAA section 112(c)(6) requirement, to the extent that the public did not recognize that it was already on notice regarding the MACT standards' applicability to all HAP emitted by the source categories at the time those standards were issued. If the commenter believed one or more of the standards listed in that 1998 notice did not adequately address the CAA section 112(c)(6) HAP, it should have filed an administrative petition making the argument that the 1998 notice constituted new information concerning the substance of those previously issued standards and asked the EPA to amend the original rules that established the MACT standards. In fact, as stated above, the commenter filed an administrative petition on several of the rules addressed in its comments and did not challenge the EPA's denial of that 2001 petition. Assuming arguendo that the 1998 notice provided an opportunity to challenge the previously issued MACT standards, any such challenge is now time barred because the commenter should have brought the challenge to those rules within 6 years of the 1998 notice, wherein the EPA included those source categories in the CAA section 112(c)(6) inventory. See 28 U.S.C. 2401(a) (requiring civil actions against the United States to be brought within 6 years after the right of action first accrues). For source categories included in but regulated after the 1998 listing, the commenter was on notice and should have commented directly on surrogacy and other issues at the time the standards were promulgated, even if the EPA did not reiterate in the rulemaking record that the EPA was counting those sources' standards toward the 90 percent requirement.

    The commenter's main concern appears to be the EPA's use of “total HAP” or “total organic HAP” as surrogates for certain CAA section 112(c)(6) HAP. The commenter claims such approach is unlawful under the plain language of CAA section 112(c)(6) because according to the commenter that provision requires the EPA to set a MACT standard “for” “each section 112(c)(6) HAP.” In support, the commenter cites a United States Court of Appeals for the District of Columbia Circuit opinion in a case reviewing the NESHAP for the Gold Mine Ore Processing and Production area source category (“the Gold Mine area source rule”). See Desert Citizens Against Pollution v. EPA, 699 F.3d 524 (D.C. Cir. 2012). As explained above, the commenter's interpretation of CAA section 112(c)(6) to require a specific MACT standard for “each section 112(c)(6) HAP” is unsupported by the plain text of the statute. Unlike CAA section 129(a)(4), the terms of CAA section 112(c)(6) do not direct the EPA to set such standards “for” the section 112(c)(6) HAP. Further, nothing in the United States Court of Appeals for the District of Columbia Circuit opinion or the Gold Mine area source rule referenced in the comment addresses the issue of surrogacy. This is not surprising considering that rule directly regulates mercury, the only CAA section 112(c)(6) HAP emitted from the Gold Mine area sources. The relevant issue in that case was whether the EPA must also set CAA section 112(d)(2) standards for all of the non-CAA section 112(c)(6) HAP emitted by the Gold Mine area sources. The Court upheld the EPA's interpretation that CAA section 112(c)(6) does not impose such requirement on non-CAA section 112(c)(6) HAP emitted from area sources just because they emit one or more CAA section 112(c)(6) HAP (in this case, just mercury). The commenter also suggests that its claim is supported by the EPA's own interpretation, but does not cite or reference any specific EPA statement. In any event, interpretations and statements the EPA made in support of the Gold Mine area source rule were specific to those area sources and should not be taken out of context.

    To the extent the commenter is claiming that a surrogate cannot be a group of HAP (e.g., total organic HAP or total HAP), the commenter's interpretation of CAA section 112(c)(6) contradicts the United States Court of Appeals for the District of Columbia Circuit's decision in National Lime, 233 F.3d at 639. In that decision, the Court held that PM, which is itself comprised of a group of pollutants, is a reasonable surrogate for metallic HAP, see National Lime, 233 F.3d at 639. Neither PM nor metallic HAP is a single HAP; each has various pollutants as constituents. As the Court holds, the EPA may set surrogate standards for HAP where it is reasonable to do so, see National Lime, 233 F.3d at 637. Therefore, a surrogate can be one or multiple pollutants as long as it is reasonable, and the reasonableness of the use of a surrogate can be properly challenged only at the time the standards are promulgated.

    For the reasons stated above, the EPA is not required in this action to re-evaluate previously promulgated MACT standards and respond to the belated comments on the substance of these standards, as the commenter claims. Congress deliberately promoted the value of finality of the EPA's standards in requiring parties to challenge rules within 60 days of promulgation under CAA section 307(b)(1), and in precluding opportunities to randomly challenge standards in post-promulgation fora such as civil or criminal enforcement proceedings. See CAA section 307(b)(2). Moreover, nothing in CAA section 112(c)(6) serves as an exception to this emphasis on finality and regulatory repose, given that CAA section 112(c)(6) itself does not require the EPA to issue any final notice or take any other final action that functions to re-open previously promulgated standards that are credited to meeting the 90 percent requirement. If, in fact, additional control of HAP, including CAA section 112(c)(6) HAP, is appropriate because of remaining risk or newly available control technologies or practices, the CAA addresses that possibility by requiring review of CAA section 112(d)(2) standards pursuant to CAA sections 112(d)(6) and (f)(2). Thus, the commenter has had and will have additional opportunities to address whether additional control of the section 112(c)(6) HAP is warranted.

    V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA because it does not contain any information collection activities.

    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. This action does not alter any of the standards discussed in this document.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect small governments. The action 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.

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

    This action does not have tribal implications, as specified in Executive Order 13175. This action does not materially alter the stringency of any standards discussed in this document. 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 the EPA does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. A health and risk assessment was not performed for this action because it does not alter any of the regulations discussed in this action.

    H. Executive Order 13211: Actions Concerning Regulations 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

    This rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low income or indigenous populations because it does not affect the level of protection provided to human health or the environment. An environmental justice evaluation was not performed for this action because it does not alter any of the regulations discussed in this action.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Dated: May 22, 2015. Gina McCarthy, Administrator.
    [FR Doc. 2015-13500 Filed 6-2-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2014-0678; FRL-9927-19] Alkyl (C8-20) Polyglucoside Esters; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of D-glucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts; D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates), C8-20 branched and linear alkyl glycosides, sodium salts; and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides when used as an inert ingredients (surfactants) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest. Lamberti USA, Inc. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of D-glucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts: D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates), C8-20 branched and linear alkyl glycosides, sodium salts; and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides.

    DATES:

    This regulation is effective June 3, 2015. Objections and requests for hearings must be received on or before August 3, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0678, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0678 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 3, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0678, by one of the following methods:

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

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

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

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

    II. Petition for Exemption

    In the Federal Register of October 15, 2014 (79 FR 61844) (FRL-9917-24), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10675) by Lamberti USA, Inc., 161 Washington St., Conshohocken, PA 19428. The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of D-glucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts (CAS Reg. No. 1079993-97-7); D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates), C8-20 branched and linear alkyl glycosides, sodium salts (CAS Reg. No. 1079993-92-2); and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides (CAS Reg. No. 1079993-94-4) (hereafter referred to in this document as alkyl polyglucoside (C8-20) esters or AGEs) when used as inert ingredients (surfactants) in pesticide formulations applied to growing crops and raw agricultural commodities. That document referenced a summary of the petition prepared by Lamberti USA Inc., the petitioner, which is available in the docket, http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit V.C.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

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

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

    Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for alkyl polyglucoside (C8-20) esters including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with alkyl polyglucoside (C8-20) esters follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by alkyl polyglucoside (C8-20) esters as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit. Limited toxicity data are available on D-glucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts); D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates), C8-20 branched and linear alkyl glycosides, sodium salts; and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides. The alkylpolyglucoside (C8-C20) esters are reaction products of glucose and fatty acids in which the alcohol moiety is attached to the polyglucoside by a β-glucosides linkage. The toxicity profile of these substances is based upon data from other, related alkyl polyglucoside esters sharing similar physical and chemical characteristics as well as expected toxicity as well as AGE metabolites lactic acid, citric acid and disodium sulfosuccinate.

    AGEs have low acute toxicity via the oral route (oral LD50 > 5,000 milligram/kilogram (mg/kg)). There is no available data regarding acute exposure via the dermal, eye or inhalation routes.

    In a combined repeated dose toxicity study with the reproduction/developmental toxicity screening test in rats (OCSPP Guideline 870.3650 study), there were no observed adverse effects for parental systemic or reproductive/developmental toxicity at 1,000 mg/kg/day.

    A 2-year chronic oral study in rats treated with citric acid was available for review. Rats were administered 5 percent or 3 percent citric acid (approx. 2,000 or 1,200 mg/kg/day) in the diet. There were no adverse effects observed at 2,000 mg/kg/day. Chronic studies were also available for the rabbit and dog. There were no adverse effects observed in either study at doses up to 1,500 and 1,400 mg/kg/day, respectively.

    Neurotoxicity studies with AGEs were not available for review. However, neurotoxicity was not observed in the combined repeated dose toxicity study with the reproduction/developmental toxicity screening test at concentrations as high as 1,000 mg/kg/day (limit dose).

    Mutagenicity studies on several surrogate chemicals did not indicate positive response for mutagenic effects. The Agency further evaluated the carcinogenic potential of alkyl polyglucoside (C8-20) esters by conducting a knowledge base qualitative structure activity relationship (SAR) database search, DEREK Nexus Version 2.0, to determine if there were structural alerts. No structural alerts were identified including carcinogenicity.

    Alkylpolyglycosides are rapidly hydrolyzed in intestine and liver. The cleavage products, sugars and long-chain alcohols, enter the pathways of lipid and carbohydrate metabolism.

    Specific information on the studies received and the nature of the adverse effects caused by, can be found at http://www.regulations.gov in the document “PC Codes 911028, 911029, 911030: Alkyl (C8-20) polyglucoside Esters (AGEs); Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations.” at (6) in docket ID number EPA-HQ-OPP-2014-0678.

    B. Toxicological Points of Departure/Levels of Concern

    Alkylglycosides are rapidly hydrolyzed in intestine and liver. The cleavage products, sugars, and long-chain alcohols enter the pathways of lipid and carbohydrate metabolism. Based on the low acute toxicity of AGEs, the body's ability to rapidly metabolize these substances, the expected metabolites being fatty acids and carbohydrates (which are normal constituents of the body), and the lack of observed adverse effects for repeat dose studies at the limit dose (1,000 mg/kg/day), no endpoint of concern was identified.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to alkyl polyglucoside (C8-20) esters, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from alkyl polyglucoside (C8-20) esters in food as follows:

    Dietary exposure to AGEs can occur from eating food treated with alkyl polyglucoside (C8-20) esters. However, a quantitative assessment was not conducted since an endpoint of concern for risk assessment was not identified.

    2. Dietary exposure from drinking water. Dietary exposure from drinking water to alkyl polyglucoside (C8-20) esters can occur by drinking water that has been contaminated by run-off from a pesticide treated area. Since an endpoint for risk assessment was not identified, a quantitative dietary exposure assessment from drinking water for alkyl polyglucoside (C8-20) esters was not conducted.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

    Alkyl polyglucoside (C8-20) esters have reported uses in personal care products, such as antiperspirants, shampoos, conditioners, and moisturizers. Residential exposure to alkyl polyglucoside (C8-20) esters via the oral, dermal, and inhalation route of exposure is also possible as a result of their use as inert ingredients in registered pesticide products that include residential uses. However, since there is toxicological endpoint identified, it is not necessary to conduct assessments of residential (non-occupational) exposures and risks.

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

    EPA has not found Alkyl polyglucoside (C8-20) esters to share a common mechanism of toxicity with any other substances, and Alkyl polyglucoside (C8-20) esters do not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that Alkyl polyglucoside (C8-20) esters do not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infant and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. The database is considered adequate for FQPA assessment. Fetal susceptibility was not observed in the combined repeated dose toxicity study with the reproduction/developmental toxicity screening test in the rat. There were no toxic effects observed in either study at the highest doses tested, 1,000 mg/kg/day. Signs of neurotoxicity were not observed in any of the submitted studies. No treatment related effects in a functional observational battery—(FOB) and on motor activity parameters were observed at doses up to 1,000 mg/kg/day; EPA has concluded that a developmental neurotoxicity study is not required. Signs of potential immunotoxicity were not observed in any of the submitted studies. Based on its assessment of available data for AGEs as discussed in Unit IV.A., EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children, and has conducted a qualitative assessment. As part of its qualitative assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children.

    E. Aggregate Risks and Determination of Safety

    Taking into consideration all available information on D-qlucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts; D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates), C8-20 branched and linear alkyl glycosides, sodium salts; and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides, EPA has determined that there is a reasonable certainty that no harm to any population subgroup will result from aggregate exposure to D-glucopyranose, oligomeric, 6-(dihydrogen citrated), C8-20 branched and linear alkyl glycosides, sodium salts; D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates),

    C8-20 branched and linear alkyl glycosides, sodium salts; and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides under reasonable foreseeable circumstances. Therefore, the establishment of an exemption from tolerance under 40 CFR 180.910 for residues of D-glucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts; D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinated), C8-20 branched and linear alkyl glycosides, sodium salts; and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides when used as inert ingredients in pesticide formulations applied to growing crops and raw agricultural commodities after harvest, is safe under FFDCA section 408.

    V. Other Considerations A. Analytical Enforcement Methodology

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

    B. Response to Comments

    One comment was received in response to the notice of filing. The comment received was from a private citizen who opposed any pesticide product that leaves a residue above 0.00. The Agency understands the commenter's concerns and recognizes that some individuals believe that no residue of pesticides should be allowed. However, under the existing legal framework provided by FFDCA section 408, EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by the statute.

    VI. Conclusions

    Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for D-glucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts (CAS Reg. No. 1079993-97-7); D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates), C8-20 branched and linear alkyl glycosides, sodium salts (CAS Reg. No. 1079993-92-2); and D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides (CAS Reg. No. 1079993-94-4) esters when used as inert ingredients (surfactants) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest.

    VII. Statutory and Executive Order Reviews

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

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

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

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

    VIII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: May 18, 2015. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. Amend § 180.910 by adding alphabetically the following inert ingredients to the table to read as follows:
    § 180.910 Inert ingredients used pre- and post-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * D-glucopyranose, oligomeric, 6-(dihydrogen citrates), C8-20 branched and linear alkyl glycosides, sodium salts (CAS Reg. No. 1079993-97-7) Surfactant. D-glucopyranose, oligomeric, 6-(hydrogen sulfosuccinates), C8-20 branched and linear alkyl glycosides, sodium salts (CAS Reg. No. 1079993-92-2) Surfactant. D-glucopyranose, oligomeric, lactates, C8-20 branched and linear alkyl glycosides (CAS Reg. No. 1079993-94-4) Surfactant. *         *         *         *         *         *         *
    [FR Doc. 2015-13509 Filed 6-2-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 413 Principles of Reasonable Cost Reimbursement; Payment for End-Stage Renal Disease Services; Optional Prospectively Determined Payment Rates for Skilled Nursing Facilities CFR Correction

    In Title 42 of the Code of Federal Regulations, Parts 1 to 399, revised as of October 1, 2014, make the following two corrections:

    1. On page 817, in § 413.89, reinstate paragraph (h)(1)(iii) to read as follows:
    § 413.89 Bad debts, charity, and courtesy allowances.

    (h) * * *

    (iii) For cost reporting periods beginning during fiscal year 2000, by 45 percent; and

    2. On page 876, in § 413.337, reinstate paragraph (e) to read as follows:
    § 413.337 Methodology for calculating the prospective payment rates.

    (e) Pursuant to section 101 of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999 (BBRA) as revised by section 314 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA), using the best available data, the Secretary will issue a new regulation with a newly refined case-mix classification system to better account for medically complex patients. Upon issuance of the new regulation, the temporary increases in payment for certain high cost patients will no longer be applicable.

    [FR Doc. 2015-13434 Filed 6-2-15; 8:45 am] BILLING CODE 1505-01-D
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 031125294-4091-02] RIN 0648-XD945 Fisheries Off West Coast States; the Highly Migratory Species Fishery; Closure AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting fishing with large-mesh drift gillnet (DGN) gear (14 inches mesh) off the coast of southern California east of 120° W. meridian from the effective date of this rule through August 31, 2015. This prohibition is based on the Assistant Administrator for Fisheries' (AA) determination that El Niño conditions are occurring off the coast of southern California. This action protects Endangered Species Act (ESA)-listed loggerhead sea turtles (Caretta caretta), specifically the endangered North Pacific Ocean Distinct Population Segment.

    DATES:

    Effective 12:01 a.m. Pacific Daylight Time (PDT), May 29, 2015, through 11:59 p.m. PDT, August 31, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Lyle Enriquez, West Coast Region (WCR), NMFS, (562) 980-4025, [email protected]

    SUPPLEMENTARY INFORMATION:

    The DGN fishery is managed under the Fishery Management Plan (FMP) for U.S. West Coast Fisheries for Highly Migratory Species (HMS) (50 CFR part 660, subpart K). The fishery occurs off the coast of California. The regulations provide that “No person may fish with, set, or haul back drift gillnet gear in U.S. waters of the Pacific Ocean east of the 120° W. meridian from June 1 through August 31 during a forecasted, or occurring, El Niño event off the coast of southern California” (50 CFR 660.713(c)(2)). This area, which falls within the Southern California Bight (SCB), is referred to in the regulations as the “Pacific loggerhead conservation area.”

    Under 50 CFR 660.713(c)(2)(ii), the AA relies on information developed by NOAA offices, such as the Climate Prediction Center (CPC) and the West Coast Office of the Coast Watch program to make the determination that an El Niño event is forecasted or occurring off southern California. The AA uses monthly sea surface temperature (SST) charts to determine whether there are warmer-than-normal SSTs off southern California “during the months prior to the closure months for years in which an El Niño event has been declared” by the CPC. Specifically, the AA uses SST data from the third and second months prior to the month of closure.

    NMFS published these regulations to protect ESA-listed loggerhead sea turtles in accordance with a reasonable and prudent alternative (RPA) in NMFS's 2000 biological opinion on issuance of an incidental take permit for the DGN fishery under the Marine Mammal Protection Act. The biological opinion concluded that loggerhead bycatch in the DGN fishery was likely to jeopardize the continued existence of loggerhead sea turtles, and recommended adoption of a RPA under which the fishery would be closed in this area during the summer months when El Niño conditions are present to avoid the likelihood of jeopardy.

    The CPC forecasts and declares when El Niño conditions exist based on conditions in equatorial waters, but does not forecast or declare when El Niño conditions exist off southern California. The Coast Watch program publishes maps of SST off the California coast through the Environmental Research Division's Data Access Program.

    On March 5, 2015, the CPC issued an El Niño advisory, declaring that El Niño conditions were present in equatorial waters. Subsequent CPC updates on April 9, 2015, and May 14, 2015, stated that El Niño conditions remain in these waters. The May 14, 2015, update predicts that there is an approximately 90 percent chance that El Niño will continue through the northern hemisphere summer of 2015, and a greater than 80 percent chance it will last through the end of 2015.

    In May 2015, NMFS WCR staff reviewed the SST anomalies in the SCB during March and April of 2015, relying on SST maps available through NOAA's Coast Watch Program (for details see http://coastwatch.pfeg.noaa.gov/erddap/index.html). These maps indicated that SSTs were above normal in the SCB. WCR staff concluded that a determination of El Niño conditions off southern California is warranted based on SSTs that are warmer than normal during the third and second months prior to the month of the closure, consistent with regulations at 50 CFR 660.713(c)(2)(ii).

    Classification

    This action is required by regulations at 50 CFR 660.713 and is exempt from Office of Management and Budget review under Executive Order 12866.

    NMFS finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) for the time-area closure of the DGN fishery. For the reasons set forth below, notice and comment procedures are impracticable and contrary to the public interest. For the same reasons, NMFS also finds good cause under 5 U.S.C. 553(d)(3) to waive the general requirement for a 30-day delay in effectiveness for this action. This measure is based upon the best available information and is necessary for the conservation of loggerhead sea turtles. The closure period anticipated by the regulation ends, at the latest, on August 31, 2015. A delay in effectiveness may allow the fishery to interact with and injure or kill loggerhead sea turtles that may occur within the SCB during the time period in which the regulation was intended to protect loggerheads.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 29, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-13601 Filed 5-29-15; 4:25 pm] BILLING CODE 3510-22-P
    80 106 Wednesday, June 3, 2015 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Parts 429 and 430 [Docket No. EERE-2013-BT-TP-0050] RIN 1904-AD10 Energy Conservation Program: Test Procedures for Ceiling Fans AGENCY:

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

    ACTION:

    Supplemental notice of proposed rulemaking.

    SUMMARY:

    In this supplemental notice of proposed rulemaking (SNOPR), the U.S. Department of Energy (DOE) proposes a number of changes to the proposed test procedure rule published on October 17, 2014. Specifically, DOE proposes to clarify that a ceiling fan is not subject to the test procedure if the plane of rotation of the ceiling fan's blades cannot be within 45 degrees of horizontal, rather than exempt air circulators (or air-circulating fan heads) from the test procedure. DOE also proposes to test high-volume small-diameter ceiling fans according to test procedures based on the current DOE test procedure for ceiling fans, rather than the Air Movement and Control Association International, Inc. (AMCA) 230 test procedure. All ceiling fans larger than seven feet in diameter would still be tested according to a test procedure based on the AMCA 230 test procedure, but all ceiling fans less than seven feet in diameter would be tested according to test procedures based on the current DOE test procedure. DOE also proposes that the test require mounting all ceiling fans with blade spans less than or equal to seven feet to the real ceiling, rather than a false ceiling, during testing. The proposed test method would also increase the number of speeds at which ceiling fans with blade spans greater than seven feet are tested, and clarify the weighting associated with each tested speed in the energy efficiency metric and update the test room dimensions for ceiling fans with blade spans greater than seven feet. Finally, DOE proposes to clarify the effective date corresponding to the NOPR proposal to reinterpret the statutory definition of a ceiling fan to include hugger ceiling fans.

    DATES:

    DOE will accept comments, data, and information regarding this SNOPR until August 17, 2015. See section V, “Public Participation,” for details.

    ADDRESSES:

    Any comments submitted must identify the SNOPR for Test Procedures for Ceiling Fans, and provide docket number EERE-2013-BT-TP-0050 and/or regulatory information number (RIN) number 1904-AD10. Comments may be submitted using any of the following methods:

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

    2. Email: [email protected] Include the docket number and/or RIN in the subject line of the message.

    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).

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

    A link to the docket Web page can be found at: http://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/101. This Web page will contain a link to the docket for this document on the regulations.gov site. The regulations.gov Web page contains simple instructions on how to access all documents, including public comments, in the docket. See section V for information on how to submit comments through regulations.gov.

    For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1604. Email: [email protected] Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 586-7796. Email: [email protected] SUPPLEMENTARY INFORMATION:

    DOE intends to incorporate by reference the following industry standard into 10 CFR part 430: ANSI/AMCA 230-12 (“AMCA 230”), Air Movement and Control Association Laboratory Methods of Testing Air Circulating Fans for Rating and Certification. Copies of ANSI/AMCA 230-12 can be obtained from the American National Standards Institute, 25 W. 43rd Street, 4th Floor, New York, NY 10036, 212-642-4900, or go to http://www.ansi.org.

    Table of Contents I. Authority and Background II. Synopsis of the Supplemental Notice of Proposed Rulemaking III. Discussion A. Ceiling Fans for Which the Plane of Rotation of the Ceiling Fan's Blades Cannot Be Within 45 Degrees of Horizontal Are Not Subject to the Test Procedure B. Update Test Procedures for High-Volume Small-Diameter Ceiling Fans C. Mount All Ceiling Fans With Blade Spans Less Than or Equal to Seven Feet to the Real Ceiling for Testing D. Test Ceiling Fans With Blade Spans Greater Than Seven Feet at Five Speeds E. Update Test Room Dimensions for Ceiling Fans With Blade Spans Greater Than Seven Feet IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 M. Description of Material Incorporated by Reference V. Public Participation A. Submission of Comments B. Issues on Which DOE Seeks Comment VI. Approval of the Office of the Secretary I. Authority and Background

    Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291, et seq.; “EPCA” or, “the Act”) sets forth a variety of provisions designed to improve energy efficiency. (All references to EPCA refer to the statute as amended through the EPS Service Parts Act of 2014, Pub. L. 113-263 (Dec. 18, 2014)). Part B of title III, which for editorial reasons was redesignated as Part A upon incorporation into the U.S. Code (42 U.S.C. 6291-6309), establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.”

    Under EPCA, this energy conservation program consists essentially of four parts: (1) Testing; (2) labeling; (3) Federal energy conservation standards; and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA and for making other representations about the efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test requirements to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

    II. Synopsis of the Supplemental Notice of Proposed Rulemaking

    After careful consideration of comments received on the NOPR, DOE is issuing this SNOPR to propose that manufacturers are not required to test ceiling fans pursuant to the test procedure if the plane of rotation of the ceiling fan's blades cannot be within 45 degrees of horizontal. This approach replaces that in the proposed rule issued on October 17, 2014 (79 FR 62521) (October 2014 NOPR), where DOE proposed to exempt ceiling fans from the test procedure based on the potentially ambiguous terms “air circulator” or “air-circulating fan head”. DOE also proposes test procedures for high-volume small-diameter ceiling fans based on the current DOE ceiling fan test procedure and require all ceiling fans with blade spans less than or equal to seven feet to be mounted directly to the real ceiling during testing. In addition, for ceiling fans with blade spans greater than seven feet, DOE proposes to increase the number of speeds at which the fans are tested and clarify the weighting associated with each speed in the proposed energy efficiency metric, as well as update the test room dimensions.

    This SNOPR summarizes and addresses comments received on the NOPR that are related to the changes proposed in this SNOPR. DOE received comments on the NOPR regarding a number of other topics that are not addressed in this SNOPR; these comments will be addressed in the final rule. The following paragraphs summarize the proposed changes in this SNOPR, with further detail provided in Section III, Discussion.

    Ceiling Fans for Which the Plane of Rotation of the Ceiling Fan's Blades Cannot Be Within 45 Degrees of Horizontal Are Not Subject to the Test Procedure

    DOE proposes that manufacturers not be required to test a ceiling fan pursuant to the test procedure if the plane of rotation of the ceiling fan's blades cannot be within 45 degrees of horizontal. This proposal would replace DOE's NOPR proposal that the test procedure does not apply to air circulators (or air-circulating fan heads), thereby removing any ambiguity associated with the terms “air circulator” or “air-circulating fan heads.” This proposal ensures that only those ceiling fans whose performance the test procedure was designed to evaluate will be subject to the test procedure.

    Update Test Procedures for High-Volume Small-Diameter Ceiling Fans

    DOE proposes to test high-volume small-diameter ceiling fans according to test procedures based on the current DOE test procedure for ceiling fans, rather than the Air Movement and Control Association International, Inc. (AMCA) 230 test procedure. As a result, all ceiling fans with blade spans less than or equal to seven feet would be tested according to the test procedures for low-volume ceiling fans proposed in the NOPR, with the distinction that high-volume small-diameter ceiling fans would be tested only at high speed, whereas low volume ceiling fans would be tested at both high speed and low speed, as proposed in the NOPR.

    Mount All Ceiling Fans With Blade Spans Less Than or Equal to Seven Feet to the Real Ceiling for Testing

    DOE proposes to test all ceiling fans with blade spans less than or equal to seven feet with the ceiling fan mounted to the real ceiling, rather than a false ceiling, while maintaining the required vertical distance between the air velocity sensor heads and the bottom of the ceiling fan blades. This would provide a better representation of ceiling fan efficiency and would likely incur less test burden than testing with the ceiling fan mounted to a false ceiling.

    Test Ceiling Fans With Blade Spans Greater Than Seven Feet at Five Speeds

    DOE proposes to test all ceiling fans with blade spans greater than seven feet at five speeds spaced equally over the range of available speeds: 20%, 40%, 60%, 80%, and 100% of the measured maximum speed revolutions per minute (rpm). DOE also proposes to clarify the weighting associated with each tested speed in the energy efficiency metric.

    Update Test Room Dimensions for Ceiling Fans With Blade Spans Greater Than Seven Feet

    DOE proposes to update the test room dimensions for all ceiling fans with blade spans greater than seven feet. The updates represent potential increases to the required test room dimensions relative to those dimensions proposed in the NOPR for high-volume ceiling fans.

    III. Discussion A. Ceiling Fans for Which the Plane of Rotation of the Ceiling Fan's Blades Cannot Be Within 45 Degrees of Horizontal Are Not Subject to the Test Procedure

    In the NOPR, DOE stated that the proposed test procedures would not apply to air circulators (or air-circulating fan heads) that are typically mounted on a pedestal but could also include wall, ceiling, or I-beam mounting brackets. DOE then referenced section 5.1.1 of AMCA 230-12 for the definition of an air circulator. In response, DOE received comments from Fanimation, Matthews Fan Company, and BAS requesting clarification of the definition of the term “air circulator,” as the language in AMCA 230 is ambiguous. (Fanimation, Public Meeting Transcript, No. 83 at p. 21; Matthews Fan Company, Public Meeting Transcript, No. 83 at pp. 22-23; Big Ass Solutions, Public Meeting Transcript, No. 83 at pp. 23-24) ALA further requested that DOE clarify if a fan head assembly consisting of a motor, impeller, and guard mounted on a downrod classified as an air circulator. (American Lighting Association, No. 8 at pp. 4-5)

    Per suggestion by BAS to review other sections of AMCA 230 for a clearer definition of an air circulator, DOE reviewed AMCA 230-12 for more specific language, but only found potentially ambiguous language. DOE's intention in excluding air circulators from the test procedure was to ensure that only ceiling fans that could be properly assessed with the test procedure were subject to the test procedure. For example, DOE intended to exclude ceiling fans that only moved air horizontally, rather than primarily downward, as the test procedure is not designed to provide accurate performance data for such fans. In this supplemental proposal, DOE proposes that if the plane of rotation of a ceiling fan's blades cannot be within 45 degrees of horizontal, the ceiling fan is not subject to the test procedure. In this way, DOE is not specifically excluding “air circulators”; instead, DOE is excluding from the test procedure only ceiling fans that do not have the majority of their airflow directed vertically downward.

    B. Update Test Procedures for High-Volume Small-Diameter Ceiling Fans

    In the NOPR, DOE proposed different test methods for low-volume ceiling fans and high-volume, small-diameter ceiling fans. Specifically, DOE proposed to test low-volume ceiling fans according to a modified version of the current DOE test procedure, which is based on the “Energy Star Testing Facility Guidance Manual: Building a Testing Facility and Performing the Solid State Test Method for ENERGY STAR Qualified Ceiling Fans, Version 1.1.” In contrast, DOE proposed to test all high-volume ceiling fans (including high-volume small-diameter ceiling fans) according to the test procedure set forth in AMCA 230-12, but subject to the proposed test room dimensions set forth in the NOPR. These two test procedures are fundamentally different, as the NOPR low-volume ceiling fan test procedure determines airflow based on air velocity measurements, whereas the NOPR high-volume ceiling fan test procedure determines airflow based on load differential measured using a load cell.

    Data presented by Big Ass Solutions (BAS) at the November 19, 2014 public meeting shows that the AMCA 230 test procedure results in a decrease in the measured performance for the same fan as compared to the NOPR test procedure for low-volume ceiling fans. (BAS, Public Meeting Transcript, No. 5 at pp. 63-64).1 Given this, BAS expressed that there may be instances where a small-diameter fan has a large enough measured airflow under the NOPR low-volume test procedure to move it into the high-volume category, but when tested according to the NOPR high-volume test procedure, the measured airflow would be too low for the fan to qualify for the high-volume category. Id. BAS added that the decrease in rated performance of the high-volume small-diameter fan according to the NOPR test procedure could lead to a consumer selecting a less-efficient product when choosing between a low-volume and high-volume small-diameter ceiling fans based on NOPR test method results. Id. BAS suggested that all ceiling fans with blade spans less than or equal to seven feet be tested according to the same test method, based on DOE's current test procedure for ceiling fans, and ceiling fans with blade spans of more than seven feet be tested according to AMCA 230. (BAS, Public Meeting Transcript, No. 5 at p. 64) Emerson Electric Company (Emerson), Westinghouse Lighting (Westinghouse), Hunter Fan Company (Hunter), Fanimation, and Minka Group all agreed with BAS' suggestion. Furthermore, the American Lighting Association (ALA) stated that manufacturers are more familiar with the ENERGY STAR test procedure and prefer it for measuring the performance of all ceiling fans with blade spans less than or equal to seven feet. (ALA, No. 8 at pp. 7-8) In particular, ALA expressed concern about the repeatability and test burden associated with load-cell testing of high-volume ceiling fans with blade spans less than or equal to seven feet (as required in AMCA 230). (Id.)

    1 A notation in this form provides a reference for information that is in the docket of DOE's rulemaking to develop test procedures for ceiling fans (Docket No. EERE-2013-BT-TP-0050), which is maintained at www.regulations.gov. This notation indicates that the statement preceding the reference is document number 5 in the docket for the ceiling fan and ceiling fan light kits energy conservation standards rulemaking and appears at pages 63-64 of that document.

    DOE recognizes the concerns put forth by BAS et al. According to ALA, manufacturers are already accustomed to testing ceiling fans with blade spans less than or equal to seven feet according to the current ENERGY STAR test procedure which, along with the current DOE test procedure and the test procedures proposed in the NOPR for low-volume ceiling fans, is based on “Energy Star Testing Facility Guidance Manual: Building a Testing Facility and Performing the Solid State Test Method for ENERGY STAR Qualified Ceiling Fans, Version 1.1.” DOE prefers to harmonize with the accepted industry test procedures where appropriate. Proposing test procedures for high-volume small-diameter ceiling fans based on the test procedures proposed in the NOPR for low-volume ceiling fans is more consistent with this objective.

    In the NOPR, DOE proposed a different test procedure for all high-volume ceiling fans (including those with blade spans less than or equal to seven feet) in part because some large-diameter ceiling fans (i.e., those ceiling fans with blade spans greater than seven feet) are too large to be tested in current low-volume ceiling fan test facilities, and testing with a single load cell is more practical than testing with numerous air velocity sensors for large-diameter fans. For ceiling fans with blade spans less than or equal to seven feet, however, these experimental concerns are significantly less compelling. In the NOPR, DOE assumed that high-volume small-diameter and high-volume large-diameter ceiling fans were substitutes for one another (for example an array of high-volume small-diameter ceiling fans substituting for a single high-volume large diameter ceiling fan) and proposed the same test procedure for all high-volume ceiling fans to allow for comparison. Feedback from stakeholders indicates that industry practice is to use an ENERGY STAR style test procedure for high-volume small-diameter ceiling fans and that high-volume small-diameter ceiling fans may be substitutes for low-volume ceiling fans. Consequently, DOE agrees with interested parties that a test procedure for high-volume small-diameter fans based on the NOPR test procedure for low-volume ceiling fans would be more appropriate.

    Therefore, DOE proposes to test all ceiling fans with blade spans less than or equal to seven feet according to the low-volume ceiling fan test procedures proposed in the NOPR, except that, as in the NOPR, high-volume small-diameter ceiling fans would be tested at only high speed while low-volume ceiling fans would be tested at both high and low speed. A further modification to the NOPR test procedure for low-volume ceiling fans and high-volume small-diameter ceiling fans is discussed in section III.C. High-volume small-diameter ceiling fans would be tested at only high speed because, as discussed in the NOPR, high-volume small-diameter ceiling fans typically do not have discrete speeds so speeds other than high may not be well defined. Additionally, DOE does not have enough information to estimate a distribution of time spent at speeds other than high speed for the efficiency metric for high-volume small diameter ceiling fans.

    C. Mount All Ceiling Fans With Blade Spans Less Than or Equal to Seven Feet to the Real Ceiling for Testing

    In the NOPR, DOE proposed to mount all low-volume ceiling fans to a false ceiling for testing. Using an adjustable-height false ceiling would allow the air velocity sensor height to remain constant, while the ceiling fan mounting height could be adjusted to obtain the required distance between the bottom of the ceiling fan blades and the air velocity sensors. The NOPR proposal was based on an assumption that mounting the ceiling fans to an adjustable-height false ceiling for testing would be less burdensome than adjusting the height of the air velocity sensors.

    In response to the NOPR, at the November 2014 public meeting, BAS presented test results indicating a decrease in measured efficiency performance when a ceiling fan is mounted to a false ceiling rather than a real ceiling. (BAS, Public Meeting Transcript, No. 5 at pp. 125-126) BAS also stated that testing with the ceiling fan mounted to a real ceiling is more representative of actual use, and Fanimation and Minka Group agreed with Big Ass Solution's comments. (Id.; Fanimation, Public Meeting Transcript, No. 5 at p. 129; Minka Group, Public Meeting Transcript, No. 5 at p. 129) In regard to test burden, BAS indicated that keeping the false ceiling level and in correct position during testing is more burdensome than adjusting the height of the air velocity sensors. (BAS, Public Meeting Transcript, No. 5 at p. 131) Hunter Fan Company suggested that their lab uses a different air velocity sensor mounting system, and therefore it could be more burdensome to adjust the height of the air velocity sensors. (Hunter Fan Company, Public Meeting Transcript, No. 5 at p. 131)

    DOE agrees with BAS that testing with the ceiling fan mounted to the real ceiling is more representative of actual use. DOE further acknowledges the concerns put forth by BAS—and the potential counterpoint provided by Hunter Fan Company—and has reviewed the proposal to mount all low-volume and high-volume small-diameter ceiling fans to a false ceiling during testing. DOE reviewed the data provided by BAS and noted a decrease in airflow efficiency of approximately 10% across the range of speeds tested when testing with a false ceiling rather than the real ceiling compelling. Additionally, DOE received test cost estimates from two test labs that show that testing with a false ceiling may be more financially burdensome than testing with the ceiling fan mounted to the real ceiling and adjusting the height of the air velocity sensors. The cost estimates received indicate a cost of $600-$1,800 for testing with a false ceiling, as opposed to $725-$1,500 for testing with the real ceiling. The minimum expected cost for testing with a real ceiling is higher than for testing with a false ceiling due to the one-time cost associated with implementing a change to the experimental set up to allow for the adjustment of the height of the air velocity sensors. The average variable test costs for testing with the real ceiling, however, are lower compared to testing with a false ceiling. DOE approximates the fixed costs for the one-time modification to be $2000 or less. DOE expects that test labs will be able to amortize the fixed costs over many tests. Consequently, the total average costs for testing with the real ceiling are lower than testing with a false ceiling.

    Therefore, DOE proposes to mount all ceiling fans with blade spans less than or equal to seven feet to the real ceiling, rather than a false ceiling, for testing. DOE also clarifies that with this proposal to mount the ceiling fan to the real ceiling, the height of the air velocity sensors must be adjusted to achieve the specified vertical distance (43 inches) between the bottom of the fan blades and the air velocity sensor heads for each mounting configuration in which the ceiling fan is tested.

    D. Test Ceiling Fans With Blade Spans Greater Than Seven Feet at Five Speeds

    DOE proposed to test all high-volume ceiling fans—regardless of blade span—at high speed in the NOPR. DOE proposed testing only at a single speed because high-volume ceiling fans are often equipped with a speed controller that is continuously adjustable rather than having discrete speeds (e.g., low, medium, and high). In response to the NOPR proposal, DOE received several comments from stakeholders. MacroAir and the AMCA Committee indicated that an upcoming revision of AMCA 230 would contain a requirement to test at five speeds (20%, 40%, 60%, 80%, and 100% of the maximum achievable speed) and suggested DOE harmonize with this approach. (MacroAir, No. 6 at p. 5; AMCA, No. 84 2 at pp. 2-3) MacroAir also suggested that the overall efficiency of the ceiling fan should be calculated by taking performance data at each of the five speeds and then calculating a weighted average of those data based on the estimated operating hours at each speed. Id.

    2 This document was submitted to the docket of DOE's rulemaking to develop energy conservation standards for ceiling fans (Docket No. EERE-2012-BT-STD-0045).

    DOE believes it is preferable to align the DOE ceiling fan test procedure with the accepted industry test procedures—in this case AMCA 230—as much as possible. DOE also notes that testing at five speeds rather than just at high speed may provide a more holistic representation of a ceiling fan's performance over a range of service levels, which may in turn facilitate easier comparisons for consumers. Finally, MacroAir supported testing at five speeds. (MacroAir, No. 6 at p. 6) Given these points, DOE proposes in this SNOPR to test all ceiling fans with blade spans greater than seven feet at five equally-spaced speeds: 20%, 40%, 60%, 80%, and 100% of the rpm of the maximum achievable speed. DOE clarifies that these speed settings are to be based on actual rpm measurements, and also notes that this proposal has no effect on ceiling fans with blade spans less than or equal to seven feet, as set forth in III.B.

    DOE is unaware of any ceiling fan with blade span greater than seven feet in diameter that does not have a speed controller that is continuously adjustable. DOE seeks comment and information on whether there are any ceiling fans with blade spans greater than seven feet for which the proposed test procedure in this SNOPR could not be applied (i.e., any ceiling fans larger than seven feet in diameter that could not achieve the five speeds specified).

    The equation and daily operating hours proposed in the NOPR to calculate the efficiency of ceiling fans larger than seven feet in diameter would need to be updated to enable testing these fans at five speeds. In the NOPR, DOE proposed the following efficiency equation for all high-volume ceiling fans to be tested at only high speed:

    EP03JN15.002 Where: CFM H = airflow at high speed, OH A = operating hours in active mode, W H = power consumptionat high speed. OH Sb = operating hours in standby mode, and W Sb = power consumption in standby mode

    Based on the proposal to test all ceiling fans with blade spans greater than seven feet at five speed settings, DOE proposes to use the following equation to calculate the weighted ceiling fan efficiency for these ceiling fans:

    EP03JN15.003 Where: CFM i = airflow at speed OH i = operating hours at speed W i = power consumption at speed OH sb = operating hours in standby mode, and W sb = power consumption in standby mode.

    The daily operating hours at each of the five speeds are an input to this equation. In the NOPR, DOE proposed the following daily operating hours for all high-volume ceiling fans: 12 hours of active mode and 12 hours of non-active mode. In response to the proposed operating hours, MacroAir and BAS separately provided breakdowns of daily operating hours for large-diameter ceiling fans by speed setting (Table 1). (MacroAir, No. 6 at p. 5; BAS, No. 88 3 at pp. 37, 39).

    3 This document was submitted to the docket of DOE's rulemaking to develop energy conservation standards for ceiling fans (Docket No. EERE-2012-BT-STD-0045).

    Table 1—Manufacturer-Suggested Daily Operating Hours by Speed Setting for Large-Diameter Ceiling Fans Manufacturer Daily operation by speed setting (h) 100% 80% 60% 40% 25% 20% Off/Standby MacroAir 3 4 6 4 1 6 Big Ass Solutions 0.6 3 1.2 7.2 12

    In their comments, BAS did not provide this breakdown in daily operating hours explicitly; instead, BAS presented an alternative hours of use analysis in which they presented annual hours of operation at each of four speeds. In this alternative analysis, BAS did not alter DOE's proposed 12 hours of active use per day, so DOE assumes BAS agreed with this value.

    To account for both daily operating hours breakdowns, DOE calculated a simple average of the proposed operating hours by speed setting (in calculating this average, DOE mapped the 7.2 h at 25% speed suggested by BAS to the 20% speed setting). Using this simple average, DOE proposes in this SNOPR to use the daily operating hours in Table 2 for all ceiling fans with blade spans greater than seven feet for use in the efficiency calculation.

    Table 2—Daily Operating Hours by Speed Setting for Ceiling Fans With Blade Spans Greater Than Seven Feet Setting No
  • standby
  • With standby
    100% (Max) Speed 1.8 1.8 80% Speed 3.5 3.5 60% Speed 3.6 3.6 40% Speed 2.0 2.0 20% Speed 4.1 4.1 Standby Mode 0.0 9.0 Off Mode 9.0 0.0
    E. Update Test Room Dimensions for Ceiling Fans With Blade Spans Greater Than Seven Feet

    In the NOPR, DOE proposed to test all high-volume ceiling fans, including ceiling fans larger than seven feet in diameter, using a test procedure based on AMCA 230-12. Because AMCA 230-12 is only applicable to ceiling fans with blade spans of six feet or less, DOE proposed to modify the specified room dimensions to allow for the testing of larger ceiling fans. The NOPR proposed a test procedure with the following modifications to the room dimensions in AMCA 230-12: (1) The minimum distance between the ceiling and the blades of a ceiling fan being tested is 44 inches for all blade diameters, (2) ceiling fans larger than 6 feet in diameter must have a 20 foot clearance between the floor and the blades of the fan being tested, and (3) for ceiling fans larger than 6 feet in diameter, the minimum distance between the centerline of a ceiling fan being tested and walls and large obstructions all around is half the ceiling fan blade span plus 10 feet.

    BAS stated during the public meeting that AMCA 230 is currently being revised and suggested that the test room dimensions proposed by DOE and the updated version of AMCA 230 be harmonized. (BAS, Public Meeting Transcript, No. 5 at pp. 141-142) BAS specifically disagreed with the proposed clearance above the ceiling fan blades. (BAS, Public Meeting Transcript, No. 5 at p. 143) Westinghouse did not comment on the clearance height above the ceiling fan blades, but did express acceptance of the ten feet of lateral clearance from the fan blade tips that DOE proposed. (Westinghouse, Public Meeting Transcript, No. 5 at p. 144)

    AMCA has yet to release the updated version of AMCA 230, but the test room dimensions currently being considered by the AMCA Committee for the updated standard have been made publicly available. The AMCA Committee is currently considering the following test room dimensions for the updated standard: (1) Minimum distance between the ceiling and the blades of a ceiling fan being tested shall be 40% of the ceiling fan blade span; (2) Minimum distance between the floor and the blades of the fan shall be the larger of 80% of the ceiling fan blade span or 15 feet; and (3) Minimum distance between the centerline of a ceiling fan and walls and/or large obstructions is 150% of the ceiling fan blade span. (AMCA, No. 84 4 at p. 2)

    4 This document was submitted to the docket of DOE's rulemaking to develop energy conservation standards for ceiling fans (Docket No. EERE-2012-BT-STD-0045).

    DOE considered whether the room dimension requirements expected to be included in the updated version of AMCA 230 would limit any manufacturers' access to a test facility large enough to meet the proposed test procedure requirements. DOE notes that, for ceiling fans with blade spans greater than or equal to 10 feet, the minimum distance between the ceiling and the top of the blades and the minimum distance between the centerline of the ceiling fan and walls or large obstructions is greater for the dimensions suggested by MacroAir and the AMCA Committee than for the dimensions proposed in the NOPR. However, DOE does not believe that access to test facilities for ceiling fan manufacturers is significantly decreased by the increased test room dimensions proposed in this SNOPR relative to the test room dimensions proposed in the NOPR. Therefore, this SNOPR proposes that the test room dimensions for ceiling fans with blade spans larger than seven feet meet the following criteria: (1) Minimum distance between the ceiling and the blades of a ceiling fan being tested shall be 40% of the ceiling fan blade span; (2) Minimum distance between the floor and the blades of the fan shall be the larger of 80% of the ceiling fan blade span or 15 feet; and (3) Minimum distance between the centerline of a ceiling fan and walls and/or large obstructions is 150% of the ceiling fan blade span. DOE intends to review the final published version of AMCA 230 when it is available. If the test room dimensions specified in the final version are identical in substance to the test procedure test room requirements DOE has proposed for high-volume ceiling fans, DOE will consider incorporating AMCA 230 by reference in the rule. Alternatively, DOE may also decide to incorporate it by reference, but with modifications. DOE notes that in accordance with the proposal in section III.B of this SNOPR, the room dimensions would only apply to ceiling fans with blade spans greater than seven feet.

    IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866

    The Office of Management and Budget has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this regulatory action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).

    B. Review Under the Regulatory Flexibility Act

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

    DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act (RFA) and the policies and procedures published on February 19, 2003. The proposed rule prescribes test procedure amendments that would be used to determine compliance with any amended energy conservation standards that DOE may prescribe for ceiling fans. DOE has prepared an initial regulatory flexibility analysis (IRFA) for this rulemaking. The IRFA describes potential impacts on small businesses associated with ceiling fan testing requirements. DOE seeks comment on the discussion below and will develop a final regulatory flexibility analysis (FRFA) for any final test procedures developed in this test procedure rulemaking.

    DOE has transmitted a copy of this IRFA to the Chief Counsel for Advocacy of the Small Business Administration for review.

    (1) Description of the reasons why action by the agency is being considered.

    A description of the reasons why DOE is considering this test procedure is provided elsewhere in the preamble and not repeated here.

    (2) Succinct statement of the objectives of, and legal basis for, the proposed rule.

    The objectives of and legal basis for the proposed rule are stated elsewhere in the preamble and not repeated here.

    (3) Description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.

    For the manufacturers of the covered ceiling fan products, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 13 CFR part 121. The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at: http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf. Ceiling fan manufacturing is classified under NAICS code 335210, “Small Electrical Appliance Manufacturing” or NAICS code 333412, “Industrial and Commercial Fan and Blower Manufacturing.” The SBA sets a threshold for NAICS classification for 335210 and 333412 of 750 employees or less and 500 employees or less, respectively.5 DOE reviewed ALA's list of ceiling fan manufacturers,6 the ENERGY STAR Product Databases for Ceiling Fans,7 the California Energy Commission's Appliance Database for Ceiling Fans,8 and the Federal Trade Commission's Appliance Energy Database for Ceiling Fans.9 Based on this review, using data on the companies for which DOE was able to obtain information on the numbers of employees, DOE estimates that there are between 25 and 35 small business manufacturers of low-volume ceiling fans. To determine the number of small business manufacturers of high-volume ceiling fans, DOE reviewed SBA's Web site, high-volume ceiling fan manufacturers Web sites, and company reports from Hoovers.com, in addition to speaking with industry experts. Based on this review, DOE estimates that there are between 5 and 10 small business manufacturers of high-volume small-diameter ceiling fans and DOE estimates there are between 10 and 15 small business manufacturers of high-volume large-diameter fans. DOE invites interested parties to comment on the estimated number of small business manufacturers of ceiling fans.

    5 U.S. Small Business Administration, Table of Small Business Size Standards (August 22, 2008) (Available at: http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf).

    6 The American Lighting Association, list of Manufacturers & Representatives (Available at: http://www.americanlightingassoc.com/Members/Resources/Manufacturers-Representatives.aspx).

    7 The U.S. Environmental Protection Agency and the U.S. Department of Energy, ENERGY STAR Ceiling Fans—Product Databases for Ceiling Fans (Available at: http://www.energystar.gov/products/certified-products/detail/ceiling-fans).

    8 The California Energy Commission, Appliance Database for Ceiling Fans (Available at: http://www.appliances.energy.ca.gov/QuickSearch.aspx).

    9 The Federal Trade Commission, Appliance Energy Databases for Ceiling Fans (Available at: http://www.ftc.gov/bcp/conline/edcams/eande/appliances/ceilfan.htm).

    (4) Description of the projected compliance requirements of the proposed rule.

    In the test procedure NOPR, DOE proposed to reinterpret the statutory definition of a ceiling fan to include hugger ceiling fans. DOE also proposed that high-volume fans meet the definition of a ceiling fan. The proposed changes in interpretation of the ceiling fan definition discussed above would result in the applicability of the design standards set forth in EPCA at 42 U.S.C. 6295(ff)(1) to the following types of fans 30 days after the publication of any final test procedure adopting such changes in interpretation:

    1. Fans suspended from the ceiling using a downrod or other means of suspension such that the fan is not mounted directly to the ceiling;

    2. Fans suspended such that they are mounted directly or close to the ceiling;

    3. Fans sold with the option of being suspended with or without a downrod; and

    4. Fans capable of producing large volumes of airflow.

    DOE research indicates that all ceiling fans currently on the market, including hugger ceiling fans and high-volume ceiling fans, appear to meet the EPCA design standards. DOE conducted an analysis of Hansen Wholesale, an online wholesaler that sells over 2000 models of ceiling fans, including a wide variety of ceiling fan brands. Hansen Wholesale provides product specifications on its Web site, including the number of speeds and whether a ceiling fan is reversible. DOE examined all of the ceiling fans that were self-identified as hugger ceiling fans and found that they all had fan controls separate from lighting controls, were capable of being operated at more than one speed, and were capable of being operated in reverse.

    For high-volume ceiling fans, DOE searched for product specifications on the Web sites of manufacturers of high-volume large-diameter ceiling fans and from Web sites of retailers of high-volume small-diameter ceiling fans. Only one high-volume ceiling fan model was found with a light kit, and the fan controls were separate from the lighting controls for that fan. All high-volume ceiling fans appeared to be capable of operating at more than one speed (typically with an adjustable speed control). High-volume ceiling fans are primarily sold for industrial purposes and are therefore not subject to the requirement to be capable of operating in reverse.

    Based on this research, DOE does not expect any cost of complying with the design requirements for manufacturers of hugger or high-volume ceiling fans.

    DOE proposes measures to limit the burden of testing on all manufacturers, including small business manufacturers, while providing a representative measurement of ceiling fan efficiency for consumers. Low-volume ceiling fans (excluding hugger fans) are currently required to test at high speed due to FTC's labeling requirement for ceiling fans. As discussed in more detail in the TP NOPR, DOE proposed to specify that low speed is to be tested as well as high speed to have a test procedure that is representative of typical use. DOE estimates that the cost to test at low speed, in addition to high speed, represents an average additional cost of $87.5 (or $175 per basic model) above the high-speed test cost.

    DOE notes that if the concurrent rulemaking regarding energy conservation standards for ceiling fans results in efficiency performance standards, DOE would require testing for certification of two ceiling fans per basic model, the minimum sample size required by 10 CFR 429.11. To determine the potential cost of the proposed test procedure on small ceiling fan manufacturers under a potential energy conservation standard for ceiling fans, DOE estimated the cost of testing two ceiling fans. The cost of testing was then multiplied over the estimated number of basic models produced by a small manufacturer. The estimated cost of testing is discussed in further detail below.

    In the test procedure NOPR, DOE proposed to: (1) Reinterpret the statutory definition of a ceiling fan such that it would include hugger ceiling fans; the proposed test method for hugger ceiling fans would be the same as the proposed test method for all other low volume ceiling fans; (2) clarify that low-volume ceiling fans should be tested at low and high speeds; (3) eliminate the requirement to use a test cylinder; and (4) add a test method for power consumption in standby mode.

    In this SNOPR, DOE proposes to: (1) Not require testing of a ceiling fan if the plane of rotation of the ceiling fan's blades cannot be within 45 degrees of horizontal; (2) test high-volume small-diameter ceiling fans based on the current DOE ceiling fan test procedure; (3) require all ceiling fans with blade spans less than or equal to seven feet be mounted directly to the real ceiling during testing; (4) increase the number of speeds at which ceiling fans with blade spans greater than seven feet are tested, and also clarify the weighting associated with each speed in the energy efficiency metric; and (5) update the test room dimensions for all ceiling fans with blade spans greater than seven feet.

    DOE estimated the cost to test a low-volume ceiling fan based on estimates from third-party testing facilities of the cost to perform the current ENERGY STAR test procedure for ceiling fans, which is similar to DOE's proposed test procedure, and the changes in cost associated with the key differences between the two test procedures. DOE's proposed test procedure for low-volume ceiling fans differs from the current ENERGY STAR test procedure in that it (1) requires testing at only two fan speeds instead of three, (2) requires mounting the ceiling fan to the real ceiling, (3) does not require the use of a test cylinder, (4) requires less warm up time before testing at low speed, (5) requires adjusting the height of the air velocity sensors, and (6) requires standby-mode testing.

    In aggregate, DOE estimates that these differences will result in a lower test cost for the proposed DOE test procedure for low-volume ceiling fans when compared to the ENERGY STAR test procedure for ceiling fans. Testing at only two speeds instead of three yields a total test time that is approximately 35 minutes shorter than the ENERGY STAR test procedure. The proposed test procedure would also require mounting ceiling fans to the real ceiling, which would involve a one-time lab cost for a mechanism that allows for the adjustment of the height of the air velocity sensors to keep the distance between the bottom of the fan blades and the air velocity sensor heads at a specified vertical distance (43 inches). Based on the materials employed and test quotes from third-party labs, DOE estimates the one-time cost to construct a mechanism to allow for the adjustment of the height of the air velocity sensors is less than $2000. Once the mechanism is constructed, it can be used to test all low-volume ceiling fans, and therefore would not add substantial test cost thereafter.

    DOE's proposed test procedure, which would not require use of a test cylinder, also eliminates any potential costs associated with purchasing new test cylinders. If the test procedure required the use of test cylinders, then a new cylinder would be necessary to test any ceiling fan with a diameter that does not correspond to one of the cylinders in a test lab's existing inventory. Based on discussions with third-party testing facilities, DOE estimates that new test cylinders would cost approximately $2000-3000 per cylinder. By not using a cylinder, these costs will be avoided. Not requiring a test cylinder also shortens the test time of DOE's proposed test procedure relative to ENERGY STAR's test procedure for all low-volume ceiling fans, because time is not required to put a test cylinder in place for each test (estimated to take 15 minutes). Additionally, DOE's proposed test procedure only requires 15 minutes of warm up time before testing at low speed compared to 30 minutes in the ENERGY STAR test procedure, further reducing the relative amount of time required for DOE's proposed test procedure by 15 minutes. In total, DOE estimates that the typical time to perform the proposed test procedure will be shorter by 65 minutes compared to ENERGY STAR's test procedure.

    The test procedure NOPR proposed to add a requirement for standby-mode testing for ceiling fans with standby functionality. A study performed by Lawrence Berkeley National Laboratory found that 7.4% of low-volume ceiling fans have standby capability.10 Using the quotes provided by third-party testing facilities, DOE estimates that the standby test for all ceiling fans with standby functionality will cost $200 per basic model.

    10 Kantner, C. L. S., S. J. Young, S. M. Donovan, and K. Garbesi. Ceiling Fan and Ceiling Fan Light Kit Use in the U.S.—Results of a Survey on Amazon Mechanical Turk. 2013. Lawrence Berkeley National Laboratory: Berkeley, CA. Report No. LBNL-6332E. http://www.escholarship.org/uc/item/3r67c1f9.

    Based on all of the differences between the test procedure proposed and the ENERGY STAR test procedure, and estimates from third-party testing facilities of the labor costs associated with these differences, DOE estimates that the test procedure proposed for standard, hugger and multi-head ceiling fans will cost $1500 on average per basic model, once the mechanism for the adjustment of the height of the air velocity sensors is constructed. Therefore, DOE estimates that the total weighted average test cost for the proposed test procedure and standby testing for standard, hugger and multi-head ceiling fans will be $1515. For multi-mount ceiling fans, DOE estimates that the test cost will be approximately double the cost for standard, hugger and multi-head ceiling fans.

    For the approximately 25-35 small business manufacturers of low-volume ceiling fans that DOE identified, the number of basic models produced per manufacturer varies significantly from one to approximately 80. DOE notes that standard, hugger and multi-head ceiling fans represent about 95% of basic models for low-volume ceiling fans and multi-mount ceiling fans represent about 5% of basic models for low-volume ceiling fans. Therefore, based on the test cost per ceiling fan basic model, the weighted average testing cost in the first year would range from approximately $1515 to $127,243 for small manufacturers of ceiling fans. DOE expects this cost to be lower in subsequent years because only new or redesigned ceiling fan models would need to be tested.

    The proposed test method for ceiling fans with blade span less than or equal to seven feet is also applicable to high-volume small-diameter ceiling fans. The key differences between the proposed test method for low-volume ceiling fans and high-volume small-diameter ceiling fans are that high-volume small-diameter ceiling fans require testing at only one fan speed instead of two speeds. DOE estimates that the test costs for high-volume small-diameter fans are reduced by $175 per basic model due to testing at one speed. Therefore a typical test for a single-headed high-volume small-diameter ceiling fan would cost approximately $1325 per basic model. DOE did not find accurate data on the percentage of high-volume small-diameter fans with standby capability, though DOE located some high-volume small-diameter fans without standby capability in web searches. To provide a conservative cost estimate, DOE made the assumption that all high-volume small-diameter fans should be tested for standby power. DOE estimates that the total test cost for the proposed test procedure and standby testing for a single-headed high-volume small-diameter ceiling fans will be $1525.

    For the approximately 10-15 small business manufacturers of high-volume small-diameter ceiling fans that DOE identified, the number of basic models produced per manufacturer varies significantly from one to approximately 30. Therefore, based on the test cost per ceiling fan basic model, the testing cost in the first year would range from approximately $1525 to $45,750 for small manufacturers of high-volume small-diameter ceiling fans. DOE expects this cost to be lower in subsequent years because only new or redesigned ceiling fan models would need to be tested.

    DOE estimated the cost to test a high-volume large-diameter ceiling fan based on discussions with testing facilities capable of performing the AMCA 230 test procedure as well as cost estimates based on the time and labor costs necessary to perform the proposed test procedure on high-volume large-diameter ceiling fans. DOE estimates that the one-time cost for a lab to buy a load-cell, a fabricated load-cell frame, power meter, and one air velocity sensor is approximately $4500. DOE estimates that the test procedure proposed in this SNOPR for high-volume large-diameter ceiling fans will cost manufacturers on average $7500 per basic model. Hence, DOE estimates that the total test cost for the proposed test procedure and standby testing for a high-volume large-diameter ceiling fans will be $7,700.

    For the approximately 5-10 small business manufacturers of high-volume large-diameter ceiling fans that DOE identified, the number of basic models produced per manufacturer varies from one to 30. Therefore, based on the test cost per ceiling fan basic model, the testing cost in the first year would range from approximately $7700 to $231,000 for small manufacturers of high-volume large-diameter ceiling fans. DOE expects this cost to be lower in subsequent years because only new or redesigned ceiling fan models would need to be tested.

    DOE used company reports from Hoovers.com, information from manufacturers' Web sites and feedback from manufacturers to estimate the revenue for the small business manufacturers of low and high-volume ceiling fans identified. The median revenue of the small business manufacturers of low-volume ceiling fans is approximately $15M. Relative to the median revenue for a small business manufacturer, the total testing cost ranges from 0.01 percent to 0.85 percent of the median revenue. The median revenue of the small business manufacturers of high-volume small-diameter ceiling fans is approximately $11M. Relative to the median revenue for a small business manufacturer of high-volume ceiling fans, the total testing cost ranges from 0.01 percent to 0.42 percent of the median revenue. The median revenue of the small business manufacturers of high-volume large-diameter ceiling fans is approximately $9M. Relative to the median revenue for a small business manufacturer of high-volume ceiling fans, the total testing cost ranges from 0.09 percent to 2.6 percent of the median revenue.

    For both low and high-volume ceiling fans, DOE does not expect that small manufacturers would necessarily have fewer basic models than large manufacturers, because ceiling fans are highly customized throughout the industry. A small manufacturer could have the same total cost of testing as a large manufacturer, but this cost would be a higher percentage of a small manufacturer's annual revenues. DOE requests comments on its analysis of burden to small businesses for testing ceiling fans according to the proposed test procedure.

    (5) Relevant Federal rules which may duplicate, overlap or conflict with the proposed rule.

    DOE is not aware of any other Federal rules that would duplicate, overlap or conflict with the rule being proposed.

    (6) Description of any significant alternatives to the proposed rule.

    DOE considered a number of industry and governmental test procedures that measure the efficiency of ceiling fans to develop the proposed test procedure in this rulemaking. There appear to be two common approaches to testing ceiling fans: An approach based on using air velocity sensors to calculate airflow, such as the current DOE test procedure for ceiling fans, ENERGY STAR's test procedure, and CAN/CSA-C814-10, and an approach based on using a load cell to measure thrust, such as AMCA 230.

    In principle, either approach could be used to measure the airflow efficiency of all ceiling fans, but maintaining consistency with industry practice would minimize test burden for all ceiling fan manufacturers. Though a load-cell based approach appears to be a potentially simpler method of estimating airflow efficiency, in industry, low-volume ceiling fans have historically been tested according to the air-velocity sensor based approach. High-volume large-diameter ceiling fans, on the other hand, have historically been tested according to the load-cell based approach. It also appears to be cost-prohibitive to scale up the air-velocity sensor based approach to the high-volume large-diameter ceiling fans currently on the market given the number of sensors that would be required to cover ceiling fans 24 feet in diameter and the cost of constructing an appropriate rotating sensor arm.

    DOE seeks comment and information on any alternative test methods that, consistent with EPCA requirements, would reduce the economic impact of the rule on small entities. DOE will consider the feasibility of such alternatives and determine whether they should be incorporated into the final rule.

    C. Review Under the Paperwork Reduction Act of 1995

    All collections of information from the public by a Federal agency must receive prior approval from OMB. DOE has established regulations for the certification and recordkeeping requirements for covered consumer products and industrial equipment. 10 CFR part 429, subpart B. Currently, the certification requirement for ceiling fans only addresses design standards.11 In an application to renew the OMB information collection approval for DOE's certification and recordkeeping requirements, DOE included an estimated burden for manufacturers of ceiling fans in case DOE ultimately issues a coverage determination and sets energy conservation standards for these products. OMB has approved the revised information collection for DOE's certification and recordkeeping requirements. 80 FR 5099 (January 30, 2015). DOE estimated that it will take each respondent approximately 30 hours total per company per year to comply with the certification and recordkeeping requirements based on 20 hours of technician/technical work and 10 hours clerical work to actually submit the Compliance and Certification Management System (CCMS) templates. This rulemaking would include recordkeeping requirements on manufacturers that are associated with executing and maintaining the test data for these products. DOE notes that the certification requirements would be established in a final rule establishing energy conservation standards for ceiling fans. DOE recognizes that recordkeeping burden may vary substantially based on company preferences and practices. DOE requests comment on this burden estimate.

    11 DOE collects fan performance information through its Compliance Certification Management System (CCMS) on behalf of the Federal Trade Commission (FTC); however, that data collection is covered under an OMB Control Number issued to FTC.

    D. Review Under the National Environmental Policy Act of 1969

    In this proposed rule, DOE proposes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for ceiling fans. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this proposed rule would amend the existing test procedures without affecting the amount, quality, or distribution of energy usage, and, therefore, would not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A5 under 10 CFR part 1021, subpart D, which applies to any rulemaking that interprets or amends an existing rule without changing the environmental effect of that rule. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

    E. Review Under Executive Order 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. (65 FR 13735 (Mar. 14, 2000)). DOE has examined this proposed rule and has tentatively determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

    F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Regarding the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and tentatively determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.

    G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)). The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. (62 FR 12820 (Mar. 18, 1997)). (This policy is also available at http://energy.gov/gc/office-general-counsel.) DOE examined this proposed rule according to UMRA and its statement of policy and has tentatively determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

    H. Review Under the Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

    I. Review Under Executive Order 12630

    Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 18, 1988), DOE has determined that this proposed regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

    J. Review Under Treasury and General Government Appropriations Act, 2001

    Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

    K. Review Under Executive Order 13211

    Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

    This regulatory action to amend the test procedure for measuring the energy efficiency of ceiling fans is not a significant regulatory action under Executive Order 12866 or any successor order. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects for this rulemaking.

    L. Review Under Section 32 of the Federal Energy Administration Act of 1974

    Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101 et seq.), DOE must comply with all laws applicable to the former Federal Energy Administration, including section 32 of the Federal Energy Administration Act of 1974 (Pub. L. 93-275), as amended by the Federal Energy Administration Authorization Act of 1977 (Pub. L. 95-70). (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the FTC concerning the impact of the commercial or industry standards on competition.

    This proposed rule would incorporate testing methods contained in the following commercial standard: ANSI/AMCA Standard 230-12, “Laboratory Methods of Testing Air Circulating Fans for Rating and Certification.” The Department has evaluated this standard and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA, (i.e., that it was developed in a manner that fully provides for public participation, comment, and review). DOE will consult with the Attorney General and the Chairman of the FTC concerning the impact on competition of requiring manufacturers to use the test methods contained in this standard prior to prescribing a final rule.

    M. Description of Material Incorporated by Reference

    In this SNOPR, DOE proposes to incorporate by reference the test standard published by ANSI/AMCA, titled “Air Movement and Control Association Laboratory Methods of Testing Air Circulating Fans for Rating and Certification,” ANSI/AMCA 230-12. ANSI/AMCA 230-12 is an industry accepted test standard that specifies test methods for ceiling fans with blade spans less than six feet (and other air circulating fans) and is applicable to products sold in North America. The test procedures proposed in this SNOPR reference ANSI/AMCA 230-12 for the test apparatus and instructions for testing ceiling fans, as specified in Section 3 (“Units of Measurement”), Section 4 (“Symbols and Subscripts”), Section 5 (“Definitions”), Section 6 (“Instruments and Methods of Measurement”), and Section 7 (“Equipment and Setups”) of ANSI/AMCA 230-12. ANSI/AMCA 230-12 is readily available on AMCA's Web site at http://www.amca.org/store/.

    DOE also proposes to incorporate by reference the test standard published by IEC, titled “Household electrical appliances—Measurement of standby power,” IEC 62301 (Edition 2.0). IEC 62301 is an industry accepted test standard that specifies methods for measuring the standby mode power of electrical products and is applicable to products sold in North America. The test procedures proposed in this SNOPR reference sections of IEC 62301 that address test conditions and procedures for measuring the standby mode power of ceiling fans capable of standby mode operation. IEC 62301 is readily available on IEC's Web site at http://webstore.iec.ch/.

    V. Public Participation A. Submission of Comments

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

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

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

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

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

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

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

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

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

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

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

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

    B. Issues on Which DOE Seeks Comment

    Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:

    1. Instead of specifically defining “air circulator” and exempting air circulators from the test procedure, DOE proposes to not subject a ceiling fan to the test procedure if the plane of rotation of the ceiling fan's blades cannot be within 45 degrees of horizontal. DOE requests comment on this approach.

    2. DOE seeks comment on its proposal to test high-volume small-diameter ceiling fans based on the low-volume ceiling fans test procedures proposed in the NOPR, with the distinction that high-volume small-diameter ceiling fans would be tested at only high speed.

    3. DOE seeks comment and any available data on average daily hours of use, fan speeds utilized, and fraction of time spent at each speed for high-volume small-diameter ceiling fans.

    4. DOE seeks comment on the percentage of high-volume small diameter ceiling fans that come with standby capability.

    5. DOE seeks comment on its proposal to mount all ceiling fans with blade spans less than or equal to seven feet to the real ceiling during testing.

    6. DOE seeks comment on its proposal to test all ceiling fans with blade spans greater than seven feet at five equally-spaced speeds, specifically 20%, 40%, 60%, 80% and 100% of maximum speed achievable. DOE also specifically seeks information on whether there are any ceiling fans with blade spans greater than seven feet for which the proposed test procedure in this SNOPR could not be applied (i.e., any ceiling fans larger than seven feet in diameter that could not achieve the five speeds specified).

    7. DOE seeks comment on the proposed daily hours of use for ceiling fans larger than seven feet in diameter.

    8. DOE seeks comment on its proposal to harmonize the test room dimensions for testing high-volume large-diameter ceiling fans with the dimensions expected to be set forth in an updated version of AMCA 230.

    VI. Approval of the Office of the Secretary

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

    List of Subjects 10 CFR Part 429

    Confidential business information, Energy conservation, Household appliances, Imports, Reporting and recordkeeping requirements.

    10 CFR Part 430

    Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.

    Issued in Washington, DC, on May 26, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

    For the reasons stated in the preamble, DOE proposes to amend parts 429 and 430 of Chapter II, Subchapter D of Title 10, Code of Federal Regulations, as set forth below:

    PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 429 continues to read as follows: Authority:

    42 U.S.C. 6291-6317.

    2. Section 429.32 is amended by revising paragraph (a) to read as follows:
    § 429.32 Ceiling fans.

    (a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of ceiling fan by testing, in conjuction with the following sampling provisions:

    (1) The requirements of § 429.11 are applicable to ceiling fans; and

    (2) For each basic model of ceiling fan selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

    (i) Any represented value of the efficiency or airflow shall be less than or equal to the lower of:

    (A) The mean of the sample, where:

    EP03JN15.004 And x is the sample mean; n is the number of samples; and xi is the ith sample; or

    (B) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.9, where:

    EP03JN15.005 And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90% one-tailed confidence interval with n-1 degrees of freedom (from Appendix A to this subpart); and

    (ii) Any represented value of the wattage shall be greater than or equal to the higher of:

    (A) The mean of the sample, where:

    EP03JN15.006 And x is the sample mean; n is the number of samples; and xi is the ith sample; or

    (B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.1, where:

    EP03JN15.007 And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from Appendix A to this subpart).
    PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS 3. The authority citation for part 430 continues to read as follows: Authority:

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

    4. Section 430.2 is amended by adding the definitions for “High-volume ceiling fan,” “Hugger ceiling fan,” “Low-volume ceiling fan,” “Multi-mount ceiling fan,” and “Standard ceiling fan” in alphabetical order to read as follows:
    § 430.2 Definitions.

    High-volume ceiling fan means a ceiling fan that:

    (1) Is greater than 7 feet in diameter; or

    (2) Has a blade thickness of less than 3.2 mm at the edge or a maximum tip speed that exceeds the threshold in the table in the definition of low-volume ceiling fan in this section and has a maximum airflow volume greater than 5,000 CFM.

    Hugger ceiling fan means a ceiling fan where the lowest point on the fan blades is no more than ten inches from the ceiling.

    Low-volume ceiling fan means a ceiling fan that:

    (1) Is less than or equal to 7 feet in diameter; and

    (2) Has a blade thickness greater than or equal to 3.2 mm at the edge and a maximum tip speed less than or equal to the limit in the table in this definition, or has a maximum airflow volume less than or equal to 5,000 CFM.

    Low-Volume Ceiling Fans, 7 Feet or Less in Diameter Airflow direction Thickness (t) of edges of blades mm inch Maximum speed at tip of blades m/s feet per minute Downward-only 4.8 > t ≥ 3.2 3/16 > t ≥ 1/8 16.3 3,200 Downward-only t ≥ 4.8 t ≥ 3/16 20.3 4,000 Reversible 4.8 > t ≥ 3.2 3/16 > t ≥ 1/8 12.2 2,400 Reversible t ≥ 4.8 t ≥ 3/16 16.3 3,200

    Multi-mount ceiling fan means a ceiling fan that can be mounted in both the standard and hugger ceiling fan configurations.

    Standard ceiling fan means a ceiling fan where the lowest point on the fan blades is more than ten inches from the ceiling.

    5. Section 430.3 is amended by: a. Adding paragraph (d)(20); and b. Removing in paragraph (p)(4), “and X to subpart B” and adding in its place, “U, and X to subpart B of this part”.

    The addition reads as follows:

    § 430.3 Materials incorporated by reference.

    (d) * * *

    (20) ANSI/AMCA 230-12 (“AMCA 230”), Air Movement and Control Association Laboratory Methods of Testing Air Circulating Fans for Rating and Certification, approved February 22, 2012, IBR approved for appendix U to subpart B of this part.

    6. Section 430.23 is amended by revising paragraph (w) to read as follows:
    § 430.23 Test procedures for the measurement of energy and water consumption.

    (w) Ceiling fans. The efficiency of a ceiling fan, expressed in cubic feet per minute per watt (CFM/watt), shall be measured in accordance with sections 2.3, 2.5, 2.6 and 3 of appendix U to this subpart.

    7. Appendix U to subpart B of part 430 is revised to read as follows: Appendix U to Subpart B of Part 430—Uniform Test Method for Measuring the Energy Consumption of Ceiling Fans

    Prior to [DATE 180 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], manufacturers must make any representations with respect to the energy use or efficiency of ceiling fans, except hugger ceiling fans, multi-mount ceiling fans in the hugger configuration, and high-volume ceiling fans, as defined in 10 CFR 430.2 in accordance with the results of testing pursuant to this appendix or the procedures in appendix U as it appeared at 10 CFR part 430, subpart B, appendix U, in the 10 CFR parts 200 to 499 edition revised as of January 1, 2015. On or after [DATE 180 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE], manufacturers of ceiling fans must make any representations with respect to energy use or efficiency in accordance with the results of testing pursuant to this appendix.

    1. Definitions:

    1.1. Airflow means the rate of air movement at a specific fan-speed setting expressed in cubic feet per minute (CFM).

    1.2. Ceiling fan efficiency means the ratio of the total airflow to the total power consumption, in units of cubic feet per minute per watt (CFM/W).

    1.3. High speed means the highest available ceiling fan speed.

    1.4. 20% speed means the ceiling fan speed at which the blade revolutions per minute (RPM) are measured to be 20% of the blade RPM measured at high speed.

    1.5. 40% speed means the ceiling fan speed at which the blade RPM are measured to be 40% of the blade RPM measured at high speed.

    1.6. 60% speed means the ceiling fan speed at which the blade RPM are measured to be 60% of the blade RPM measured at high speed.

    1.7. 80% speed means the ceiling fan speed at which the blade RPM are measured to be80% of the blade RPM measured at high speed.

    1.8. Low speed means the lowest available ceiling fan speed.

    1.9. Multi-head ceiling fan means a ceiling fan with more than one fan head, i.e., more than one set of rotating fan blades.

    1.10. Total airflow means the sum of the product of airflow and hours of operation at all tested speeds.

    2. General Instructions, Test Apparatus, and Test Measurement:

    General instructions apply to characterizing the energy performance of both low-volume and high-volume ceiling fans. The test apparatus and test measurement used to characterize energy performance depend on the ceiling fan's blade span and, if the blade span is less than or equal to seven feet, whether the ceiling fan is low-volume or high-volume. If the plane of rotation of a ceiling fan's blades is not less than or equal to 45 degrees from horizontal, or cannot be adjusted based on the manufacturer's specifications to be less than or equal to 45 degrees from horizontal, the ceiling fan is not subject to these test procedures.

    2.1. General instructions

    Record measurements at the resolution of the test instrumentation. Round off calculations to the same number of significant digits as the previous step. Round the final ceiling fan efficiency value to the nearest whole number as follows:

    2.1.1. A fractional number at or above the midpoint between the two consecutive whole numbers shall be rounded up to the higher of the two whole numbers; or

    2.1.2. A fractional number below the midpoint between the two consecutive whole numbers shall be rounded down to the lower of the two whole numbers.

    For multi-head ceiling fans, the effective blade span is the blade span of an individual fan head, if all fan heads are the same size. If the fan heads are of varying sizes, the effective blade span is the blade span of the largest fan head.

    2.2. Test apparatus for ceiling fans with a blade span less than or equal to seven feet:

    All instruments are to have tolerances within ±1% of reading, except for the air velocity sensors, which should have tolerances within ±5% of reading. Equipment is to be calibrated at least once a year to compensate for variation over time.

    2.2.1. Air Delivery Room Requirements

    The air delivery room dimensions are to be 20 ±0.75 ft. × 20 ±0.75 ft. with an 11 ±0.75 ft. high ceiling. The control room shall be constructed external to the air delivery room.

    The ceiling shall be constructed of sheet rock or stainless plate. The walls shall be of adequate thickness to maintain the specified temperature and humidity during the test. The paint used on the walls, as well as the wall material, must be of a type that minimizes absorption of humidity and that keeps the temperature of the room constant during the test (e.g., oil-based paint).

    The room shall have no ventilation other than an air conditioning and return system used to control the temperature and humidity of the room. The construction of the room must ensure consistent air circulation patterns within the room. Vents must have electronically-operated damper doors controllable from a switch outside of the testing room.

    2.2.2. Equipment Set-Up

    Hang the ceiling fan to be tested directly from the ceiling, according to the manufacturer's installation instructions. All standard and hugger ceiling fans shall be hung in the fan configuration that minimizes the distance between the ceiling and the fan blades. Multi-mount fans shall be hung and tested in two configurations: In the configuration that meets the definition of a standard ceiling fan, while minimizing the distance the ceiling and the lowest part of the fan blades; and in the configuration that meets the definition of a hugger ceiling fan, while minimizing the distance between the ceiling and the lowest part of the fan blades.

    With the ceiling fan installed, adjust the height of the air velocity sensors to ensure the vertical distance between the lowest point on the ceiling fan blades and the air velocity sensors is 43 inches.

    Either a rotating sensor arm or four fixed sensor arms can be used to take airflow measurements along four axes, labeled A-D. Axes A, B, C, and D are at 0, 90, 180, and 270 degree positions. Axes A-D can be designated either by using the four walls or four corners of the room. See Figure 1 of this appendix.

    EP03JN15.008

    The amount of exposed wiring must be minimized. All sensor lead wires must be stored under the floor, if possible.

    The sensors shall be placed at exactly 4-inch intervals along a sensor arm, starting with the first sensor at the point where the four axes intersect. Do not touch the actual sensor prior to testing. Enough sensors shall be used to record air delivery within a circle 8 inches larger in diameter than the blade span of the ceiling fan being tested. A proper experimental set-up is shown in Figure 2 of this appendix.

    EP03JN15.009

    Table 1 of this appendix shows the appropriate number of sensors needed per each of four axes (including the first sensor at the intersection of the axes) for each fan size.

    Table 1 to Appendix U to Subpart B of Part 430: Sensor Selection Guide Fan blade span *
  • (inches)
  • Number of
  • sensors
  • 36 6 42 7 44 7 48 7 52 8 54 8 56 8 60 9 72 10 * The fan sizes listed are intended simply to be illustrative and do not restrict which ceiling fan sizes can be tested.

    An RPM (revolutions per minute) meter, or tachometer, should be installed so that the RPM of the ceiling fan blades can be measured during testing.

    Use an RMS sensor capable of measuring power with an accuracy of ±1% to measure ceiling fan power consumption. Prior to testing, the test laboratory must verify the performance of the sensor and sensor software to be used during the test.

    2.2.3. Multi-Head Ceiling Fan Test Set-Up

    Multi-headed ceiling fans are to be hung from the ceiling such that one of the ceiling fan heads is directly over sensor 1 (i.e., at the intersection of axes A, B, C, and D). The distance between the lowest point on the fan blades of the centered fan head and the air velocity sensors is to be such that it is the same as for all other low-volume ceiling fans (see Figure 2 of this appendix). Switching on only the centered fan head, the airflow measurements are to be made in the same manner as for all other ceiling fans with blade spans less than or equal to seven feet. The power consumption measurements are to be made separately, with all fan heads on.

    2.2.4. Test Set-Up for Ceiling Fans with Airflow Not Directly Downward

    For ceiling fans where the airflow is not directly downward, the ceiling fan head is to be adjusted such that the airflow is as vertical as possible prior to testing. The distance between the lowest point on the blades and the air velocity sensors should be the same as for all other low-volume ceiling fans (43 inches). For ceiling fans where a fully vertical orientation of airflow cannot be achieved, the ceiling fan is to be oriented such that any remaining tilt is aligned along one of the four sensor axes. Instead of measuring the air velocity for only those sensors directly beneath the ceiling fan, the air velocity is to be measured at all sensors along that axis, as well as the axis oriented 180 degrees with respect to that axis. For example, if the tilt is oriented along axis A, air velocity measurements are to be taken for all sensors along the A-C axis. No measurements would need to be taken along the B-D axis in this case.

    2.3. Active mode test measurement for ceiling fans with blade spans less than or equal to seven feet.

    2.3.1. Test conditions to be followed when testing:

    • The temperature and humidity setting shall be 76 degrees ±2 degrees Fahrenheit and 50% ±5% relative humidity. These shall be held constant during the entire test process.

    • Allow the sensors to be turned on and the fan to run for 15 minutes at each fan speed/setting before taking readings.

    • If present, the ceiling fan light fixture is to be installed but turned off during testing.

    • If present, any heater is to be installed but turned off during testing.

    • The tests shall be conducted with the fan connected to a supply circuit with a voltage of (a) 120 V for fans rated on the nameplate from 105 to 125 V; and (b) 240 V for fans rated on the nameplate from 208 to 250 V. The test voltage shall not vary by more than ±1% during the tests.

    • The test shall be conducted with the fan connected to a supply circuit at the rated frequency.

    • Air conditioning vents shall be closed during testing.

    2.3.2. Airflow and Power Consumption Testing Procedure:

    Measure the airflow (CFM) and power consumption (watt) for low-volume ceiling fans at high and low speed. For high-volume ceiling fans with blade spans less than or equal to seven feet, measure the airflow and power consumption only at high speed.

    Step 1: Make sure the transformer power is off. Hang fan and connect wires as directed by manufacturer's wiring instructions. Note: Assemble fan prior to the test; lab personnel must follow the instructions provided by the fan manufacturer. The fan blade assembly shall be balanced in accordance with the manufacturer's instructions to avoid excessive vibration of the motor assembly (at any speed) during operation.

    Step 2: Adjust the height of the air-velocity sensors such that the lowest point on the fan blades is 43 inches above the height of the sensor heads.

    Step 3: Set the first sensor arm (if using four fixed arms) or single sensor arm (if using a single rotating arm) to the 0 degree Position (Axis A). If necessary, use marking as reference. If using a single rotating arm, adjust the sensor arm alignment until it is at the 0 degree position by remotely controlling the antenna rotator.

    Step 4: Set software up to read and record air velocity, expressed in feet per minute (FPM) in 1 second intervals. (Temperature does not need to be recorded in 1 second intervals.) Record current barometric pressure.

    Step 5: Allow test fan to run 15 minutes at rated voltage and at high speed. Turn off all environmental conditioning equipment entering the chamber (e.g., air conditioning), close all doors and vents, and wait an additional 3 minutes prior to starting test session.

    Step 6: Begin recording readings. Take 100 readings (100 seconds run-time) and save these data.

    Step 7: Similarly, take 100 readings (100 seconds run-time) for Axes B, C, and D; save these data as well. If using four fixed sensor arms, the readings for all sensor arms should be taken simultaneously.

    Step 8: Repeat steps 3 through 7 above on low fan speed for low-volume ceiling fans. Note: Ensure that temperature and humidity readings are held within the required tolerances for the duration of the test (all tested speeds). It may be helpful to turn on environmental conditioning equipment between test sessions to ready the room for the following speed test.

    Step 9: If testing a multi-mount ceiling fan, repeat steps 1 through 8 with the ceiling fan hung in the configuration (either hugger or standard) not already tested.

    If a multi-head ceiling fan includes more than one type of ceiling fan head, then test at least one of each unique type. A fan head with different construction that could affect air movement or power consumption, such as housing, blade pitch, or motor, would constitute a different type of fan head.

    Measure power input at a point that includes all power-consuming components of the ceiling fan (but without any attached light kit or heater energized). Measure power continuously at the rated voltage that represents normal operation over the time period for which the airflow test is conducted for each speed, and record the average value of the power measurement at that speed in watts (W).

    Measure ceiling fan power consumption simultaneously with the airflow test, except for multi-head ceiling fans. For multi-head ceiling fans, measure power consumption at each speed continuously for 100 seconds with all fan heads turned on, and record the average value at each speed in watts (W).

    2.4. Test apparatus for ceiling fans with blade spans greater than seven feet:

    The test apparatus and instructions for testing ceiling fans with blade spans greater than seven feet shall conform to the requirements specified in Section 3 (“Units of Measurement”), Section 4 (“Symbols and Subscripts”), Section 5 (“Definitions”), Section 6 (“Instruments and Methods of Measurement”), and Section 7 (“Equipment and Setups”) of the Air Movement and Control Association (AMCA) International's “AMCA 230: Laboratory Methods of Testing Air Circulating Fans for Rating and Certification,” February 22, 2012 (incorporated by reference, see § 430.3), with the following modifications:

    2.4.1. The test procedure is applicable to ceiling fans up to 24 feet in diameter.

    2.4.2. A “ceiling fan” is defined as in § 430.2.

    2.4.3. For all ceiling fans, the minimum distance between the ceiling and the blades of a ceiling fan being tested is 40% of the ceiling fan blade span.

    2.4.4. For all ceiling fans, the minimum distance between the floor and the blades of a ceiling fan being tested is the larger of: 1) 80% of the ceiling fan blade span, and 2) 15 feet.

    2.4.5. For all ceiling fans, the minimum distance between the centerline of a ceiling fan being tested and walls and/or large obstructions is 150% of the ceiling fan blade span.

    2.5. Active mode test measurement for ceiling fans with blade spans greater than seven feet:

    Calculate the airflow (CFM) and measure the power consumption (watt) for ceiling fans at high speed, 80% speed, 60% speed, 40% speed, and 20% speed. When testing at speeds other than high speed (i.e., X% speed where X is 80. 60, 40, or 20), ensure the average measured RPM corresponds to X% ± 1% of the average RPM at high speed (e.g., For testing at 80% speed, the average measured RPM should be between 79% and 81% of the average measured RPM during testing at high speed). If the average measured RPM falls outside of this tolerance, adjust the ceiling fan speed and repeat the test. Calculate the airflow and measure the power consumption in accordance with the test requirements specified in Section 8 (“Observations and Conduct of Test”) and Section 9 (“Calculations”) of AMCA 230 (incorporated by reference, see § 430.3), with the following modifications:

    2.5.1. Measure power consumption at a point that includes all power-consuming components of the ceiling fan (but without any attached light kit or heater energized).

    2.5.2. Measure power consumption continuously at the rated voltage that represents normal operation over the time period for which the load differential test is conducted.

    2.6. Test measurement for standby power consumption

    Standby power consumption must be measured for all ceiling fans that offer one or more of the following user-oriented or protective functions:

    • The ability to facilitate the activation or deactivation of other functions (including active mode) by remote switch (including remote control), internal sensor, or timer.

    • Continuous functions, including information or status displays (including clocks), or sensor-based functions.

    Standby power consumption must be measured after completion of active mode testing and after the active mode functionality has been switched off (i.e., the rotation of the ceiling fan blades is no longer energized). The ceiling fan must remain connected to the main power supply and be in the same configuration as in active mode (i.e., any ceiling fan light fixture should still be attached). Measure standby power consumption according to IEC 62301 (incorporated by reference, see § 430.3) with the following modifications:

    2.6.1. Allow 3 minutes between switching off active mode functionality and beginning the standby power test. (No additional time before measurement is required.)

    2.6.2. Measure power consumption continuously for 100 seconds, and record the average value of the standby power measurement in watts (W).

    3. Calculation of Ceiling Fan Efficiency from the Test Results:

    The efficacy of a ceiling fan is the ceiling fan efficiency (as defined in section 1 of this appendix). Two ceiling fan efficiencies will be calculated for low-volume multi-mount ceiling fans: One efficiency will correspond to the ceiling fan being mounted in the hugger configuration, and the other efficiency will correspond to the ceiling fan being mounted in the standard configuration.

    Using the airflow and power consumption measurements from section 2 (high and low speed for low-volume ceiling fans, only high speed for high-volume ceiling fans with blade spans less than or equal to seven feet) and section 3 (for all tested settings for ceiling fans with blade spans greater than seven feet) calculate the efficiency for any ceiling fan as follows:

    EP03JN15.010
    Where: CFMi = airflow at speed i, OHi = operating hours at speed i, Wi = power consumption at speed i, OHSb = operating hours in standby mode, and WSb = power consumption in standby mode.

    Table 2 of this appendix specifies the daily hours of operation to be used in calculating ceiling fan efficiency:

    Table 2 to Appendix U to Subpart B of Part 430: Daily Operating Hours for Calculating Ceiling Fan Efficiency No
  • standby
  • With
  • standby
  • Daily Operating Hours for Low-Volume Ceiling Fans High Speed 4.2 4.2 Low Speed 2.2 2.2 Standby Mode 0.0 17.6 Off Mode 17.6 0.0 Daily Operating Hours for High-Volume Ceiling Fans With Blade Spans Less Than or Equal to Seven Feet High Speed 12.0 12.0 Standby Mode 0.0 12.0 Off Mode 12.0 0.0 Daily Operating Hours for Ceiling Fans With Blade Spans Greater Than Seven Feet High Speed 1.8 1.8 80% Speed 3.5 3.5 60% Speed 3.6 3.6 40% Speed 2.0 2.0 20% Speed 4.1 4.1 Standby Mode 0.0 9.0 Off Mode 9.0 0.0

    The effective area corresponding to each sensor used in the test method for ceiling fans with blade spans less than or equal to seven feet is to be calculated with the following equations:

    For sensor 1, the sensor located directly underneath the center of the ceiling fan, the effective width of the circle is 2 inches, and the effective area is:

    EP03JN15.011

    For the sensors between sensor 1 and the last sensor used in the measurement, the effective area has a width of 4 inches. If a sensor is a distance d, in inches, from sensor 1, then the effective area is:

    EP03JN15.012

    For the last sensor, the width of the effective area depends on the horizontal displacement between the last sensor and the point on the ceiling fan blades furthest radially from the center of the fan. The total area included in an airflow calculation is the area of a circle 8 inches larger in diameter than the ceiling fan blade span.

    Therefore, for example, for a 42-inch ceiling fan, the last sensor is 3 inches beyond the end of the ceiling fan blades. Because only the area within 4 inches of the end of the ceiling fan blades is included in the airflow calculation, the effective width of the circle corresponding to the last sensor would be 3 inches. The calculation for the effective area corresponding to the last sensor would then be:

    EP03JN15.013

    For a 46-inch ceiling fan, the effective area of the last sensor would have a width of 5 inches, and the effective area would be:

    EP03JN15.014

    3.1.1. Ceiling fan efficiency calculations for multi-head ceiling fans

    To determine the airflow at a given speed for a multi-head ceiling fan, measure the airflow for each fan head. Repeat for each fan head. Testing of each fan head is not required if the fan heads are essentially identical (i.e., do not have differences in construction such as housing, blade pitch, or motor could affect air movement or power consumption); instead, the measurements for one fan head can be used for each essentially identical fan head. Sum the measured airflow for each fan head included in the ceiling fan. The power consumption is the measured power consumption with all fan heads on.

    Using the airflow and power consumption measurements from section 2 of this appendix, calculate ceiling fan efficiency for a multi-head ceiling fan as follows:

    EP03JN15.015 Where: CFMi = sum of airflow at a given speed for each head, OHi = operating hours at a given speed, Wi = total power consumption at a given speed, OHSb = operating hours in standby mode, and WSb = power consumption in standby mode.

    3.1.2. Ceiling fan efficiency calculations for ceiling fans with airflow not directly downward

    Using a set of sensors that cover the same diameter as if the airflow were directly downward, the airflow at each speed should be calculated based on the continuous set of sensors with the largest air velocity measurements. This continuous set of sensors should be along the axis that the ceiling fan tilt is directed in (and along the axis that is 180 degrees from the first axis). For example, a 42-inch fan tilted toward axis A may create the pattern of air velocity shown in Figure 3 of this appendix. As shown in Table 1 of this appendix, a 42-inch fan would normally require 7 active sensors. However because the fan is not directed downward, all sensors must record data. In this case, because the set of sensors corresponding to maximum air velocity are centered 3 sensor positions away from the sensor 1 along the A axis, substitute the air velocity at A axis sensor 4 for the average air velocity at sensor 1. Take the average of the air velocity at A axis sensors 3 and 5 as a substitute for the average air velocity at sensor 2, take the average of the air velocity at A axis sensors 2 and 6 as a substitute for the average air velocity at sensor 3, etc. Lastly, take the average of the air velocities at A axis sensor 10 and C axis sensor 4 as a substitute for the average air velocity at sensor 7. Any air velocity measurements made along the B-D axis are not included in the calculation of average air velocity.

    EP03JN15.016 [FR Doc. 2015-13169 Filed 6-2-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 734, 740, 750, 764, and 772 [Docket No. 141016858-5228-01] RIN 0694-AG32 Revisions to Definitions in the Export Administration Regulations AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule is part of the Administration's Export Control Reform Initiative. The Initiative will enhance U.S. national and economic security, facilitate compliance with export controls, update the controls, and reduce unnecessary regulatory burdens on U.S. exporters. As part of this effort, this rulemaking proposes revisions to the Export Administration Regulations (EAR) to include the definitions of “technology,” “required,” “peculiarly responsible,” “proscribed person,” “published,” results of “fundamental research,” “export,” “reexport,” “release,” “transfer,” and “transfer (in-country)” to enhance clarity and consistency with terms also found on the International Traffic in Arms Regulations (ITAR), which is administered by the Department of State, Directorate of Defense Trade Controls (DDTC). This rulemaking also proposes amendments to the Scope part of the EAR to update and clarify application of controls to electronically transmitted and stored technology and software. DDTC is concurrently publishing comparable proposed amendments to the ITAR's definitions of “technical data,” “required,” “peculiarly responsible,” “public domain,” results of “fundamental research,” “export,” “reexport,” “release,” and “retransfer” for the same reasons. Finally, this rulemaking proposes conforming changes to related provisions.

    DATES:

    Comments must be received by August 3, 2015.

    ADDRESSES:

    Comments may be submitted to the Federal rulemaking portal (http://www.regulations.gov). The regulations.gov ID for this proposed rule is: [BIS-2015-0019]. Comments may also be submitted via email to [email protected] or on paper to Regulatory Policy Division, Bureau of Industry and Security, Room 2099B, U.S. Department of Commerce, Washington, DC 20230. Please refer to RIN 0694-AG32 in all comments and in the subject line of email comments. All comments (including any personally identifying information) will be made available for public inspection and copying.

    FOR FURTHER INFORMATION CONTACT:

    Hillary Hess, Director, Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security at 202-482-2440 or [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    This proposed rule is part of the Administration's Export Control Reform (ECR) Initiative. The Initiative will enhance U.S. national and economic security, facilitate compliance with export controls, update the controls, and reduce unnecessary regulatory burdens on U.S. exporters. As part of this effort, this rulemaking proposes revisions to the Export Administration Regulations (EAR) to include the definitions of “technology,” “required,” “peculiarly responsible,” “proscribed person,” “published,” results of “fundamental research,” “export,” “reexport,” “release,” “transfer,” and “transfer (in-country)” to enhance clarity and ensure consistency with the International Traffic in Arms Regulations (ITAR), which is administered by the Department of State, Directorate of Defense Trade Controls (DDTC). This rulemaking also proposes amendments to the Scope part of the EAR to update and clarify application of controls to electronically transmitted and stored technology and software. The DDTC is concurrently publishing comparable proposed amendments to the ITAR's definitions of “technical data,” “required,” “peculiarly responsible,” “public domain,” results of “fundamental research,” “export,” “reexport,” “release,” and “retransfer” for the same reasons. Finally, this rulemaking proposes conforming changes to related provisions.

    One aspect of the ECR Initiative includes amending the export control regulations to facilitate enhanced compliance while reducing unnecessary regulatory burdens. For similar national security, foreign policy, including human rights, reasons, the EAR and the ITAR each control, inter alia, the export, reexport, and in-country transfer of commodities, products or articles, technology, technical data, software, and services to various destinations, end users, and end uses. The two sets of regulations have been issued pursuant to different statutes, have been administered by different agencies with missions that are distinct from one another in certain respects, and have covered different items (or articles). For those reasons, and because each set of regulations has evolved separately over decades without much coordination between the two agencies regarding their structure and content, they often use different words, or the same words differently, to accomplish similar regulatory objectives.

    Many parties are regulated by both the Commerce Department's EAR and the State Department's ITAR, particularly now that regulatory jurisdiction over many types of military items has been transferred from the ITAR to the EAR. Using common terms and common definitions to regulate the same types of items or actions is intended to facilitate enhanced compliance and reduce unnecessary regulatory burdens. Conversely, if different concerns between the two sets of export control regulations warrant different terms or different controls, then the differences should be clear for the same reason. Such clarity will benefit national security because it will be easier for exporters to know how to comply with the regulations and for prosecutors to be able to prosecute violations of the regulations. Such clarity will also enhance our economic security because it will reduce unnecessary regulatory burdens for exporters when attempting to determine the meaning of key words and phrases across similar sets of regulations. Finally, such harmonization and clarification is a necessary step toward accomplishing one of the ultimate objectives of the ECR initiative, which is the creation of a common export control list and common set of export control regulations.

    BIS and DDTC have identified a series of similar terms in the EAR and the ITAR that are defined differently and that warrant either harmonization or the creation of similar structures that would identify more clearly the differences in how similar concepts are treated under the EAR and the ITAR. The proposed revisions to these terms are generally not intended to materially increase or decrease their existing scope. In particular, BIS and DDTC will continue to maintain their long-standing positions that “published” (or “public domain”) information and the results of “fundamental research” are excluded from the scope of “technology” subject to the EAR and the ITAR's “technical data.” Rather, the proposed changes are designed to clarify and update BIS policies and practices with respect to the application of the terms and to allow for their structural harmonization with their counterparts in the ITAR.

    Harmonizing definitions does not mean making them identical. For example, under the EAR, technology may be “subject to” or “not subject to the EAR.” Technical data under the ITAR is subject to those regulations by definition. While the two terms have substantial commonality, they remain different terms used in different ways. This rulemaking proposes that, to the extent possible, similar definitions be harmonized both substantively and structurally. Substantive harmonization will mean using the same words for the same concepts across the two sets of regulations. Structural harmonization will mean setting forth similar definitions in a paragraph order that renders their similarities and differences clearly visible. This structural harmonization may require reserving certain paragraphs in an EAR definition if the corresponding paragraph does not exist in the ITAR definition, or vice versa.

    A side-by-side comparison on the regulatory text proposed by both Departments is available on both agencies' Web sites: www.pmddtc.state.gov and www.bis.doc.gov.

    Scope of the Export Administration Regulations

    An interim rule entitled “Export Administration Regulation; Simplification of Export Administration Regulations” (61 FR 12714) published March 25, 1996, established part 734, Scope of the Export Administration Regulations. The interim rule stated that part 734 “establishes the rules for determining whether commodities, software, technology, software, and activities of U.S. and foreign persons are subject to the EAR.” (61 FR at 12716) This rulemaking proposes to streamline and clarify part 734 while retaining its purpose and scope of control.

    Items Subject to the EAR

    Section 734.2, currently titled “Important EAR terms and principles,” contains two sets of important definitions: A definition and description of “subject to the EAR,” and definitions of export, reexport, and a number of associated terms. This rulemaking proposes to retitle the section “Subject to the EAR,” retain the definition and description of that term, and create separate sections in part 734 to define “export,” “reexport,” “release,” and “transfer (in-country),” which will be described in greater detail below. This rulemaking proposes to remove current § 734.2(b)(7) regarding the listing of foreign territories and possessions in the Commerce Country Chart (Supplement No. 1 to part 738) because it duplicates current § 738.3(b).

    Items Not Subject to the EAR

    Section 734.3(a) describes items (i.e., commodities, software, or technology) subject to the EAR. Paragraph (b) describes items that are not subject to the EAR. This rulemaking proposes minor revisions to paragraph (b)(3), which describes software and technology that is not subject to the EAR, to describe more fully educational and patent information that is not subject to the EAR, and to add a note to make explicit that information that is not “technology” as defined in the EAR is per se not subject to the EAR. These changes are part of an effort to make more clear throughout the EAR that “technology” is a subset of “information.” Only information that is within the scope of the definition of “technology” is subject to the EAR. If information of any sort is not within the scope of the definition of “technology,” then it is not subject to the EAR. This proposed rule makes no changes to the notes to paragraphs (b)(2) and (b)(3) that a printed book or other printed material setting forth encryption source code is not itself subject to the EAR, but that encryption source code in electronic form or media remains subject to the EAR. It also makes no changes to the note that publicly available encryption object code software classified under ECCN 5D002 is not subject to the EAR when the corresponding source code meets the criteria specified in § 740.13(e) of the EAR. (See proposed corresponding revisions to § 120.6(b) of the ITAR.)

    Published Technology and Software

    Current § 734.7 sets forth that technology and software is “published” and thus not subject to the EAR when it becomes generally accessible to the interested public in any form, including through publication, availability at libraries, patents, and distribution or presentation at open gatherings.

    This rulemaking proposes a definition of “published” with the same scope but a simpler structure. The proposed § 734.7(a) reads: “Except as set forth in paragraph (b), “technology” or “software” is “published” and is thus not “technology” or “software” subject to the EAR when it is not classified national security information and has been made available to the public without restrictions upon its further dissemination. This proposed definition is substantially the same as the wording of definitions adopted by the multilateral export control regimes of which the United States is a member: The Wassenaar Arrangement, Nuclear Suppliers Group, Missile Technology Control Regime, and Australia Group. The phrase “classified national security information” refers to information that has been classified in accordance with Executive Order 13526, 75 FR 707; 3 CFR 201 Comp., p. 298. The phrasing following the definition quoted above (“such as through”) means that the list that follows consists of representative examples taken from the list of such things that are in both the ITAR and the EAR and merged together. This is not an exhaustive list of published information. Section 734.7(b) keeps certain published encryption software subject to the EAR, a restriction currently found in § 734.7(c). BIS believes that the proposed revised section is easier to read and that the list of examples is easier to update than current text. The relevant restrictions do not include copyright protections or generic property rights in the underlying physical medium. (See proposed corresponding revisions to “public domain” in § 120.11 of the ITAR.)

    Fundamental Research

    The current § 734.8 excludes most information resulting from fundamental research from the scope of the EAR. The section is organized primarily by locus, specifically by the type of organization in which the research takes place. This proposed rule would revise § 734.8, but it is not intended to change the scope of the current § 734.8. The proposed revisions streamline the section by consolidating different provisions that involve the same criteria with respect to prepublication review, removing reference to locus unless it makes a difference to the jurisdictional status, and adding clarifying notes. The proposed revisions also consistently use the description “arises during or results from fundamental research” to make clear that technology that arises prior to a final result is subject to the EAR unless it otherwise meets the provisions of § 734.8. Comments regarding whether the streamlined § 734.8 text is narrower or broader in scope than the current text in § 734.8 are encouraged.

    Proposed notes clarify that technology initially transferred to researchers, e.g., by sponsors, may be subject to EAR, and that software and commodities are not “technology resulting from fundamental research.” Additional notes clarify when technology is “intended to be published,” as it must be in order to be not subject to the EAR pursuant to this section.

    Issued in 1985, National Security Decision Directive (NSDD)-189 established a definition of “fundamental research” that has been incorporated into numerous regulations, internal compliance regimes, and guidance documents. Therefore, in this rulemaking, BIS has proposed a definition of “fundamental research” that is identical to that in NSDD-189. However, BIS solicits comment on a simpler definition that is consistent with NSDD-189, but not identical. Specifically, the alternative definition would read: “`Fundamental research' means non-proprietary research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community.” BIS believes that the scope of this wording is the same as that of the wording in NSDD-189 and seeks comment on whether the final rule should adopt the simpler wording.

    The proposed definition of “fundamental research” includes references to “basic” and “applied” research. For clarity, this rulemaking proposes definitions of those terms. The definition of “basic research” in proposed § 734.8 is that currently defined in the EAR (§ 772.1), and in the Wassenaar Arrangement's General Technology Note as “basic scientific research.” The proposed definition of “applied research” was drawn from the Defense Federal Acquisition Regulation Supplement (48 CFR part 31.205-18). A possible alternative definition of applied research is that found in the 2014 Office of Management and Budget Circular A-11: “Systematic study to gain knowledge or understanding necessary to determine the means by which a recognized and specific need may be met.” (See proposed corresponding § 120.49 of the ITAR.)

    Educational Information

    Current § 734.9 states that educational information released by instruction in a catalog course or associated teaching laboratory of an academic institution is not subject to the EAR. This rulemaking proposes moving this exclusion to § 734.3(b) and removing § 734.9. This proposed rule is not intended to change the scope of the current § 734.9.

    Patents

    This rulemaking proposes to revise current § 734.10, “Patent applications,” for clarity. For example, instead of an internal cross-reference to the section of the EAR identifying items not subject to the EAR the revised section directly states that “technology” is not “subject to the EAR” if it is contained in the patent-related documents described in the section. For the sake of structural consistency with the ITAR's treatment of information in patents, paragraph (a)(1) is added to state that a patent or an open (published) patent application available from or at any patent office is per se not subject to EAR. The proposed revisions do not, however, change the scope of current § 734.10. The existing footnote to the current § 734.10 is removed because it would be redundant of the proposed text.

    Specific National Security Controls

    This rulemaking proposes minor conforming edits to current § 734.11, which describes specific national security controls. The proposed revisions do not change the scope of current § 734.11. As described below, this rulemaking proposes to remove Supplement No. 1 to part 734, “Questions and Answers—Technology and Software Subject to the EAR.” Questions and answers are illustrative rather than regulatory and are thus more appropriately posted as Web site guidance than published as regulatory text.

    Export

    In § 734.2(b) of the current EAR, there are definitions of export, export of technology or software, and export of encryption source code and object code software. Section 772.1 also defines “export” as follows: “Export means an actual shipment or transmission of items out of the United States.” This rulemaking proposes to consolidate the definitions of “export” and “export of technology and software,” while moving “export of encryption source code and object code software” to a new § 734.13.

    Proposed § 734.13(a) would have six paragraphs. Paragraphs (a)(4) and (5) would be reserved. The corresponding paragraphs in the ITAR would contain provisions that are not relevant to the EAR.

    Proposed paragraph (a)(1) of the definition of “export” uses the EAR terms “actual shipment or transmission out of the United States,” combined with the existing ITAR “sending or taking an item outside the United States in any manner.”

    Paragraph (a)(2), specifying the concept of transfer or release of technology to a foreign national in the United States, or “deemed export,” reflects the long-standing BIS practice of treating software source code as technology for deemed export purposes.

    Paragraph (a)(3) includes in the definition of “export” transferring by a person in the United States of registration, control, or ownership (i) of a spacecraft subject to the EAR that is not eligible for export under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country, or (ii) of any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country.

    Paragraphs (a)(4) and (a)(5) remain reserved, reflecting placeholders. The ITAR's parallel proposed provisions would control transfers to embassies within the United States and defense services. Neither topic is relevant to the EAR.

    Paragraph (a)(6) defines as an export the release or other transfer of the means of access to encrypted data. This is intended to complement the exclusion of certain encrypted data from the definition of export, specified in proposed § 734.18(a)(4) and discussed below. Logically, providing the means to decrypt or otherwise access controlled technology or software that is encrypted should constitute a controlled event to the same extent as releasing or otherwise transferring the unencrypted controlled technology or software itself. Upon transfer of the means of access to encrypted technology or software, the technology or software would acquire the classification and control status of the underlying technology or software, as specified in proposed § 764.2(l). The meaning of “clear text” in the proposed definition is no different than an industry standard definition, e.g., information or software that is readable without any additional processing and is not encrypted. Comments are encouraged regarding whether a specific EAR definition of the term is warranted and, if so, what the definition should be.

    Paragraph (a)(6) of export and paragraph (a)(4) of reexport in this proposed rule and the DDTC companion proposed rule present different formulations for this control and the agencies request input from the public on which text more clearly describes the control. The agencies intend, however, that the act of providing physical access to unsecured “technical data” (subject to the ITAR) will be a controlled event. The mere act of providing physical access to unsecured “technology” (subject to the EAR) will not, however, be a controlled event unless it is done with “knowledge” that such provision will cause or permit the transfer of controlled “technology” in clear text or “software” to a foreign national.

    This provision is not confined to the transfer of cryptographic keys. It includes release or other transfer of passwords, network access codes, software or any other information that the exporter “knows” would result in the unauthorized transfer of controlled technology. As defined in current § 772.1 of the EAR, “knowledge” includes not only positive knowledge that a circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence.

    Paragraph (b) of § 734.13 would retain BIS's deemed export rule as set forth in current § 734.2(b). It would also codify a long-standing BIS policy that when technology or source code is released to a foreign national, the export is “deemed” to occur to that person's most recent country of citizenship or permanent residency. See, e.g., 71 FR 30840 (May 31, 2006).

    Paragraph (c) would state that items that will transit through a country or countries or will be transshipped in a country or countries to a new country, or are intended for reexport to the new country are deemed to be destined to the new country. This provision would be moved without change from current § 734.2(b)(6).

    (See proposed corresponding revisions to § 120.17 of the ITAR.)

    Reexport

    The current definitions of reexport and reexport of technology or software in § 734.2(b) are shipment or transmission of items from one foreign country to another foreign country, and release of technology or source code to a foreign national “of another country.” This rulemaking proposes to move the definition of “reexports” to new § 734.14. In general, the provisions of the proposed definition of reexport parallel those of the proposed definition of export discussed above, except that reexports occur outside of the United States. Paragraphs (a)(1) and (a)(2) mirror the current definition but divide it into two paragraphs so that one paragraph pertains to actual reexports and another paragraph is specific to deemed reexports. Paragraph (a)(3) expands on the existing reference to transfer of registration or operational control over satellites in the definition of reexport in § 772.1 to include transferring by a person outside the United States of registration, control, or ownership (i) of a spacecraft subject to the EAR that is not eligible for reexport under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country, or (ii) of any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country. Paragraph (a)(4) mirrors the proposed addition in the definition of “export” of the concept that releasing or otherwise transferring, in this case, outside the United States, the means to transfer to a foreign national controlled technology or software in readable form constitutes a “reexport.” (See proposed corresponding § 120.19 of the ITAR.)

    Release

    This provision changes the existing definition of “release” in § 734.2(b)(3) and adds it to new § 734.15. Notably, while existing text provides that “visual inspection” by itself constitutes a release of technical data or source code, the proposed text provides that such inspection (including other types of inspection in addition to visual, such as aural or tactile) must actually reveal controlled technology or source code. Thus, for example, merely seeing an item briefly is not necessarily sufficient to constitute a release of the technology required, for example, to develop or produce it. This rulemaking proposes adding “written” to current “oral exchanges” as a means of release.

    The proposed text also clarifies that the application of “technology” and “software” is a “release” in situations where U.S. persons abroad use personal knowledge or technical experience acquired in the United States in a manner that reveals technology or software to foreign nationals. This clarification makes explicit a long-standing EAR interpretation. This provision complements proposed new § 120.9(a)(5) of the ITAR, which would include in the definition of “defense service” the furnishing of assistance (including training) to the government of a country listed in § 126.1 of the ITAR in the development, production, operation, installation, maintenance, repair, overhaul or refurbishing of a defense article or a part, component, accessory or attachment specially designed for a defense article. The proposed definition does not use the existing phrase “visual inspection by foreign nationals of U.S.-origin equipment and facilities” because such inspections do not per se release “technology.” For example, merely seeing equipment does not necessarily mean that the seer is able to glean any technology from it and, in any event, not all visible information pertaining to equipment is necessarily “technology” subject to the EAR. (See proposed corresponding § 120.50 of the ITAR.)

    Transfer (In-Country)

    The current definition of transfer (in-country) is the “shipment, transmission, or release of items subject to the EAR from one person to another person that occurs outside the United States within a single foreign country” (§ 772.1). There is no difference between this phrase and the phrase “in-country transfer” that is used in the EAR. Variations in the use of the term will be harmonized over time.

    This proposed rule would remove the definition from § 772.1 and add a revised definition to new § 734.16. This rulemaking proposes: “a transfer (in-country) is a change in end use or end user of an item within the same foreign country.” This revision eliminates any potential ambiguity regarding whether a change in end use or end user within a foreign country is or is not a “transfer (in-country).” This new text would parallel the term “retransfer” in the ITAR. (See proposed corresponding definition of retransfer in § 120.51 of the ITAR.)

    Export of Encryption Source Code and Object Code Software

    Proposed new § 734.17, export of encryption source code and object code software, would retain the text of § 734.2(b)(9). It would be moved to this section with only minor conforming and clarifying edits so that it is under the section of the regulations that would define when such an “export” occurs rather than under the existing “important EAR terms and principles.” Describing when an export occurs in the “export of encryption source code and object code software” section of the regulations is more clear than under a general “important EAR terms and principles” heading.

    Activities That Are Not Exports, Reexports, or Transfers

    Proposed new § 734.18 gathers existing EAR exclusions from exports, reexports, and transfers into a single provision, and includes an important new provision pertaining to encrypted technology and software.

    Paragraph (a)(1) reflects that by statute, launching a spacecraft, launch vehicle, payload, or other item into space is not an export. See 51 U.S.C. 50919(f).

    Paragraph (a)(2), based on existing text in § 734.2(b)(2)(ii), would state that the release in the United States of technology or software to U.S. nationals, permanent residents, or protected individuals is not an export.

    Paragraph (a)(3) would move from current § 734.2(b)(8) text stating that shipments between or among the states or possessions of the United States are not “exports” or “reexports.” The word “moving” and `transferring” were inserted next to “shipment” in order to avoid suggesting that the only way movement between or among the states or possessions would not be a controlled event was if they were “shipped.”

    Paragraph (a)(4) establishes a specific carve-out from the definition of “export” the transfer of technology and software that is encrypted in a manner described in the proposed section. Encrypted information—i.e., information that is not in “clear text”—is not readable, and is therefore useless to unauthorized parties unless and until it is decrypted. As a result, its transfer in encrypted form consistent with the requirements of paragraph (a)(4) poses no threat to national security or other reasons for control and does not constitute an “actual” transmission of “technology” or “software.” Currently, neither the EAR nor the ITAR makes any distinction between encrypted and unencrypted transfers of technology or software for control or definitional purposes.

    This section specifies the conditions under which this part of the definition would apply. An important requirement is that the technology or software be encrypted “end-to-end,” a phrase that is defined in paragraph (b). The intent of this requirement is that relevant technology or software is encrypted by the originator and remains encrypted (and thus not readable) until it is decrypted by its intended recipient. Such technology or software would remain encrypted at every point in transit or in storage after it was encrypted by the originator until it was decrypted by the recipient.

    BIS understands that end-to-end encryption is not used in all commercial situations, particularly when encryption is provided by third party digital service providers such as cloud SaaS (software as a service) providers and some email services. However, in many such situations, technology or software may be encrypted and decrypted many times before it is finally decrypted and read by the intended recipient. At these points, it is in clear text and is vulnerable to unauthorized release. BIS considered this an unacceptable risk and therefore specified the use of end-to-end encryption as part of the proposed definition. A key requirement of the end-to-end provision is to ensure that no non-US national employee of a domestic cloud service provider or foreign digital third party or cloud service provider can get access to controlled technology or software in unencrypted form.

    Paragraph (a)(4)(iii) describes encryption standards for purposes of the definition. In this proposed rule, use of encryption modules certified under the Federal Information Processing Standard 140-2 (FIPS 140-2), supplemented by appropriate software implementation, cryptographic key management and other procedures or controls that are in accordance with guidance provided in current U.S. National Institute for Standards and Technology publications, would qualify as sufficient security. FIPS 140-2 is a well understood cryptographic standard used for Federal Government procurement in the United States and Canada, as well as for many other uses, both in the United States and abroad. However, BIS understands that companies may use hardware and software that has not been certified by NIST or that does not conform to NIST guidelines (e.g., for internal use or conforming to other standards). To accommodate this, this paragraph allows for use of “similarly effective cryptographic means,” meaning that alternative approaches are allowable provided that they work. In such cases, the exporter is responsible for ensuring that they work. In contrast, the corresponding definition proposed by DDTC makes FIPS 140-2 conformity a baseline requirement. Hardware and software modules must be certified by NIST, and NIST key management and other implementation standards must be used. Alternatives are not permitted regardless of effectiveness.

    This paragraph also specifically excludes from the definition technology and software stored in countries in Country Group D:5 and Russia for foreign policy reasons in light of the embargoes and policies of presumptive denial now in place with respect to such countries.

    Logically, providing keys or other information that would allow access to encrypted technology or software should be subject to the same type of controls as the actual export, reexport, or transfer of the technology or software itself. This is specifically addressed in the proposed § 734.13(a)(6) as part of the definition of “export.” In addition, the proposed § 764.2(1) states that for enforcement purposes such an unauthorized release will constitute a violation to the same extent as a violation in connection with the actual export, reexport, or transfer (in-country) of the underlying “technology” or “software.”

    Paragraph (c) confirms that the mere ability to access “technology” or “software” while it is encrypted in a manner that satisfies the requirements in the section does not constitute the release or export of such “technology” or “software.” This responds to a common industry question on the issue. (See proposed corresponding § 120.52 of the ITAR.)

    Activities That Are Not Deemed Reexports

    Proposed § 734.20, activities that are not deemed reexports, merely codifies BIS's interagency-cleared Deemed Reexport Guidance posted on the BIS Web site dated October 31, 2013. This guidance was created so that the provisions regarding possible deemed reexports contained in §§ 124.16 and 126.18 of the ITAR would be available for EAR technology and source code.

    Under this guidance and new § 734.20, release of technology or source code by an entity outside the United States to a foreign national of a country other than the foreign country where the release takes place does not constitute a deemed reexport of such technology or source code if the entity is authorized to receive the technology or source code at issue, whether by a license, license exception, or situations where no license is required under the EAR for such technology or source code and the foreign national's most recent country of citizenship or permanent residency is that of a country to which export from the United States of the technology or source code at issue would be authorized by the EAR either under a license exception, or in situations where no license under the EAR would be required.

    Release of technology or source code by an entity outside the United States to a foreign national of a country other than the foreign country where the release takes place does not constitute a deemed reexport if: (i) The entity is authorized to receive the technology or source code at issue, whether by a license, license exception, or through situations where no license is required under the EAR; (ii) the foreign national is a bona fide regular and permanent employee (who is not a proscribed person under U.S. law) directly employed by the entity; (iii) such employee is a national exclusively of a country in Country Group A:5; and (iv) the release of technology or source code takes place entirely within the physical territory of any such country. This rulemaking also proposes a definition of “proscribed person” in § 772.1.

    This paragraph corresponds to § 124.16 of the ITAR, but the reference to Country Group A:5 instead of the countries in the corresponding ITAR section varies slightly. This variation is a function of BIS's national security and foreign policy assessment of the application of this proposed rule to the nationals of Country Group A:5 and as part of a general BIS effort to reduce the number of variations in groups of countries identified in the EAR consistent with U.S. national security and foreign policy interests. South Korea and Argentina are in Country Group A:5, but not in ITAR § 124.16. Malta, Albania, and Cyprus are in § 124.16, but not in Country Group A:5.

    For nationals other than those of Country Group A:5 countries, which are close military allies of the United States, other criteria may apply. In particular, the section specifies the situations in which the releases would not constitute deemed exports in a manner consistent with § 126.18 of the ITAR. An additional paragraph on scope of technology licenses included in the Web site would not be included in this proposed § 734.20. It would be included in proposed § 750.7, discussed below. For purposes of this section, “substantive contacts” would have the same meaning as it has in § 126.18 of the ITAR. The proposed phrase “permanent and regular employee” is a combination of BIS's definition of “permanent employee,” as set forth in a BIS advisory opinion issued on November 19, 2007, and the ITAR's definition of “regular employee” in § 120.39. This proposed rule adds specific text excluding persons proscribed under U.S. law to make clear that § 734.20 does not authorize release of technology to persons proscribed under U.S. law, such as those on the Entity List or the Specially Designated Nationals List, or persons denied export privileges, and defines “proscribed person” in § 772.1. The US-UK Exchange of Notes and US-Canadian Exchange of Letters referred to in the existing online guidance can be found on the State Department's Web site. The URL's for the letter are not proposed to be published in the EAR since URL addresses periodically change. Upon implementation of a final rule in this regard, BIS will place the URL references in an “FAQ” section of its Web site.

    Technology

    Like the current definition of “technology” in the EAR (§ 772.1), the definition proposed in this rulemaking is based on the Wassenaar Arrangement definition of technology. It continues to rest on the Wassenaar-defined sub-definitions of “development,” “production,” and “use,” which are currently defined in § 772.1 and which this rulemaking does not propose to change. This rulemaking also does not propose to change BIS's long-standing policy that all six activities in the definition of “use” (operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing) must be present for an item to be classified under an ECCN paragraph that uses “use” to describe the ”technology” controlled. See 71 FR 30842, May 31, 2006. The proposed definition includes, as does the current EAR definition, the terms “operation, installation, maintenance, repair, overhaul, or refurbishing (or other terms specified in ECCNs on the CCL that control `technology') of an item” because such words are used as to describe technology controlled in multiple ECCNs, often with “or” rather than the “and” found in “use.”

    This rulemaking proposes to incorporate the definitions of “technical data” and “technical assistance” into the definition of “technology” as illustrative lists. The note in the existing definition of “technology” that “technical assistance” “may take the forms such as instruction, skills training, working knowledge, and consulting services” is not repeated given that the proposed definition and its examples would include any “technology” in such circumstances and in a manner that is harmonized with the ITAR's definition of technical data.

    This rulemaking proposes to add a note to address a common industry question about modification. This proposed rule also would add three exclusions to clarify the limits of the scope of the definition in a manner consistent with long-standing BIS policy and interpretation of existing scope of “technology.” The first two insertions parallel exclusions in the ITAR and the third, the exclusion of telemetry data, mirrors specific exclusions inserted into both the ITAR and the EAR as part of recent changes regarding the scope of U.S. export controls pertaining to satellites and related items. See 79 FR 27417 (May 13, 2014). Several paragraphs of this section are held in reserve merely to allow the entire section to mirror the corresponding ITAR provisions that are not relevant to the EAR. (See proposed corresponding revisions to § 120.10 of the ITAR.)

    Questions and Answers—Technology and Software Subject to the EAR

    This rulemaking proposes to remove Supplement No. 1 to part 734, “Questions and Answers—Technology and Software Subject to the EAR.” Because the questions and answers are illustrative rather than regulatory, they are more appropriately posted as Web site guidance than included in the EAR.

    Required

    This proposed rule retains the existing EAR definition of “required” in § 772.1, but proposes adding notes clarifying the application of the term. It removes the references in the existing definition to CCL Categories 4, 5, 6, and 9 to avoid the suggestion that BIS applies the definition of “required” only to the uses of the term in these categories. BIS has never had a separate definition of “required” used elsewhere in the EAR and this removal merely eliminates a potential ambiguity and reflects long-standing BIS policy.

    To address common questions BIS has received regarding the meaning of the word “required,” BIS proposes adding two notes to address the questions. The first states that the references to “characteristics” and “functions” are not limited to entries on the CCL that use specific technical parameters to describe the scope of what is controlled. The “characteristics” and “functions” of an item listed are, absent a specific regulatory definition, a standard dictionary's definition of the item. It then includes examples of this point. The second refers to the fact that the ITAR and the EAR often divide within each set of regulations or between each set of regulations (a) controls on parts, components, accessories, attachments, and software and (b) controls on the end items, systems, equipment, or other articles into which those parts, components, accessories, attachments, and software are to be installed or incorporated. Moreover, with the exception of technical data specifically enumerated on the USML, the jurisdictional status of unclassified technical data or “technology” is the same as the jurisdictional status of the defense article or item to which it is directly related. Examples of this point are provided. (See proposed corresponding revisions to § 120.46 of the ITAR.)

    Peculiarly Responsible

    This rulemaking proposes a definition of the currently undefined term “peculiarly responsible” in order to respond to common industry questions. The new definition would be modeled on the catch-and-release structure BIS adopted for the definition of “specially designed.” Thus, under the proposed definition, an item is “peculiarly responsible” for achieving or exceeding any referenced controlled performance levels, characteristics, or functions if it is used in “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item subject to the EAR unless (a) the Department of Commerce has determined otherwise in a commodity classification determination, (b) it is identical to information used in or with a commodity or software that is or was in production and is EAR99 or described in an ECCN controlled only for Anti-Terrorism (AT) reasons, (c) it was or is being developed for use in or with general purpose commodities or software, or (d) it was or is being developed with “knowledge” that it would be for use in or with commodities or software described (i) in an ECCN controlled for AT-only reasons and also EAR99 commodities or software or (ii) exclusively for use in or with EAR99 commodities or software.

    Export of Technical Data for U.S. Persons Abroad

    This rulemaking proposes to amend the temporary export of technology provisions of existing License Exception TMP by revising § 740.9(a)(3) to clarify that the “U.S. employer” and “U.S. persons or their employees” using this license exception are not foreign subsidiaries. The proposed paragraph streamlines current text without changing the scope. (See proposed corresponding revisions to § 125.4(b)(9) of the ITAR.)

    Scope of a License

    This proposed revision would implement in the EAR the interagency-agreed boilerplate for all licenses that was posted on the BIS Web site and began appearing on licenses December 8, 2014. It is a slight revision to the existing § 750.7(a), which states that licenses authorize only the transaction(s) described in the license application and the license application support documents. This proposed revision would also codify the existing interpretation that a license authorizing the release of technology to an entity also authorizes the release of the same technology to the entity's foreign nationals who are permanent and regular employees of the entity's facility or facilities authorized on the license, except to the extent a license condition limits or prohibits the release of the technology to nationals of specific countries or country groups.

    Release of Protected Information

    This rulemaking proposes adding a new paragraph (l) to § 764.2 “Violations.” This paragraph would provide that the unauthorized release of decryption keys or other information that would allow access to particular controlled technology or software would, for enforcement purposes, constitute a violation to the same extent as a violation in connection with the export of the underlying controlled “technology” or “software.” Under these and other related provisions, the decryption keys (or other technology), while subject to the EAR, do not themselves retain the classification of the technology that they could potentially release. This allows them to be secured and transmitted independently of the technology they could be used to release. (See proposed corresponding revisions to § 127.1(b)(4) of the ITAR.)

    Removals From and Additions to EAR's List of Definitions in § 772.1

    With the changes proposed in this rulemaking, there would be stand-alone sections in the EAR to address the scope and meaning of “publicly available information,” “publicly available technology and software,” and “technical data.” To avoid redundancy, the existing definitions in § 772.1 would be removed. In light of the changes described above, the definitions of “basic scientific research,” “export,” “reexport,” “required,” “technology,” and “transfer” would be revised accordingly. A clarifying note would be added at the bottom of the definition that the use of “transfer” does not apply to the unrelated “transfers of licenses” provision in § 750.10 or the antiboycott provisions in Supplement No. 8 to part 760 of the EAR. It also states that the term “transfer” may also be included on licenses issued by BIS. In that regard, the changes that can be made to a BIS license are the non-material changes described in § 750.7(c). Any other change to a BIS license without authorization is a violation of the EAR. See §§ 750.7(c) and 764.2(e). Finally, consistent with the explanations above, definitions for the terms “applied research,” “fundamental research,” “peculiarly responsible,” “publicly available encryption software,” “published,” and “release” would be added to § 772.1.

    Public Comments

    BIS welcomes comments on any aspects of this proposed rule. With respect to the proposed revisions, BIS would like to receive comments that are as specific and well-supported as possible. Particularly helpful comments will include a description of a problem or concern, available data on cost or economic impact, and a proposed solution. BIS also welcomes comments on aspects of this proposed rule that the public considers effective or well designed.

    BIS specifically solicits comment on the following issues:

    1. Whether the revisions proposed in this rulemaking create gaps, overlaps, or contradictions between the EAR and the ITAR, or among various provisions within the EAR;

    2. Whether the alternative definition of fundamental research suggested in the preamble should be adopted;

    3. Whether the alternative definition of applied research suggested in the preamble should be adopted, or whether basic and applied research definitions are needed given that they are subsumed by fundamental research;

    4. Whether the questions and answers in existing Supplement No. 1 to part 734 proposed to be removed by this rulemaking have criteria that should be retained in part 734;

    5. With respect to end-to-end encryption described in the proposed revision of the definition of “Activities that are Not Exports, Reexports, or Transfers,” whether the illustrative standard proposed in the EAR rulemaking also should be adopted in the ITAR rulemaking; whether the safe harbor standard proposed in the ITAR rulemaking also should be adopted in the EAR rulemaking; or whether the two bodies of regulations should have different standards;

    6. Whether encryption standards adequately address data storage and transmission issues with respect to export controls; and

    7. Whether the proposed definition of “peculiarly responsible” effectively explains how items may be “required” or “specially designed” for particular functions.

    8. The public is asked to comment on the effective date of the final rule. Export Control Reform rules that revised categories of the USML and created new 600 series ECCNs have had a six-month delayed effective date to allow for exporters to update the classification of their items. In general, rules effecting export controls have been effective on the date of publication, due to the impact on national security and foreign policy. As this proposed rule, and the companion proposed rule from the Directorate of Defense Trade Controls, revise definitions within the ITAR and the EAR and do not make any changes to the USML or CCL, a 30-day delayed effective date is proposed to allow exporters to ensure continued compliance.

    Export Administration Act

    Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2014, 79 FR 46959 (August 11, 2014), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

    Regulatory Requirements

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

    2. This proposed rule does not contain information collections subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA). Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

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

    4. Pursuant to the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., BIS has prepared the following initial Regulatory Flexibility Act analysis of the potential impact that this proposed rule, if adopted, would have on small entities.

    Description of the Reasons Why Action Is Being Considered

    The policy reasons for issuing this proposed rule are discussed in the background section of the preamble of this document, and are not repeated here.

    Statement of the Objectives of, and Legal Basis for, the Proposed Rule; Identification of All Relevant Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule

    The objective of this proposed rule (and a proposed rule being published simultaneously by the Department of State) is to provide greater clarity and precision in the EAR and the ITAR by providing common definitions and common terms to regulate the same types of actions. The proposed rule also seeks to express some concepts more clearly.

    The proposed rule would alter definitions in the EAR. It also would update and clarify application of controls to electronically transmitted technology and software.

    The legal basis for this proposed rule is 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013); Notice of August 7, 2014, 79 FR 46959 (August 11, 2014); Notice of November 7, 2014, 79 FR 67035 (November 12, 2014).

    No other Federal rules duplicate, overlap, or conflict with this proposed rule.

    Number and Description of Small Entities Regulated by the Proposed Action

    This proposed rule would apply to all persons engaged in the export, reexport, or transfer of commodities, technology or software that is regulated by the EAR. BIS does not maintain data from which it can determine how many of those persons are small entities as identified in the Small Business Administration size standards. Nevertheless, BIS recognizes that some of those persons are likely to be small entities.

    Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule

    This proposed rule is unlikely to increase the number of transactions that must be reported to BIS because EAR reporting requirements apply only in five specific situations, none of which would change as a result of this proposed rule. Those situations are: Exports that do not require a license of items on the Wassenaar Arrangement Sensitive List; Exports of High Performance Computers; Exports of certain thermal imaging cameras that do not require a license; Certain exports of Conventional Arms; and 600 series major defense equipment.

    Because recordkeeping requirements already apply to all transactions that are subject to the EAR, BIS expects that this proposed rule would not expand recordkeeping requirements.

    It is possible that some of these changes would increase the number of licenses that some small entities would have to seek from BIS although BIS is not aware of any specific instance in which additional licenses would be required.

    The following discussion describes the changes that would be made by this proposed rule. It is divided into two sections: Changes that BIS believes would not impose any new regulatory obligations; and Changes that are not intended to imposed any new regulatory obligation, but that BIS cannot state with certainty would not do so.

    Changes That BIS Believes Would Not Impose Any New Regulatory Burden

    This proposed rule would make certain changes to clarify and streamline the definitions of comparable terms, phrases, and concepts between the EAR and the ITAR. Many of these changes are technical in nature and attempt to consolidate and re-phrase the definitions to enhance readability and to parallel the structure of the ITAR's definition of the same term. However, there are a small number of new provisions, but these changes would not impose any new regulatory burdens. Specifically, this proposed rule would make the following changes:

    Remove § 734.2(b) which currently defines export, reexport, release, transfer (in country) and export of encryption source code or object code software, because those terms would be defined in separate sections. Section 734.2(b) also states the policy of applying license requirements that apply to a country to its dependencies and possessions; this policy is currently stated elsewhere in the EAR.

    Create new separate sections defining export, reexport, release and export of encryption source code or object code software. Those terms would be clarified and presented in a more organized manner, but substantively unchanged from the existing regulatory text.

    Create a new section identifying activities that are not exports, reexports, or transfers. This section restates the transactions that are excluded from the definition of export in current regulatory text and adds two additional activities that would be expressly declared not to be exports, rexports or transfers: space launches and sending, taking or storing certain technology or software abroad using specified cryptographic techniques. The former, although not expressly in the current regulatory text, is required by statute (see 51 U.S.C. 50919(f)) and consistent with current BIS practice of not treating a space launch as an export, reexport or transfer. The latter is, in fact, new. However, by removing the transactions it describes from the definitions of exports, reexports, or transfers, it removes existing license requirements from those transactions.

    Clarify without substantively changing the provisions related to patent applications and add specific text stating that technology contained in a patent available from or at any patent office is not subject to the EAR. The addition reflects BIS' long-standing interpretation. To the extent that it could be characterized as new, its only effect would be to appear to release from the EAR technology that some readers of the EAR might have (erroneously) concluded was subject to the EAR.

    Add to License Exception TMP text to emphasize that foreign subsidiaries of U.S. companies are neither U.S. employers nor “U.S. persons or their employees” as those terms are used in the license exception. This additional text adds no restriction that is not already imposed by the definition of “U.S. persons” that currently appears in the text of License Exception TMP.

    Add text codifying in the EAR limits on transactions authorized by a license that currently are imposed by conditions on the license itself.

    Add text prohibiting the release or other transfer of information (e.g., decryption keys, passwords or access codes) with knowledge that such release or other transfer will result in an unauthorized export, reexport or transfer of other technology or software. This addition provides specific grounds for bringing charges with respect to one particular type of misconduct. However, existing EAR provisions, including the prohibition on causing, aiding or abetting a violation of the EAR or license, authorization or order could be used to bring charges for that same type of misconduct.

    Changes That Are Not Intended To Impose Any Regulatory Obligation, but That BIS Cannot State With Certainty Would Not Do So

    This proposed rule would add definitions for two new terms “applied research,” and “peculiarly responsible” and revise the definitions of two existing terms “required” and “transfer (in-country).” It also would adopt BIS' interpretative guidance regarding deemed reexports as regulatory text. These changes are not intended to impose any regulatory obligations on regulated entities, but BIS cannot state with certainty that there will be no impact. This proposed rule would make the following changes:

    Add to the existing definition of “fundamental research” a new definition of “applied research.” The information arising from fundamental research is not subject to the EAR. Fundamental research consists of basic and applied research where the results are ordinarily published and shared broadly within the scientific community. This proposed rule would retain the overall concept of fundamental research that is currently in the EAR, but would remove certain limitations based on the type of institution in which the research takes place, relocate the definition of “basic research” from the definitions section of the EAR to the section dealing with fundamental research and provide a definition of applied research.

    Add to the EAR a definition of the term “peculiarly responsible.” That currently undefined term appears in the definitions of “specially designed” and of “required” in the EAR. This proposed rule would define that term.

    Add to the EAR a definition of “proscribed person.” This definition does not create any new regulated class. It simply provides a clear, shorthand reference to a person who is already prohibited from receiving items or participating in a transaction that is subject to the EAR without authorization by virtue of U.S. law, such as persons on the Entity List, Specially Designated Nationals, or debarred parties.

    Remove from the definition of the term “required” references to CCL Categories 4, 5, 6 and 9 to accurately reflect BIS' long-standing interpretation that its definition applies wherever the EAR imposes a license requirement for technology “required” for a particular process or activity.

    In the definition of “transfer (in-country),” replace the phrase “shipment, transmission, or release of items subject to the EAR from one person to another person that occurs outside the United States within a single foreign country” with “a change in end use or end user of an item within the same foreign country.” This new text would parallel the term “retransfer” in the ITAR and would eliminate any potential ambiguity that a change in end use or end user within a foreign country is or is not a “transfer (in-country).”

    Each of the foregoing changes would serve the overall policy goals of reducing uncertainty and harmonizing the requirements of the ITAR and the EAR. In most instances, reduced uncertainty will be beneficial to persons who have to comply with the regulations, particularly persons who engage in transactions subject to both sets of regulations. They would be able to make decisions more quickly and have less need to contact BIS for advice. Additionally, by making these terms more explicit, the possibility of their being interpreted contrary to BIS' intent is reduced. Such contrary interpretations would have three undesirable effects. First, they would undermine the national security and foreign policy objectives that the EAR are intended to implement. Second, persons who are interpreting the regulations in a less restrictive manner than BIS intends may seek fewer licenses from BIS than their competitors who are interpreting the regulations consistent with BIS' intent or who are obtaining advice from BIS, thereby gaining a commercial advantage to the detriment of the relevant national security or foreign policy interests. Third, unnecessary regulatory complexity and unnecessary differences between the terminology of the ITAR and that of the EAR could discourage small entities from even attempting to export. The beneficial effects of making these terms more explicit justify any economic impact that might be incurred by small entities that would have to change their conduct because their contrary interpretations could no longer be defended given the clearer and more explicit terms in the regulations.

    This proposed rule also would add to the EAR a description of activities that are not deemed reexports. This description currently appears as interpretative guidance on BIS' Web site and closely tracks the regulatory text of the ITAR. Deemed reexports are releases of technology or software source code within a single foreign country by a party located outside the United States to a national of a country other than the country in which the releasing party is located. The guidance describes three situations in which that party may release the technology or source code without obtaining a license from BIS.

    By adopting this guidance as regulatory text that closely tracks the text governing the same activities in the ITAR, BIS reduces both complexity and unnecessary differences between the two sets of regulations with the salutary effects of faster decision making, reduced need to contact BIS for advice and reduced possibility that small entities would be discouraged from exporting as noted above.

    Description of Any Significant Alternatives to the Proposed Rule That Accomplish the Stated Objectives of Applicable Statutes and That Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities

    As required by 5 U.S.C. 603(c), BIS' analysis considered significant alternatives. Those alternatives are: (1) The preferred alternative of altering definitions and updating and clarifying application of controls to electronically transmitted technology and software; (2) Maintaining the status quo and not revising the definitions or updating and clarifying application of controls to electronically transmitted technology and software; and (3) Establishing a size threshold below which entities would not be subject to the changes proposed by this rulemaking.

    By altering definitions and updating and clarifying application of controls to electronically transmitted technology and software as this proposed rule would do, BIS would be reducing uncertainty for all parties engaged in transactions that are subject to the EAR. Potential ambiguities would be reduced; decisions could be made more quickly; the need to contact BIS for advice be reduced; and the possibility of inconsistent interpretations providing one party commercial advantages over others would be reduced. Persons (including small entities) engaged in transactions that are subject to the ITAR and transactions that are subject to the EAR would face fewer actual or apparent inconsistencies that must be addressed in their regulatory compliance programs. Although small entities, along with all other parties, would need to become familiar with the revised terminology, in the long run, compliance costs are likely to be reduced when compared to the present situation where the ITAR and the EAR use different terminology to regulate the same types of activity in the same manner. Therefore, BIS adopted this alternative.

    If BIS chose to maintain the status quo, small entities and other parties would not have to incur the cost and effort of becoming familiar with the revised regulations and any party who is currently interpreting the regulations that would clearly be precluded by the more explicit interpretations would incur the cost of complying with the regulations consistent with their underlying intent and in the way that BIS believes most regulated parties do. However, the benefits of these proposed changes would be lost. Those benefits, greater clarity, consistency between the ITAR and the EAR, and reduced possibility of inconsistent application of the regulations by similarly situated regulated parties, would be foregone. Therefore, BIS has not adopted this alternative.

    If BIS chose to create a size threshold exempting small entities as currently defined by the SBA size standards from the changes imposed by this proposed rule, those entities would face a more complicated regulatory environment than larger entities. The small entities would continue to be subject to the EAR as a whole but without the benefit of the clarifications introduced by this proposed rule. The only way to make a size threshold beneficial to entities falling below the threshold would be to exempt them from all or at least many of the requirements of the EAR. However, doing so would create a major loophole allowing commodities, software, and technology that are controlled for export for national security or foreign policy reasons to go, without restriction, to any party abroad, undermining the interests that the regulations are intended to protect. Therefore, BIS has not adopted this alternative.

    List of Subjects 15 CFR Parts 734 and 772

    Exports.

    15 CFR Parts 740 and 750

    Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.

    15 CFR Part 764

    Administrative practice and procedure, Exports, Law enforcement, Penalties.

    For the reasons stated in the preamble, parts 734, 740, 750, 764, and 772 of the Export Administration Regulations (15 CFR subchapter C) are proposed to be amended as follows:

    PART 734—SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS 1. The authority citation for part 734 continues to read as follows: Authority:

    50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013); Notice of August 7, 2014, 79 FR 46959 (August 11, 2014) ; Notice of November 7, 2014, 79 FR 67035 (November 12, 2014).

    § 734.2—[Amended]
    2. Section 734.2 is amended by revising the heading to read as follows and by removing and reserving paragraph (b).
    § 734.2 Subject to the EAR.
    3. Section 734.3 is amended by revising paragraph (b) introductory text, paragraph (b)(3), the Note to paragraphs (b)(2) and (b)(3), and the Note to paragraph (b)(3) to read as follows.
    § 734.3 Items subject to the EAR.

    (b) The following are not subject to the EAR:

    (3) Information and “software” that:

    (i) Are “published,” as described in § 734.7;

    (ii) Arise during, or result from, “fundamental research,” as described in § 734.8;

    (iii) Concern general scientific, mathematical, or engineering principles commonly taught in schools, and released by instruction in a catalog course or associated teaching laboratory of an academic institution; or

    (iv) Appear in patents or open (published) patent applications available from or at any patent office, unless covered by an invention secrecy order, or are otherwise patent information as described in § 734.10.

    Note to paragraphs (b)(2) and (b)(3):

    A printed book or other printed material setting forth encryption source code is not itself subject to the EAR (see § 734.3(b)(2)). However, notwithstanding § 734.3(b)(2), encryption source code in electronic form or media (e.g., computer diskette or CD ROM) remains subject to the EAR (see § 734.17)). Publicly available encryption object code software classified under ECCN 5D002 is not subject to the EAR when the corresponding source code meets the criteria specified in § 740.13(e) of the EAR.

    Note to paragraph (b)(3):

    Except as set forth in part 760 of this title, information that is not within the scope of the definition of “technology” (see § 772.1 of the EAR) is not subject to the EAR.

    4. Section 734.7 is revised to read as follows:
    § 734.7 Published.

    (a) Except as set forth in paragraph (b) of this section, unclassified “technology” or “software” is “published,” and is thus not “technology” or “software” subject to the EAR, when it has been made available to the public without restrictions upon its further dissemination such as through any of the following:

    (1) Subscriptions available without restriction to any individual who desires to obtain or purchase the published information;

    (2) Libraries or other public collections that are open and available to the public, and from which the public can obtain tangible or intangible documents;

    (3) Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public;

    (4) Public dissemination (i.e., unlimited distribution) in any form (e.g., not necessarily in published form), including posting on the Internet on sites available to the public; or

    (5) Submission of a written composition, manuscript or presentation to domestic or foreign co-authors, editors, or reviewers of journals, magazines, newspapers or trade publications, or to organizers of open conferences or other open gatherings, with the intention that the compositions, manuscripts, or publications will be made publicly available if accepted for publication or presentation.

    (b) Published encryption software classified under ECCN 5D002 remains subject to the EAR unless it is publicly available encryption object code software classified under ECCN 5D002 and the corresponding source code meets the criteria specified in § 740.13(e) of the EAR.

    5. Section 734.8 is revised to read as follows:
    § 734.8 “Technology” that arises during, or results from, fundamental research.

    (a) “Technology” that arises during, or results from, fundamental research and is `intended to be published' is thus not “subject to the EAR.”

    Note 1 to paragraph (a):

    The inputs used to conduct fundamental research, such as information, equipment, or software, are not “technology that arises during or results from fundamental research” except to the extent that such inputs are “technology” that arose during or resulted from earlier fundamental research.

    Note 2 to paragraph (a):

    There are instances in the conduct of research, whether fundamental, basic, or applied, where a researcher, institution or company may decide to restrict or protect the release or publication of “technology” contained in research results. Once a decision is made to maintain such “technology” as restricted or proprietary, the “technology,” if within the scope of § 734.3(a), becomes “subject to the EAR.”

    (b) Prepublication review. “Technology” that arises during, or results, from fundamental research is “intended to be published” to the extent that the researchers are free to publish the technology contained in the research without restriction or delay. “Technology” that arises during or results from fundamental research subject to prepublication review is still “intended to be published” when:

    (1) Prepublication review is conducted solely to ensure that publication would not compromise patent rights, so long as the review causes no more than a temporary delay in publication of the research results;

    (2) Prepublication review is conducted by a sponsor of research solely to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers; or

    (3) With respect to research conducted by scientists or engineers working for a Federal agency or a Federally Funded Research and Development Center (FFRDC), within any appropriate system devised by the agency or the FFRDC to control the release of information by such scientists and engineers.

    Note 1 to paragraph (b):

    Although “technology” arising during or resulting from fundamental research is not considered “intended to be published” if researchers accept restrictions on its publication, such “technology” will nonetheless qualify as “technology” arising during or resulting from fundamental research once all such restrictions have expired or have been removed.

    Note 2 to paragraph (b):

    Except as provided in § 734.11, “technology” that is subject to other publication restrictions, such as U.S. government-imposed access and dissemination controls, is not “intended to be published.”

    (c) Fundamental research definition. “Fundamental research” means basic or applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community. This is distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

    (1) “Basic research” means experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective.

    (2) “Applied research” means the effort that:

    (i) Normally follows basic research, but may not be severable from the related basic research;

    (ii) Attempts to determine and exploit the potential of scientific discoveries or improvements in technology, materials, processes, methods, devices, or techniques; and

    (iii) Attempts to advance the state of the art.

    § 734.9 [Removed and Reserved]
    6. Section 734.9 is removed and reserved. 7. Section 734.10 is revised to read as follows:
    § 734.10 Patents.

    “Technology” is not “subject to the EAR” if it is contained in:

    (a) A patent or an open (published) patent application available from or at any patent office;

    (b) A published patent or patent application prepared wholly from foreign-origin technology where the application is being sent to the foreign inventor to be executed and returned to the United States for subsequent filing in the U.S. Patent and Trademark Office;

    (c) A patent application, or an amendment, modification, supplement or division of an application, and authorized for filing in a foreign country in accordance with the regulations of the Patent and Trademark Office, 37 CFR part 5; or

    (d) A patent application when sent to a foreign country before or within six months after the filing of a United States patent application for the purpose of obtaining the signature of an inventor who was in the United States when the invention was made or who is a co-inventor with a person residing in the United States.

    8. Section 734.11 is revised to read as follows:
    § 734.11 Government-sponsored research covered by contract controls.

    (a) If research is funded by the U.S. Government, and specific national security controls are agreed on to protect information resulting from the research, the provisions of § 734.3(b)(3) will not apply to any export or reexport of such information in violation of such controls. However, any export or reexport of information resulting from the research that is consistent with the specific national security controls may nonetheless be made under this provision.

    (b) Examples of “specific national security controls” include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research. A general reference to one or more export control laws or regulations or a general reminder that the Government retains the right to classify is not a “specific national security control.”

    9. Section 734.13 is added to read as follows:
    § 734.13 Export.

    (a) Except as set forth in § 734.17, “export” means:

    (1) An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner;

    (2) Releasing or otherwise transferring “technology” or “source code” (but not “object code”) to a foreign national in the United States (a “deemed export”);

    (3) Transferring by a person in the United States of registration, control, or ownership of:

    (i) A spacecraft subject to the EAR that is not eligible for export under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or

    (ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country; or

    (4) [Reserved]

    (5) [Reserved]

    (6) Releasing or otherwise transferring decryption keys, network access codes, passwords, “software” or other information with “knowledge” that such provision will cause or permit the transfer of other “technology” in clear text or “software” to a foreign national.

    (b) Any release in the United States of “technology” or “source code” to a foreign national is a deemed export to the foreign national's most recent country of citizenship or permanent residency.

    (c) The export of an item that will transit through a country or countries or will be transshipped in a country or countries to a new country, or are intended for reexport to the new country, is deemed to be an export to the new country.

    10. Section 734.14 is added to read as follows:
    § 734.14 Reexport.

    (a) Except as set forth in §§ 734.18 and 734.20, “reexport” means:

    (1) An actual shipment or transmission of an item from one foreign country to another foreign country, including the sending or taking of an item to or from such countries in any manner;

    (2) Releasing or otherwise transferring “technology” or “source code” to a foreign national of a country other than the foreign country where the release or transfer takes place (a “deemed reexport”);

    (3) Transferring by a person outside the United States of registration, control, or ownership of:

    (i) A spacecraft subject to the EAR that is not eligible for reexport under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or

    (ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country; or

    (4) Releasing or otherwise transferring outside of the United States decryption keys, network access codes, passwords, “software,” or other information with “knowledge” that such provision will cause or permit the transfer of other “technology” in clear text or “software” to a foreign national.

    (b) Any release outside of the United States of “technology” or “source code” subject to the EAR to a foreign national of another country is a deemed reexport to the foreign national's most recent country of citizenship or permanent residency, except as described in § 734.20.

    (c) The reexport of an item subject to the EAR that will transit through a country or countries or will be transshipped in a country or countries to a new country, or are intended for reexport to the new country, is deemed to be a reexport to the new country.

    11. Section 734.15 is added to read as follows:
    § 734.15 Release.

    (a) Except as set forth in § 734.18, “technology” and “software” are “released” through:

    (1) Visual or other inspection by a foreign national of items that reveals “technology” or “source code” subject to the EAR to a foreign national;

    (2) Oral or written exchanges with a foreign national of “technology” in the United States or abroad; or

    (3) The application by U.S. persons of “technology” or “software” to situations abroad using personal knowledge or technical experience acquired in the United States, to the extent that the application reveals to a foreign national “technology” or “source code” subject to the EAR.

    (b) [Reserved]

    12. Section 734.16 is added to read as follows:
    § 734.16 Transfer (in-country).

    Except as set forth in § 734.18, a transfer (in-country) is a change in end use or end user of an item within the same foreign country. “Transfer (in-country)” is synonymous with “in-country transfer.”

    13. Section 734.17 is added to read as follows:
    § 734.17 Export of encryption source code and object code software.

    (a) For purposes of the EAR, the export of encryption source code and object code software means:

    (1) An actual shipment, transfer, or transmission out of the United States (see also paragraph (b) of this section); or

    (2) A transfer of such software in the United States to an embassy or affiliate of a foreign country.

    (b) The export of encryption source code and object code software controlled for “EI” reasons under ECCN 5D002 on the Commerce Control List (see Supplement No. 1 to part 774 of the EAR) includes:

    (1) Downloading, or causing the downloading of, such software to locations (including electronic bulletin boards, Internet file transfer protocol, and World Wide Web sites) outside the U.S., or

    (2) Making such software available for transfer outside the United States, over wire, cable, radio, electromagnetic, photo optical, photoelectric or other comparable communications facilities accessible to persons outside the United States, including transfers from electronic bulletin boards, Internet file transfer protocol and World Wide Web sites, unless the person making the software available takes precautions adequate to prevent unauthorized transfer of such code. See § 740.13(e) of the EAR for notification requirements for exports or reexports of encryption source code software considered to be publicly available or published consistent with the provisions of § 734.3(b)(3). Publicly available encryption software in object code that corresponds to encryption source code made eligible for License Exception TSU under § 740.13(e) of this subchapter is not subject to the EAR.

    (c) Subject to the General Prohibitions described in part 736 of the EAR, such precautions for Internet transfers of products eligible for export under § 740.17(b)(2) of the EAR (encryption software products, certain encryption source code and general purpose encryption toolkits) shall include such measures as:

    (1) The access control system, either through automated means or human intervention, checks the address of every system outside of the U.S. or Canada requesting or receiving a transfer and verifies such systems do not have a domain name or Internet address of a foreign government end-user (e.g., “.gov,” “.gouv,” “.mil” or similar addresses);

    (2) The access control system provides every requesting or receiving party with notice that the transfer includes or would include cryptographic software subject to export controls under the Export Administration Regulations, and anyone receiving such a transfer cannot export the software without a license or other authorization; and

    (3) Every party requesting or receiving a transfer of such software must acknowledge affirmatively that the software is not intended for use by a government end user, as defined in part 772 of the EAR, and he or she understands the cryptographic software is subject to export controls under the Export Administration Regulations and anyone receiving the transfer cannot export the software without a license or other authorization. BIS will consider acknowledgments in electronic form provided they are adequate to assure legal undertakings similar to written acknowledgments.

    14. Section 734.18 is added to read as follows:
    § 734.18 Activities that are not exports, reexports, or transfers.

    (a) The following activities are not exports, reexports, or transfers:

    (1) Launching a spacecraft, launch vehicle, payload, or other item into space.

    (2) While in the United States, releasing technology or software to United States citizens, persons lawfully admitted for permanent residence in the United States, or persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)).

    (3) Shipping, moving, or transferring items between or among the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Commonwealth of the Northern Mariana Islands or any territory, dependency, or possession of the United States as listed in Schedule C, Classification Codes and Descriptions for U.S. Export Statistics, issued by the Bureau of the Census.

    (4) Sending, taking, or storing technology or software that is:

    (i) Unclassified;

    (ii) Secured using end-to-end encryption;

    (iii) Secured using cryptographic modules (hardware or software) compliant with Federal Information Processing Standards Publication 140-2 (FIPS 140-2) or its successors, supplemented by software implementation, cryptographic key management and other procedures and controls that are in accordance with guidance provided in current U.S. National Institute for Standards and Technology publications, or other similarly effective cryptographic means; and

    (iv) Not stored in a country listed in Country Group D:5 (see Supplement No. 1 to part 740 of the EAR) or in the Russian Federation.

    (b) Definitions. For purposes of this section, `end-to-end encryption' means the provision of uninterrupted cryptographic protection of data between an originator and an intended recipient, including between an individual and himself or herself. It involves encrypting data by the originating party and keeping that data encrypted except by the intended recipient, where the means to access the data in unencrypted form is not given to any third party, including to any Internet service provider, application service provider or cloud service provider.

    (c) The ability to access “technology” or “software” in encrypted form that satisfies the criteria set forth in paragraph (a)(4) of this section does not constitute the release or export of such “technology” or “software.”

    Note to § 734.18:

    Releasing “technology” or “software” to any person with knowledge that a violation will occur is prohibited by § 736.2(b)(10) of the EAR.

    § 734.19 [Reserved]
    15. Section 734.19 is reserved. 16. Section 734.20 is added to read as follows:
    § 734.20 Activities that are not “deemed reexports.”

    (a) Release of “technology” or “source code” by an entity outside the United States to a foreign national of a country other than the foreign country where the release takes place does not constitute a deemed reexport of such “technology” or “source code” if:

    (1) The entity is authorized to receive the “technology” or “source code” at issue, whether by a license, license exception, or situations where no license is required under the EAR for such “technology” or “source code;” and

    (2) The entity is certain that the foreign national's most recent country of citizenship or permanent residency is that of a country to which export from the United States of the “technology” or “source code” at issue would be authorized by the EAR either under a license exception, or in situations where no license under the EAR would be required.

    (b) Release to A:5 nationals. Release of “technology” or “source code” by an entity outside the United States to a foreign national of a country other than the foreign country where the release takes place does not constitute a deemed reexport of such “technology” or “source code” if:

    (1) The entity is authorized to receive the “technology” or “source code” at issue, whether by a license, license exception, or through situations where no license is required under the EAR;

    (2) The foreign national is a bona fide regular and permanent employee who is not a proscribed person under U.S. law and is directly employed by the entity;

    (3) Such employee is a national exclusively of a country in Country Group A:5; and

    (4) The release of “technology” or “source code” takes place entirely within the physical territory of any such country.

    (c) Release to other than A:5 nationals. Release of “technology” or “source code” by an entity outside the United States to a foreign national of a country other than the foreign country where the release takes place does not constitute a deemed reexport of such “technology” or “source code” if:

    (1) The entity is authorized to receive the “technology” or “source code” at issue, whether by a license, license exception, or situations where no license is required under the EAR;

    (2) The foreign national is a bona fide regular and permanent employee who is not a proscribed person under U.S. law and is directly employed by the entity;

    (3) The release takes place entirely within the physical territory of the country where the entity is located, conducts official business, or operates;

    (4) The entity has effective procedures to prevent diversion to destinations, entities, end users, and end uses contrary to the EAR; and

    (5) Any one of the following six (i.e., paragraphs (c)(5)(i), (ii), (iii), (iv), (v), or (vi) of this section) situations is applicable:

    (i) The foreign national has a security clearance approved by the host nation government of the entity outside the United States;

    (ii) The entity outside the United States:

    (A) Has in place a process to screen the foreign national employee and to have the employee execute a non-disclosure agreement that provides assurances that the employee will not disclose, transfer, or reexport controlled technology contrary to the EAR;

    (B) Screens the employee for substantive contacts with countries listed in Country Group D:5 (see Supplement No. 1 to part 740 of the EAR). Although nationality does not, in and of itself, prohibit access to “technology” or “source code” subject to the EAR, an employee who has substantive contacts with persons from countries listed in Country Group D:5 shall be presumed to raise a risk of diversion, unless BIS determines otherwise;

    (C) Maintains a technology security or clearance plan that includes procedures for screening employees for such substantive contacts;

    (D) Maintains records of such screenings for the longer of five years or the duration of the individual's employment with the entity; and

    (E) Will make such plans and records available to BIS or its agents for civil and criminal law enforcement purposes upon request;

    (iii) The entity is a UK entity implementing § 126.18 of the ITAR (22 CFR 126.18) pursuant to the US-UK Exchange of Notes regarding § 126.18 of the ITAR for which the UK has provided appropriate implementation guidance;

    (iv) The entity is a Canadian entity implementing § 126.18 of the ITAR pursuant to the US-Canadian Exchange of Letters regarding § 126.18 of the ITAR for which Canada has provided appropriate implementation guidance;

    (v) The entity is an Australian entity implementing the exemption at paragraph 3.7b of the ITAR Agreements Guidelines; or

    (vi) The entity is a Dutch entity implementing the exemption at paragraph 3.7c of the ITAR Agreements Guidelines.

    (d) Definitions. (1) “Substantive contacts” includes regular travel to countries in Country Group D:5; recent or continuing contact with agents, brokers, and nationals of such countries; continued demonstrated allegiance to such countries; maintenance of business relationships with persons from such countries; maintenance of a residence in such countries; receiving salary or other continuing monetary compensation from such countries; or acts otherwise indicating a risk of diversion.

    (2) “Permanent and regular employee” is an individual who:

    (a) Is permanently (i.e., for not less than a year) and directly employed by an entity, or

    (b) Is a contract employee who:

    (i) Is in a long-term contractual relationship with the company where the individual works at the entity's facilities or at locations assigned by the entity (such as a remote site or on travel);

    (ii) Works under the entity's direction and control such that the company must determine the individual's work schedule and duties;

    (iii) Works full time and exclusively for the entity; and

    (iv) Executes a nondisclosure certification for the company that he or she will not disclose confidential information received as part of his or her work for the entity.

    Note to paragraph (d)(2):

    If the contract employee has been seconded to the entity by a staffing agency, then the staffing agency must not have any role in the work the individual performs other than to provide the individual for that work. The staffing agency also must not have access to any controlled “technology” or “source code” other than that authorized by the applicable regulations or a license.

    PART 740—LICENSE EXCEPTIONS 17. The authority citation for part 740 continues to read as follows: Authority:

    50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2014, 79 FR 46959 (August 11, 2014).

    18. Section 740.9(a)(3) is revised to read as follows:
    § 740.9 Temporary imports, exports, reexports, and transfers (in-country) (TMP).

    (a) * * *

    (3) “Technology,” regardless of media or format, may be exported by or to a U.S. person or a foreign national employee of a U.S. person, traveling or on temporary assignment abroad, subject to the following restrictions:

    (i) Foreign nationals may only export or receive such “technology” as they are authorized to receive through a license, license exception other than TMP or because no license is required.

    (ii) “Technology” exported under this authorization may only be possessed or used by a U.S. person or authorized foreign national and sufficient security precautions must be taken to prevent the unauthorized release of the “technology.” Such security precautions include encryption of the “technology,” the use of secure network connections, such as Virtual Private Networks, the use of passwords or other access restrictions on the electronic device or media on which the “technology” is stored, and the use of firewalls and other network security measures to prevent unauthorized access.

    (iii) The U.S. person is an employee of the U.S. Government or is directly employed by a U.S. person and not, e.g., by a foreign subsidiary.

    (iv) Technology” authorized under this exception may not be used for foreign production purposes or for technical assistance unless authorized through a license or license exception other than TMP.

    (v) The U.S. person employer of foreign nationals must document the use of this exception by foreign national employees, including the reason that the “technology” is needed by the foreign nationals for their temporary business activities abroad on behalf of the U.S. person.

    PART 750—APPLICATION PROCESSING, ISSUANCE, AND DENIAL 19. The authority citation for 15 CFR part 750 continues to read as follows: Authority:

    50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; Sec 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013); Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 7, 2014, 79 FR 46959 (August 11, 2014).

    20. Section 750.7 is amended by revising paragraph (a) to read as follows:
    § 750.7 Issuance of licenses.

    (a) Scope. Unless limited by a condition set out in a license, the export, reexport, or transfer (in-country) authorized by a license is for the item(s), end-use(s), and parties described in the license application and any letters of explanation. The applicant must inform the other parties identified on the license, such as the ultimate consignees and end users, of the license's scope and of the specific conditions applicable to them. BIS grants licenses in reliance on representations the applicant made in or submitted in connection with the license application, letters of explanation, and other documents submitted. A BIS license authorizing the release of technology to an entity also authorizes the release of the same technology to the entity's foreign nationals who are permanent and regular employees (and who are not proscribed persons under U.S. law) of the entity's facility or facilities authorized on the license, except to the extent a license condition limits or prohibits the release of the technology to nationals of specific countries or country groups.

    PART 764—ENFORCEMENT AND PROTECTIVE MEASURES 21. The authority citation for part 764 continues to read as follows: Authority:

    50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2014, 79 FR 46959 (August 11, 2014).

    22. Section 764.2 is amended by adding paragraph (l) to read as follows:
    § 764.2 Violations.

    (l) No person may “release” or otherwise transfer information, such as decryption keys, network access codes, or passwords, that would allow access to other “technology” in clear text or “software” with “knowledge” that the release will result, directly or indirectly, in an unauthorized export, reexport, or transfer of the “technology” in clear text or “software.” Violation of this provision will constitute a violation to the same extent as a violation in connection with the export of the controlled “technology” or “software.”

    PART 772—DEFINITIONS OF TERMS 23. The authority citation for part 772 continues to read as follows: Authority:

    50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2014, 79 FR 46959 (August 11, 2014).

    24. Section 772.1 is amended by: a. Adding, in alphabetical order, the definition for “Applied research”; b. Revising the definitions of “Basic scientific research” and “Export”; c. Adding, in alphabetical order, definitions for “Fundamental research,” “Peculiarly responsible,” “Proscribed person,” and “Publicly available encryption software”; d. Removing the definitions of “Publicly available information” and “Publicly available technology and software”; e. Adding, in alphabetical order, the definition for “Published”; f. Revising the definitions of “Reexport”; g. Adding, in alphabetical order, the definition for “Release”; h. Revising the definition of “Required”; i. Removing the definition of “Technical data”; and j. Revising the definitions of “Technology,” and “Transfer.”

    The revisions and additions read as follows:

    § 772.1 Definitions of terms as used in the Export Administration Regulations (EAR).

    Applied research. See § 734.8(c) of the EAR.

    Basic scientific research. (GTN)—Experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective. See also § 734.8(c) of the EAR.

    Export. See § 734.13 of the EAR.

    Fundamental research. See § 734.8 of the EAR.

    Peculiarly responsible. An item is “peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions” if it is used in or for use in the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item subject to the EAR unless:

    (1) The Department of Commerce has determined otherwise in a commodity classification determination;

    (2) [Reserved];

    (3) It is identical to information used in or with a commodity or software that:

    (i) Is or was in production (i.e., not in development); and

    (ii) Is EAR99 or described in an ECCN controlled only for Anti-Terrorism (AT) reasons;

    (4) It was or is being developed with “knowledge” that it would be for use in or with commodities or software:

    (i) Described in an ECCN; and

    (ii) Also commodities or software either not enumerated on the CCL or the USML (e.g., EAR99 commodities or software) or commodities or software described in an ECCN controlled only for Anti-Terrorism (AT) reasons;

    (5) It was or is being developed for use in or with general purpose commodities or software, i.e., with no “knowledge” that it would be for use in or with a particular commodity or type of commodity; or

    (6) It was or is being developed with “knowledge” that it would be for use in or with commodities or software described:

    (i) In an ECCN controlled for AT-only reasons and also EAR99 commodities or software; or

    (ii) Exclusively for use in or with EAR99 commodities or software.

    Proscribed person. A person who is prohibited from receiving the items at issue or participating in a transaction that is subject to the EAR without authorization by virtue of U.S. law, such as persons on the Entity List, Specially Designated Nationals, or debarred parties.

    Publicly available encryption software. See § 740.13(e) of the EAR.

    Published. See § 734.7 of the EAR.

    Reexport. See § 734.14 of the EAR.

    Release. See § 734.15 of the EAR.

    Required. (General Technology Note)—As applied to “technology” or “software”, refers to only that portion of “technology” or “software” which is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions. Such “required” “technology” or “software” may be shared by different products. For example, assume product “X” is controlled if it operates at or above 400 MHz and is not controlled if it operates below 400 MHz. If production technologies “A”, “B”, and “C” allow production at no more than 399 MHz, then technologies “A”, “B”, and “C” are not “required” to produce the controlled product “X”. If technologies “A”, “B”, “C”, “D”, and “E” are used together, a manufacturer can produce product “X” that operates at or above 400 MHz. In this example, technologies “D” and “E” are “required” to make the controlled product and are themselves controlled under the General Technology Note. (See the General Technology Note.)

    Note 1 to the definition of required:

    The references to “characteristics” and “functions” are not limited to entries on the CCL that use specific technical parameters to describe the scope of what is controlled. The “characteristics” and “functions” of an item listed are, absent a specific regulatory definition, a standard dictionary's definition of the item. For example, ECCN 9A610.a controls “military aircraft specially designed for a military use that are not enumerated in USML paragraph VIII(a).” No performance level is identified in the entry, but the control characteristic of the aircraft is that it is specially designed “for military use.” Thus, any technology, regardless of significance, peculiar to making an aircraft “for military use” as opposed to, for example, an aircraft controlled under ECCN 9A991.a, would be technical data “required” for an aircraft specially designed for military use thus controlled under ECCN 9E610.

    Note 2 to the definition of required:

    The ITAR and the EAR often divide within each set of regulations or between each set of regulations:

    1. Controls on parts, components, accessories, attachments, and software; and

    2. Controls on the end items, systems, equipment, or other items into which those parts, components, accessories, attachments, and software are to be installed or incorporated.

    Moreover, with the exception of technical data specifically enumerated on the USML, the jurisdictional status of unclassified technical data or “technology” is the same as the jurisdictional status of the defense article or “item subject to the EAR” to which it is directly related. Thus, if technology is directly related to the production of a 9A610.x aircraft component that is to be integrated or installed in a USML VIII(a) aircraft, then the technology is controlled under ECCN 9E610, not USML VIII(i).

    Technology” means:

    (a) Except as set forth in paragraph (b) of this definition:

    (1) Information necessary for the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul, or refurbishing (or other terms specified in ECCNs on the CCL that control “technology”) of an item. “Technology” may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, electronic media or information gleaned through visual inspection;

    Note to paragraph (a)(1) of this definition:

    The modification of an existing item creates a new item and technology for the modification is technical data for the development of the new item.

    (2) [Reserved];

    (3) [Reserved];

    (4) [Reserved]; or

    (5) Information, such as decryption keys, network access codes, or passwords, that would allow access to other “technology” in clear text or “software.”

    (b) “Technology” does not include:

    (1) Non-proprietary general system descriptions;

    (2) Information on basic function or purpose of an item; or

    (3) Telemetry data as defined in note 2 to Category 9, Product Group E (see Supplement No. 1 to Part 774 of the EAR).

    Transfer. A shipment, transmission, or release of items subject to the EAR either within the United States or outside the United States. For in-country transfer/transfer (in-country), see § 734.16 of the EAR.

    Note to definition of transfer:

    This definition of “transfer” does not apply to § 750.10 of the EAR or Supplement No. 8 to part 760 of the EAR. The term “transfer” may also be included on licenses issued by BIS. In that regard, the changes that can be made to a BIS license are the non-material changes described in § 750.7(c) of the EAR. Any other change to a BIS license without authorization is a violation of the EAR. See §§ 750.7(c) and 764.2(e) of the EAR.

    Dated: May 18, 2015. Kevin J. Wolf, Assistant Secretary for Export Administration.
    [FR Doc. 2015-12843 Filed 6-2-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 558 [Docket No. FDA-2010-N-0155] Veterinary Feed Directive Regulation Questions and Answers; Draft Guidance for Industry; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Draft revised guidance; availability.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing the availability of a draft revised guidance for industry (GIF) #120 entitled “Veterinary Feed Directive Regulation Questions and Answers.” The purpose of this document is to describe the current Veterinary Feed Directive (VFD) requirements for veterinarians, feed manufacturers and other distributors, animal producers, and other parties involved in the distribution or use of medicated feed containing a veterinary feed directive drug (VFD feed). This draft revised guidance reflects changes to the VFD requirements under the VFD final rule.

    DATES:

    Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by August 3, 2015.

    ADDRESSES:

    Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the draft guidance document.

    Submit electronic comments on the draft guidance to http://www.regulations.gov. Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Dragan Momcilovic, Center for Veterinary Medicine (HFV-226), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-453-6856, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    FDA is announcing the availability of a draft revised GFI #120 entitled “Veterinary Feed Directive Regulation Questions and Answers.” The audience for this draft guidance is comprised of veterinarians issuing VFD orders, feed mills manufacturing VFD feeds and other distributors, animal producers who obtain VFD feeds for use in treating their animals, and others. This draft revised guidance reflects changes to the VFD requirements under the VFD final rule published elsewhere in this edition of the Federal Register.

    In 1996, Congress enacted the Animal Drug Availability Act (ADAA) to facilitate the approval and marketing of new animal drugs and medicated feeds. In passing the ADAA, Congress created a new regulatory category for certain animal drugs used in animal feed called veterinary feed directive (VFD) drugs. VFD drugs are new animal drugs intended for use in or on animal feed which are limited to use under the professional supervision of a licensed veterinarian. FDA published final regulations implementing the VFD-related provisions of the ADAA in 2000.

    Elsewhere in this edition of the Federal Register, FDA is publishing a VFD final rule that revises those VFD regulations and introduces clarifying changes to specified definitions. This draft revised guidance includes revisions that are consistent with the requirements in that final rule.

    II. Significance of Guidance

    This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on this topic. It does not establish any rights for or on any person and does is not binding on FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.

    III. Paperwork Reduction Act of 1995

    This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 558.6 have been approved under OMB control number 0910-0363.

    IV. Comments

    Interested persons may submit either electronic comments regarding this document to http://www.regulations.gov or written comments to the Division of Dockets Management (see ADDRESSES). It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

    V. Electronic Access

    Persons with access to the Internet may obtain the draft guidance at either http://www.fda.gov/AnimalVeterinary/GuidanceComplianceEnforcement/GuidanceforIndustry/default.htm or http://www.regulations.gov.

    Dated: May 28, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-13394 Filed 6-2-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1308 [Docket No. DEA-415] Schedules of Controlled Substances: Removal of [123I]Ioflupane From Schedule II of the Controlled Substances Act AGENCY:

    Drug Enforcement Administration, Department of Justice.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Drug Enforcement Administration proposes to remove [123I]ioflupane from the schedules of the Controlled Substances Act. This action is pursuant to the Controlled Substances Act which requires that such actions be made on the record after an opportunity for a hearing through formal rulemaking. [123I]Ioflupane is, by definition, a schedule II controlled substance because it is derived from cocaine via ecgonine, both of which are schedule II controlled substances. This action would remove the regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances, including those specific to schedule II controlled substances, on persons who handle (manufacture, distribute, reverse distribute, dispense, conduct research, import, export, or conduct chemical analysis) or propose to handle [123I]ioflupane.

    DATES:

    Interested persons may file written comments on this proposal in accordance with 21 CFR 1308.43(g). Electronic comments must be submitted, and written comments must be postmarked, on or before July 6, 2015. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.

    Interested persons, defined at 21 CFR 1300.01 as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811)”, may file a request for hearing or waiver of participation pursuant to 21 CFR 1308.44 and in accordance with 21 CFR 1316.45, 1316.47, 1316.48, or 1316.49, as applicable. Requests for hearing, notices of appearance, and waivers of an opportunity for a hearing or to participate in a hearing must be received on or before July 6, 2015.

    ADDRESSES:

    To ensure proper handling of comments, please reference “Docket No. DEA-415” on all correspondence, including any attachments.

    Electronic comments: The DEA encourages that all comments be submitted through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the Web page or to attach a file for lengthier comments. Please go to http://www.regulations.gov and follow the online instructions at that site for submitting comments. Upon completion of your submission you will receive a Comment Tracking Number for your comment. Please be aware that submitted comments are not instantaneously available for public view on Regulations.gov. If you have received a Comment Tracking Number, your comment has been successfully submitted and there is no need to resubmit the same comment.

    Paper comments: Paper comments that duplicate an electronic submission are not necessary and are discouraged. Should you wish to mail a comment in lieu of submitting a comment online, it should be sent via regular or express mail to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152.

    Hearing requests: All requests for hearing must be sent to: DEA Federal Register Representative/ODL, 8701 Morrissette Drive, Springfield, Virginia 22152.

    FOR FURTHER INFORMATION CONTACT:

    John R. Scherbenske, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.

    SUPPLEMENTARY INFORMATION:

    Posting of Public Comments

    Please note that all comments received in response to this docket are considered part of the public record. They will, unless reasonable cause is given, be made available by the DEA for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. The Freedom of Information Act (FOIA) applies to all comments received. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be made publicly available, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place the personal identifying information you do not want made publicly available in the first paragraph of your comment and identify what information you want redacted.

    If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment.

    Comments containing personal identifying information and confidential business information identified as directed above will generally be made publicly available in redacted form. If a comment has so much confidential business information or personal identifying information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to http://www.regulations.gov may include any personal identifying information (such as name, address, and phone number) included in the text of your online submission that is not identified as directed above as confidential.

    An electronic copy of this document and supplemental information to this proposed rule are available at http://www.regulations.gov for easy reference.

    Request for Hearing, Notice of Appearance at or Waiver of Participation in Hearing

    Pursuant to 21 U.S.C. 811(a), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of the Administrative Procedure Act (APA) (5 U.S.C. 551-559). 21 CFR 1308.41-1308.45, and 21 CFR part 1316 subpart D. In accordance with 21 CFR 1308.44 (a)-(c), requests for hearing, notices of appearance, and waivers of an opportunity for a hearing or to participate in a hearing may be submitted only by interested persons, defined as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811).” 21 CFR 1300.01. Such requests or notices must conform to the requirements of 21 CFR 1308.44 (a) or (b), and 1316.47 or 1316.48, as applicable, and include a statement of the interest of the person in the proceeding and the objections or issues, if any, concerning which the person desires to be heard. Any waiver must conform to the requirements of 21 CFR 1308.44(c) and 1316.49, including a written statement regarding the interested person's position on the matters of fact and law involved in any hearing.

    Legal Authority

    The Drug Enforcement Administration (DEA) implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, but they are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purposes of this action. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring an adequate supply is available for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.

    Under the CSA, each controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the drug or other substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c) and the current list of scheduled substances is published at 21 CFR part 1308.

    Pursuant to 21 U.S.C. 811(a)(2), the Attorney General may, by rule, “remove any drug or other substance from the schedules if he [or she] finds that the drug or other substance does not meet the requirements for inclusion in any schedule.” The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA, 28 CFR 0.100.

    The CSA provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the Attorney General (1) on his or her own motion, (2) at the request of the Secretary of the Department of Health and Human Services,1 or (3) on the petition of any interested party. 21 U.S.C. 811(a). This action was initiated at the request of the Assistant Secretary for Health of the HHS, and is supported by an evaluation of all relevant data by the HHS and the DEA. This action would remove the regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances, including those specific to schedule II controlled substances, on persons who handle or propose to handle [123I]ioflupane.

    1 As discussed in a memorandum of understanding entered into by the Food and Drug Administration (FDA) and the National Institute on Drug Abuse (NIDA), the FDA acts as the lead agency within the HHS in carrying out the Secretary's scheduling responsibilities under the CSA, with the concurrence of NIDA. 50 FR 9518, Mar. 8, 1985. The Secretary of the HHS has delegated to the Assistant Secretary for Health of the HHS the authority to make domestic drug scheduling recommendations. 58 FR 35460, July 1, 1993.

    Background

    DaTscan is a single-dose, injectable diagnostic radiopharmaceutical for use in hospital settings with specialized gamma cameras. It was developed as a diagnostic tool for visualization of dopamine transporters (DAT) by using single photon emission computed tomography (SPECT) brain imaging. The Food and Drug Administration (FDA) approved the New Drug Application (NDA) for DaTscan on January 14, 2011, for the indication of visualizing striatal DATs in the brains of adult patients with suspected Parkinsonian syndromes (PS). [123I]Ioflupane is the active pharmaceutical ingredient (API) in DaTscan and it is a new molecular entity. However, [123I]Ioflupane is, by definition, a schedule II controlled substance because it is derived from cocaine, a schedule II substance, via ecgonine (a schedule II substance). See 21 U.S.C. 812(c), Schedule II, (a)(4). Each vial of DaTscan contains 0.325 micrograms (μg) of [123I]ioflupane per 2.5 milliliters (ml). The average and maximum amounts of non-radioactive ioflupane in each DaTscan vial are estimated to be between 0.21 μg and 0.31 μg. Although ioflupane, the non-radiolabeled API of the drug product DaTscan, binds to DAT and elicits behavioral effects similar to that of cocaine, based upon the available information and DaTscan's unique formulation-specific properties, DaTscan itself presents no practical possibility of abuse, misuse, diversion or clandestine production.

    Proposed Determination To Decontrol [123I]Ioflupane

    Pursuant to 21 U.S.C. 811(b), (c), and (f), the HHS recommended to the DEA on November 2, 2010, that FDA-approved products containing [123I]ioflupane be removed from schedule II of the CSA. HHS provided to DEA a scientific and medical evaluation document entitled “Basis for the Recommendation to Remove FDA Approved Products Containing [123I]Ioflupane from Schedule II of the Controlled Substances Act (CSA).” Pursuant to 21 U.S.C. 811(b), this document contained an eight-factor analysis of FDA-approved products containing [123I]ioflupane, along with the HHS's recommendation to remove FDA-approved products containing [123I]ioflupane from the schedules of the CSA.

    In response, the DEA reviewed the scientific and medical evaluation and scheduling recommendation provided by the HHS, and all other relevant data. The DEA and HHS collaborated further regarding the available information. By letter dated February 2, 2015, the HHS provided detailed responses to specific inquiries from the DEA (submitted by letter dated September 16, 2014). Upon further review of all of the available information, the DEA completed its own eight-factor review document on FDA-approved diagnostic products containing [123I]ioflupane (currently, only DaTscan) pursuant to 21 U.S.C. 811(c). The FDA-approved diagnostic product, DaTscan, was used as the basis for the scientific and medical evaluation of FDA-approved diagnostic products containing [123I]ioflupane for both the HHS and DEA eight-factor analysis. Included below is a brief summary of each factor as analyzed by the HHS and the DEA, and as considered by the DEA in this proposed rule to remove [123I]ioflupane from the schedules of the CSA. Please note that both the DEA and HHS analyses and other relevant documents are available in their entirety under “Supporting and Related Material” of the public docket for this rule at http://www.regulations.gov under docket number DEA-415.

    1. The Drug's Actual or Relative Potential for Abuse

    According to HHS and the DEA, there are no data demonstrating that individuals are administering quantities of DaTscan sufficient to create a hazard to their health or to the safety of other individuals or to the community. In clinical studies, DaTscan, due to its low concentrations of [123I]ioflupane lacked, central nervous activity (CNS) in humans.

    According to HHS review of Sponsor's calculation regarding psychoactive doses of DaTscan, approximately 6,000 vials of DaTscan would be required to produce a subjective “high” in humans from exposure to [123I]ioflupane in this product. The volume of 6,000 vials is about 15 liters (L) of fluid, an amount that would be lethal if administered intravenously (i.v.). The short half-life of DaTscan (due to its radioactive decay) will prevent its extended storage for future use at the manufacturing, distributing, or radiopharmacy site; thereby limiting the amount available for diversion. It is highly unlikely that individuals will administer DaTscan on their own initiative since DaTscan has a very dilute and small dose of [123I]ioflupane, and possesses radioactivity. As a result, DaTscan will not have significant capability of creating hazards to the health of the user or to the safety of the community.

    2. Scientific Evidence of the Drug's Pharmacological Effects, If Known

    DaTscan blocks monoamine transporters, such as DAT and other monoamine transporters such as serotonin transporters. Ioflupane, the active pharmaceutical ingredient in DaTscan, was demonstrated to have an affinity to DAT that was approximately 10- and 100-fold greater than cocaine in rodent brain homogenates or in cells transfected with rat DAT (Neumeyer et al., 1996; Okada et al., 1998; Scheffel et al., 1997). As reported by HHS, non-radiolabeled ioflupane at doses >0.1 mg/kg, i.v. was able to substitute for cocaine in cocaine-trained rats (10 mg/kg, intraperitoneal administration) using a drug discrimination protocol which is predictive of subjective behavioral effects in humans.

    HHS reviewed data from eight human clinical trials involving 942 subjects and nine years of post-approval use in Europe and found that there was not any clinical evidence of pharmacological effects resulting from DaTscan administration. The maximum dose of [123I]ioflupane in DaTscan that is administered to the patient prior to undergoing an imaging procedure is 0.325 μg (0.13 μg/ml). HHS extrapolated from the locomotor study and drug discrimination study on non-radiolabeled ioflupane and estimated that the lowest active dose of DaTscan for a 60 kg (132.2 lb) human to achieve a pharmacologic effect would be 288 μg or 886 vials of DaTscan. In addition, the recreational dose of DaTscan is estimated as 1921 µg or 5,910 vials.

    Although [123I]ioflupane would be expected to have a pharmacological profile nearly identical to its non-radioactive form, its unique properties (i.e., manufacturing limits and radioactive properties) pose practical barriers to its abuse. Furthermore, according to HHS, the amount of [123I]ioflupane in DaTscan is significantly less than the amounts of ioflupane used to elicit the pharmacological response in preclinical studies with this compound.

    3. The State of Current Scientific Knowledge Regarding the Drug or Other Substance

    The international non-proprietary name of [123I]ioflupane is methyl(1R, 2S, 3S, 5S)-8-(3-fluoropropyl)-3-(4-[123I]iodophenyl)-8-azabicyclo[3,2,1] octane-2-carboxylate. The molecular formula of [123I]ioflupane is C18H23F[123I]NO2 and the molecular weight is 427.28 g/mol. [123I]Ioflupane is a clear, colorless solution and is only present in a solution of ethanol and sodium acetate buffer. Non-radioactive ioflupane is a white solid with a melting point of 83 °C to 87 °C and soluble in water (less than 0.1 mg/ml), sodium acetate buffer (pH 7.4; 16 mg/ml), and ethanol (27 mg/ml).

    HHS states that meaningful extraction of [123I]ioflupane from DaTscan would be impossible due to its limited production and availability and because extraction is technically complex and would require advanced equipment not available to the general public. Importantly, if extraction of ioflupane from [123I]ioflupane is accomplished, the ioflupane would be subject to schedule II controls under the CSA. According to HHS, the retrosynthesis of DaTscan to cocaine and ecgonine would be difficult. Production of DaTscan is technically complex as it requires specialized equipment, facilities, scientific training and expertise, making clandestine manufacturing particularly difficult. HHS indicated that the non-radiolabeled precursors needed for the synthesis of [123I]ioflupane (and DaTscan) are abusable. In addition, the non-radiolabeled precursors derived from cocaine or ecgonine are also schedule II controlled substances. However, even if an individual obtained the precursors, it is impractical and highly unlikely that they would synthesize the abusable compound into a radiolabeled formulation with a limited storage life that is not desired by drug users.

    On January 14, 2011, FDA approved the NDA for DaTscan with the indication of visualizing striatal dopamine transporters in the brains of adult patients with suspected Parkinsonian syndromes using SPECT imaging. As such, any FDA-approved diagnostic product containing [123I]ioflupane has a currently accepted medical use in the United States.

    4. Its History and Current Pattern of Abuse

    According to HHS, there have been no reports of abuse of [123I]ioflupane. Over 168,000 doses of DaTscan have been administered to patients worldwide, and no pharmacological effects have been noted. Further, according to HHS, no single user has received more than 10 vials of DaTscan in a single day.

    5. The Scope, Duration, and Significance of Abuse

    There have been no reports of abuse of [123I]ioflupane. According to the National Forensic Laboratory Information System (NFLIS) 2 and the System to Retrieve Information from Drug Evidence (STRIDE) 3 , there have been no reports of [123I]ioflupane seizures during the time period January 2010 to February 2015.

    2 NFLIS is a program of the DEA that collects drug identification results from drug cases analyzed by other Federal, State, and local forensic laboratories. NFLIS was queried on April 16, 2015.

    3 STRIDE collected the results of drug evidence analyzed at DEA laboratories and reflects evidence submitted by the DEA, other Federal law enforcement agencies, and some local law enforcement agencies. STRIDE data was queried by date submitted to Federal forensic laboratories. On October 1, 2014, STARLiMS replaced STRIDE as the DEA laboratory drug evidence data system of record.

    6. What, If Any, Risk There Is to the Public Health

    According to the HHS, because of the limited amounts of manufactured DaTscan, the low concentration of [123I]ioflupane per vial, and the existence of stringent regulatory controls (controls other than those imposed by the CSA and its implementing regulations, including regulation by the United States Nuclear Regulatory Commission under 10 CFR part 35 and/or by states) 4 on the manufacturing and handling of DaTscan, abuse of DaTscan is not possible as a practical matter. Thus, there is little to no practical risk to public health from DaTscan abuse.

    4 There are Federal and state laws and regulations which limit the public's exposure to radioactivity in radiopharmaceuticals, thus limiting the potential for toxicity imposed on the public.

    7. Its Psychic or Physiological Dependence Liability

    As reviewed by HHS, non-radiolabeled ioflupane has cocaine-like properties. In a drug discrimination study in cocaine-trained rats, non-radiolabeled ioflupane produced cocaine-appropriate responding, which suggests that non-radiolabeled ioflupane may produce cocaine-like subjective effects in humans (HHS, 2010).

    However, the available evidence suggests that there is no psychic or physiological dependence potential of FDA-approved diagnostic products containing [123I]ioflupane. The psychic or physiological dependence potential of FDA-approved diagnostic products is currently expected to be very limited due to the low exposure concentration of [123I]ioflupane, the aforementioned low potential for abuse (see Factor 1) and the extremely high and lethal quantities needed to achieve a subjective “high.”

    8. Whether the Substance Is an Immediate Precursor of a Substance Already Controlled Under the CSA

    [123I]Ioflupane is not an immediate precursor of a substance already controlled under the CSA.

    Conclusion

    Based on consideration of the scientific and medical evaluation and accompanying recommendation of the HHS and based on the DEA's consideration of its own eight-factor analysis, the DEA finds that the facts and all available and relevant data demonstrate that [123I]ioflupane does not possess abuse or dependence potential. Accordingly, the DEA finds that [123I]ioflupane does not meet the requirements for inclusion in any schedule and should be removed from control under the CSA.

    Findings for Schedule Placement Pursuant to 21 U.S.C. 812(b)

    The CSA outlines the findings required to place a drug or other substance in any particular schedule (I, II, III, IV, or V). 21 U.S.C. 812(b). The Assistant Secretary for Health of the HHS recommended removal of “FDA approved products containing [123I]ioflupane from schedule II of the” CSA. However, because the DEA finds no basis to remove only FDA approved products containing [123I]ioflupane from the schedules, this action proposes to remove the substance [123I]ioflupane from the CSA schedules. Historically, when new molecular entities are removed from control, the substance itself is removed from control rather than the specific FDA-approved drug product (e.g., naloxegol, 80 FR 3468; naloxone, 39 FR 44392). As summarized above, the data currently support removal of substances that contain [123I]ioflupane, primarily because [123I]ioflupane itself has a lethal radioactive barrier, and its manufacturing process is highly regulated and technically complex, thus making abuse highly unlikely.

    After consideration of the analyses and recommendation of the Assistant Secretary for Health of the HHS and review of all relevant and available data, the Administrator of the DEA, pursuant to 21 U.S.C. 812(b)(5), finds that:

    (1) [123I]Ioflupane has no comparable potential for abuse relative to substances in Schedule V.

    (2) [123I]Ioflupane has a currently accepted medical use in treatment in the United States. FDA approved the New Drug Application for DaTscan on January 14, 2011, with the indication of visualizing striatal dopamine transporters in the brains of adult patients with suspected Parkinsonian syndromes using SPECT imaging.

    (3) [123I]Ioflupane is not abusable, therefore, its use is not likely to lead to physical or psychological dependence.

    Based on these findings, the Administrator of the DEA concludes that [123I]ioflupane does not warrant control under the CSA.

    Effect on Other Rulemakings

    On November 25, 2014, DEA published an interim final rule waiving the requirement of DEA registration for certain entities that are authorized under other federal or state authorities to administer DaTscan. 79 FR 70085. If finalized, this proposal to remove [123I]ioflupane from the schedules of controlled substances would make such waivers unnecessary. Therefore, if this action is finalized, DEA intends to withdraw the regulations established through that interim final rule.

    Regulatory Analyses Executive Orders 12866 and 15363

    In accordance with 21 U.S.C. 811(a), this scheduling action is subject to formal rulemaking procedures done “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the criteria for scheduling a drug or other substance and for removing a drug or substance from the schedules of controlled substances. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563.

    Executive Order 12988

    This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

    Executive Order 13132

    This rulemaking does not have federalism implications warranting the application of Executive Order 13132. The rule does not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government.

    Executive Order 13175

    This rule does not have tribal implications warranting the application of Executive Order 13175. This rule does not have substantial direct effects 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.

    Regulatory Flexibility Act

    The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), has reviewed this proposed rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. The purpose of this rule is to remove [123I]ioflupane from the list of schedules of the CSA. This action will remove regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances for handlers and proposed handlers of [123I]ioflupane. Accordingly, it has the potential for some economic impact in the form of cost savings.

    If finalized, the proposed rule will affect all persons who would handle, or propose to handle, [123I]ioflupane. Due to the wide variety of unidentifiable and unquantifiable variables that potentially could influence the distribution and administration rates of new molecular entities, the DEA is unable to determine the number of entities and small entities which might handle [123I]ioflupane.

    Although the DEA does not have a reliable basis to estimate the number of affected entities and quantify the economic impact of this proposed rule, a qualitative analysis indicates that, if finalized, this rule is likely to result in some cost savings for the healthcare industry. The affected entities will continue to meet existing Federal and/or state requirements applicable to those who handle radiopharmaceutical substances, including licensure, security, recordkeeping, and reporting requirements, which in many cases are more stringent than the DEA's requirements. However, the DEA estimates cost savings will be realized from the removal of the administrative, civil, and criminal sanctions for those entities handling or proposing to handle [123I]ioflupane, in the form of saved registration fees, and the elimination of additional physical security, recordkeeping, and reporting requirements.

    Because of these facts, this rule will not result in a significant economic impact on a substantial number of small entities.

    Unfunded Mandates Reform Act of 1995

    On the basis of information contained in the “Regulatory Flexibility Act” section above, the DEA has determined and certifies pursuant to the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et seq., that this action would not result in any federal mandate that may result “in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted for inflation) in any one year * * * .” Therefore, neither a Small Government Agency Plan nor any other action is required under provisions of UMRA.

    Paperwork Reduction Act

    This action does not impose a new collection of information requirement under the Paperwork Reduction Act, 44 U.S.C. 3501-3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    List of Subjects in 21 CFR part 1308

    Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.

    For the reasons set out above, 21 CFR part 1308 is proposed to be amended to read as follows:

    PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES 1. The authority citation for 21 CFR part 1308 continues to read as follows: Authority:

    21 U.S.C. 811, 812, 871(b), unless otherwise noted.

    2. In § 1308.12, revise paragraph (b)(4) to read as follows:
    § 1308.12 Schedule II.

    (b) * * *

    (4) Coca leaves (9040) and any salt, compound, derivative or preparation of coca leaves (including cocaine (9041) and ecgonine (9180) and their salts, isomers, derivatives and salts of isomers and derivatives), and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include:

    (i) Decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine; or

    (ii) [123I]ioflupane.

    Dated: May 6, 2015. Michele M. Leonhart, Administrator.
    [FR Doc. 2015-13455 Filed 6-2-15; 8:45 am] BILLING CODE 4410-09-P
    DEPARTMENT OF STATE 22 CFR Parts 120, 123, 125, and 127 [Public Notice 9149] RIN 1400-AD70 International Traffic in Arms: Revisions to Definitions of Defense Services, Technical Data, and Public Domain; Definition of Product of Fundamental Research; Electronic Transmission and Storage of Technical Data; and Related Definitions AGENCY:

    Department of State.

    ACTION:

    Proposed rule.

    SUMMARY:

    As part of the President's Export Control Reform (ECR) initiative, the Department of State proposes to amend the International Traffic in Arms Regulations (ITAR) to update the definitions of “defense article,” “defense services,” “technical data,” “public domain,” “export,” and “reexport or retransfer” in order to clarify the scope of activities and information that are covered within these definitions and harmonize the definitions with the Export Administration Regulations (EAR), to the extent appropriate. Additionally, the Department proposes to create definitions of “required,” “technical data that arises during, or results from, fundamental research,” “release,” “retransfer,” and “activities that are not exports, reexports, or retransfers” in order to clarify and support the interpretation of the revised definitions that are proposed in this rulemaking. The Department proposes to create new sections detailing the scope of licenses, unauthorized releases of information, and the “release” of secured information, and revises the sections on “exports” of “technical data” to U.S. persons abroad. Finally, the Department proposes to address the electronic transmission and storage of unclassified “technical data” via foreign communications infrastructure. This rulemaking proposes that the electronic transmission of unclassified “technical data” abroad is not an “export,” provided that the data is sufficiently secured to prevent access by foreign persons. Additionally, this proposed rule would allow for the electronic storage of unclassified “technical data” abroad, provided that the data is secured to prevent access by parties unauthorized to access such data. The revisions contained in this proposed rule are part of the Department of State's retrospective plan under Executive Order 13563 first submitted on August 17, 2011.

    DATES:

    The Department of State will accept comments on this proposed rule until August 3, 2015.

    ADDRESSES:

    Interested parties may submit comments within 60 days of the date of publication by one of the following methods:

    Email: [email protected] with the subject line, “ITAR Amendment—Revisions to Definitions; Data Transmission and Storage.”

    Internet: At www.regulations.gov, search for this notice by using this rule's RIN (1400-AD70).

    Comments received after that date may be considered, but consideration cannot be assured. Those submitting comments should not include any personally identifying information they do not desire to be made public or information for which a claim of confidentiality is asserted because those comments and/or transmittal emails will be made available for public inspection and copying after the close of the comment period via the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. Parties who wish to comment anonymously may do so by submitting their comments via www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Comments submitted via www.regulations.gov are immediately available for public inspection.

    FOR FURTHER INFORMATION CONTACT:

    Mr. C. Edward Peartree, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-1282; email [email protected] ATTN: ITAR Amendment—Revisions to Definitions; Data Transmission and Storage. The Department of State's full retrospective plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.

    SUPPLEMENTARY INFORMATION:

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

    BIS is concurrently publishing comparable proposed amendments (BIS companion rule) to the definitions of “technology,” “required,” “peculiarly responsible,” “published,” results of “fundamental research,” “export,” “reexport,” “release,” and “transfer (in-country)” in the EAR. A side-by-side comparison on the regulatory text proposed by both Departments is available on both agencies' Web sites: www.pmddtc.state.gov and www.bis.doc.gov.

    1. Revised Definition of Defense Article

    The Department proposes to revise the definition of “defense article” to clarify the scope of the definition. The current text of § 120.6 is made into a new paragraph (a), into which software is added to the list of things that are a “defense article” because software is being removed from the definition of “technical data.” This is not a substantive change.

    A new § 120.6(b) is added to list those items that the Department has determined should not be a “defense article,” even though they would otherwise meet the definition of “defense article.” All the items described were formerly excluded from the definition of “technical data” in § 120.10. These items are declared to be not subject to the ITAR to parallel the EAR concept of “not subject to the EAR” as part of the effort to harmonize the ITAR and the EAR. This does not constitute a change in policy regarding these items or the scope of items that are defense articles.

    2. Revised Definition of Technical Data

    The Department proposes to revise the definition of “technical data” in ITAR § 120.10 in order to update and clarify the scope of information that may be captured within the definition. Paragraph (a)(1) of the revised definition defines “technical data” as information “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of a “defense article,” which harmonizes with the definition of “technology” in the EAR and the Wassenaar Arrangement. This is not a change in the scope of the definition, and additional words describing activities that were in the prior definition are included in parentheticals to assist exporters.

    Paragraph (a)(1) also sets forth a broader range of examples of formats that “technical data” may take, such as diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, or electronic media, that may constitute “technical data.” Additionally, the revised definition includes certain conforming changes intended to reflect the revised and newly added defined terms proposed elsewhere in this rule.

    The proposed revised definition also includes a note clarifying that the modification of the design of an existing item creates a new item and that the “technical data” for the modification is “technical data” for the new item.

    Paragraph (a)(2) of the revised definition defines “technical data” as also including information that is enumerated on the USML. This will be “technical data” that is positively described, as opposed to “technical data” described in the standard catch-all “technical data” control for all “technical data” directly related to a “defense article” described in the relevant category. The Department intends to enumerate certain controlled “technical data” as it continues to move the USML toward a more positive control list.

    Paragraph (a)(3) of the revised definition defines “technical data” as also including classified information that is for the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of a “defense article” or a 600 series item subject to the EAR. Paragraph (a)(5) of the revised definition defines “technical data” as also including information to access secured “technical data” in clear text, such as decryption keys, passwords, or network access codes. In support of the latter change, the Department also proposes to add a new provision to the list of violations in § 127.1(b)(4) to state that any disclosure of these decryption keys or passwords that results in the unauthorized disclosure of the “technical data” or software secured by the encryption key or password is a violation and will constitute a violation to the same extent as the “export” of the secured information. For example, the “release” of a decryption key may result in the unauthorized disclosure of multiple files containing “technical data” hosted abroad and could therefore constitute a violation of the ITAR for each piece of “technical data” on that server.

    Paragraph (b) of the revised definition of “technical data” excludes non-proprietary general system descriptions, information on basic function or purpose of an item, and telemetry data as defined in Note 3 to USML Category XV(f) (§ 121.1). Items formerly identified in this paragraph, principles taught in schools and “public domain” information, have been moved to the new ITAR § 120.6(b).

    The proposed definition removes software from the definition of “technical data.” Specific and catch-all controls on software will be added elsewhere throughout the ITAR as warranted, as it will now be defined as a separate type of “defense article.”

    3. Proposed Definition of Required

    The Department proposes a definition of “required” in a new § 120.46. “Required” is used in the definition of “technical data” and has, to this point, been an undefined term in the ITAR. The word is also used in the controls on technology in both the EAR and the Wassenaar Arrangement, as a defined term, which the Department is now proposing to adopt:

    . . . [O]nly that portion of [technical data] that is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions. Such required [technical data] may be shared by different products.

    The proposed definition of “required” contains three notes. These notes explain how the definition is to be applied.

    Note 1 provides that the definition explicitly includes information for meeting not only controlled performance levels, but also characteristics and functions. All items described on the USML are identified by a characteristic or function. Additionally, some descriptions include a performance level. As an example, USML Category VIII(a)(1) controls aircraft that are “bombers” and contains no performance level. The characteristic of the aircraft that is controlled is that it is a bomber, and therefore, any “technical data” peculiar to making an aircraft a bomber is “required.”

    Note 2 states that, with the exception of “technical data” specifically enumerated on the USML, the jurisdictional status of unclassified “technical data” is the same as that of the commodity to which it is directly related. Specifically, it explains that “technical data” for a part or component of a “defense article” is directly related to that part or component, and if the part or component is subject to the EAR, so is the “technical data.”

    Note 3 establishes a test for determining if information is peculiarly responsible for meeting or achieving the controlled performance levels, characteristics or functions of a “defense article.” It uses the same catch-and-release concept that the Department implemented in the definition of “specially designed.” It has a similarly broad catch of all information used in or for use in the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of a “defense article.” It has four releases that mirror the “specially designed” releases, and one reserved paragraph for information that the Department determines is generally insignificant. The first release is for information identified in a commodity jurisdiction determination. The second release is reserved. The third release is for information that is identical to information used in a non-defense article that is in “production,” and not otherwise enumerated on the ITAR. The fourth release is for information that was developed with knowledge that it is for both a “defense article” and a non-defense article. The fifth release is information that was developed for general purpose commodities.

    In the companion rule, BIS proposes to make Note 3 into a stand-alone definition for “peculiarly responsible” as it has application outside of the definition of “required.” The substance of Note 3 and the BIS definition of “peculiarly responsible” are identical. DDTC asks for comments on the placement of this concept.

    4. Proposed Definitions of Development and Production

    The Department proposes to add § 120.47 for the definition of “development” and § 120.48 for the definition of “production.” These definitions are currently in Notes 1 and 2 to paragraph (b)(3) in § 120.41, the definition of “specially designed.” Because “technical data” is now defined, in part, as information “required” for the “development” or “production” of a “defense article,” and these words are now used in the definition of a “defense service,” it is appropriate to define these terms. The adoption of these definitions is also done for the purpose of harmonization because these definitions are also used in the EAR and by the Wassenaar Arrangement.

    5. Revised Definition of Public Domain

    The Department proposes to revise the definition of “public domain” in ITAR § 120.11 in order to simplify, update, and introduce greater versatility into the definition. The existing version of ITAR § 120.11 relies on an enumerated list of circumstances through which “public domain” information might be published. The Department believes that this definition is unnecessarily limiting in scope and insufficiently flexible with respect to the continually evolving array of media, whether physical or electronic, through which information may be disseminated.

    The proposed definition is intended to identify the characteristics that are common to all of the enumerated forms of publication identified in the current rule—with the exception of ITAR § 120.11(a)(8), which is addressed in a new definition for “technical data that arises during, or results from, fundamental research”—and to present those common characteristics in a streamlined definition that does not require enumerated identification within the ITAR of every current or future qualifying publication scenario. Additionally, the proposed definition incorporates phrases such as “generally accessible” and “without restriction upon its further dissemination” in order to better align the definition found in the EAR and more closely aligned with the definition in the Wassenaar Arrangement control lists.

    The proposed definition requires that information be made available to the public without restrictions on its further dissemination. Any information that meets this definition is “public domain.” The definition also retains an exemplary list of information that has been made available to the public without restriction and would be considered “public domain.” These include magazines, periodicals and other publications available as subscriptions, publications contained in libraries, information made available at a public conference, meeting, seminar, trade show, or exhibition, and information posted on public Web sites. The final example deems information that is submitted to co-authors, editors, or reviewers or conference organizers for review for publication to be “public domain,” even prior to actual publication. The relevant restrictions do not include copyright protections or generic property rights in the underlying physical medium.

    Paragraph (b) of the revised definition explicitly sets forth the Department's requirement of authorization to release information into the “public domain.” Prior to making available “technical data” or software subject to the ITAR, the U.S. government must approve the release through one of the following: (1) The Department; (2) the Department of Defense's Office of Security Review; (3) a relevant U.S. government contracting authority with authority to allow the “technical data” or software to be made available to the public, if one exists; or (4) another U.S. government official with authority to allow the “technical data” or software to be made available to the public.

    The requirements of paragraph (b) are not new. Rather, they are a more explicit statement of the ITAR's requirement that one must seek and receive a license or other authorization from the Department or other cognizant U.S. government authority to release ITAR controlled “technical data,” as defined in § 120.10. A release of “technical data” may occur by disseminating “technical data” at a public conference or trade show, publishing “technical data” in a book or journal article, or posting “technical data” to the Internet. This proposed provision will enhance compliance with the ITAR by clarifying that “technical data” may not be made available to the public without authorization. Persons who intend to discuss “technical data” at a conference or trade show, or to publish it, must ensure that they obtain the appropriate authorization.

    Information that is excluded from the definition of “defense article” in the new § 120.6(b) is not “technical data” and therefore does not require authorization prior to release into the “public domain.” This includes information that arises during or results from “fundamental research,” as described in the new § 120.49; general scientific, mathematical, or engineering principles commonly taught in schools, and information that is contained in patents.

    The Department also proposes to add a new provision to § 127.1 in paragraph (a)(6) to state explicitly that the further dissemination of “technical data” or software that was made available to the public without authorization is a violation of the ITAR, if, and only if, it is done with knowledge that the “technical data” or software was made publicly available without an authorization described in ITAR § 120.11(b)(2). Dissemination of publicly available “technical data” or software is not an export-controlled event, and does not require authorization from the Department, in the absence of knowledge that it was made publicly available without authorization.

    “Technical data” and software that is made publicly available without proper authorization remains “technical data” or software and therefore remains subject to the ITAR. As such, the U.S. government may advise a person that the original release of the “technical data” or software was unauthorized and put that person on notice that further dissemination would violate the ITAR.

    6. Proposed Definition of Technical Data That Arises During, or Results From, Fundamental Research

    The Department proposes to move “fundamental research” from the definition of “public domain” in ITAR § 120.11(a)(8) and define “technical data that arises during, or results from, fundamental research” in a new ITAR § 120.49. The Department believes that information that arises during, or results from fundamental research is conceptually distinguishable from the information that would be captured in the revised definition of “public domain” that is proposed in this rule. Accordingly, the Department proposes to address this concept with its own definition. The new definition of “technical data that arises during, or results from, fundamental research” is consistent with the prior ITAR § 120.11(a)(8), except that the Department has expanded the scope of eligible research to include research that is funded, in whole or in part, by the U.S. government.

    7. Revised Definition of Export

    The Department proposes to revise the definition of “export” in ITAR § 120.17 to better align with the EAR's revised definition of the term and to remove activities associated with a defense article's further movement or release outside the United States, which will now fall within the definition of “reexport” in § 120.19. The definition is revised to explicitly identify that ITAR §§ 126.16 and 126.17 (exemptions pursuant to the Australia and UK Defense Trade Cooperation Treaties) have their own definitions of “export,” which apply exclusively to those exemptions. It also explicitly references the new § 120.49, “Activities that are Not Exports, Reexports, or Retransfers,” which excludes from ITAR control certain transactions identified therein.

    Paragraph (a)(1) is revised to parallel the definition of “export” in proposed paragraph (a)(1) of § 734.13 of the EAR. Although the wording has changed, the scope of the control is the same. The provision excepting travel outside of the United States by persons whose personal knowledge includes “technical data” is removed, but the central concept is unchanged. The “release” of “technical data” to a foreign person while in the United States or while travelling remains a controlled event.

    Paragraph (a)(2) includes the control listed in the current § 120.17(a)(4) (transfer of technical data to a foreign person). The proposed revisions replace the word “disclosing” with “releasing,” and the paragraph is otherwise revised to parallel proposed paragraph (a)(2) of § 734.13 of the EAR. “Release” is a newly defined concept in § 120.50 that encompasses the previously undefined term “disclose.”

    Paragraph (a)(3) includes the control listed in the current § 120.17(a)(2) (transfer of registration, control, or ownership to a foreign person of an aircraft, vessel, or satellite). It is revised to parallel proposed paragraph (a)(3) of § 734.13 of the EAR.

    Paragraph (a)(4) includes the control listed in the current § 120.17(a)(3) (transfer in the United States to foreign embassies).

    Paragraph (a)(5) maintains the control on performing a “defense service.”

    Paragraph (a)(6) is added for the “release” or transfer of decryption keys, passwords, and other items identified in the new paragraph (a)(5) of the revised definition of “technical data” in § 120.10. This paragraph makes “release” or transfer of information securing “technical data” an “export.” Making the release of decryption keys and other information securing technical data in an inaccessible or unreadable format an export allows the Department to propose that providing someone with encrypted “technical data” would not be an “export,” under certain circumstances. Provision of a decryption key or other information securing “technical data” is an “export” regardless of whether the foreign person has already obtained access to the secured “technical data.” Paragraph (a)(6) of the definitions of export and reexport in this rule and the BIS companion rule present different formulations for this control and the agencies request input from the public on which language more clearly describes the control. The agencies intend, however, that the act of providing physical access to unsecured “technical data” (subject to the ITAR) will be a controlled event. The mere act of providing access to unsecured technology (subject to the EAR) will not, however, be a controlled event unless it is done with “knowledge” that such provision will cause or permit the transfer of controlled “technology” in clear text or “software” to a foreign national.

    Paragraph (a)(7) is added for the release of information to a public network, such as the Internet. This makes more explicit the existing control in (a)(4), which includes the publication of “technical data” to the Internet due to its inherent accessibility by foreign persons. This means that before posting information to the Internet, you should determine whether the information is “technical data.” You should review the USML, and if there is doubt about whether the information is “technical data,” you may request a commodity jurisdiction determination from the Department. If so, a license or other authorization, as described in § 120.11(b), will generally be required to post such “technical data” to the Internet. Posting “technical data” to the Internet without a Department or other authorization is a violation of the ITAR even absent specific knowledge that a foreign national will read the “technical data.”

    Paragraph (b)(1) is added to clarify existing ITAR controls to explicitly state that disclosing “technical data” to a foreign person is deemed to be an “export” to all countries in which the foreign person has held citizenship or holds permanent residency.

    8. Revised Definition of Reexport

    The Department proposes to revise the definition of “reexport” in ITAR § 120.19 to better align with the EAR's revised definition and describe transfers of items subject to the jurisdiction of the ITAR between two foreign countries. The activities identified are the same as those in paragraphs (a)(1) through (4) of the revised definition of “export,” except that the shipment, release or transfer is between two foreign countries or is to a third country national foreign person outside of the United States.

    9. Proposed Definition of Release

    The Department proposes to add § 120.50, the definition of “release.” This term is added to harmonize with the EAR, which has long used the term to cover activities that disclose information to foreign persons. “Release” includes the activities encompassed within the undefined term “disclose.” The activities that are captured include allowing a foreign person to inspect a “defense article” in a way that reveals “technical data” to the foreign persons and oral or written exchanges of “technical data” with a foreign person. The adoption of the definition of “release” does not change the scope of activities that constitute an “export” and other controlled transactions under the ITAR.

    10. Proposed Definition of Retransfer

    The Department proposes to add § 120.51, the definition of “retransfer.” “Retransfer” is moved out of the definition of “reexport” in § 120.19 to better harmonize with the EAR, which controls “exports,” “reexports” and “transfers (in country)” as discrete events. Under this new definition, a “retransfer” occurs with a change of end use or end user within the same foreign territory. Certain activities may fit within the definition of “reexport” and “retransfer,” such as the disclosure of “technical data” to a third country national abroad. Requests for both “reexports” and “retransfers” of “defense articles” will generally be processed through a General Correspondence or an exemption.

    11. Proposed Activities That Are Not Exports, Reexports, or Retransfers

    The Department proposes to add § 120.52 to describe those “activities that are not exports, reexports, or retransfers” and do not require authorization from the Department. It is not an “export” to launch items into space, provide “technical data” or software to U.S. persons while in the United States, or move a “defense article” between the states, possessions, and territories of the United States. The Department also proposes to add a new provision excluding from ITAR licensing requirements the transmission and storage of encrypted “technical data” and software.

    The Department recognizes that ITAR-controlled “technical data” may be electronically routed through foreign servers unbeknownst to the original sender. This presents a risk of unauthorized access and creates a potential for inadvertent ITAR violations. For example, email containing “technical data” may, without the knowledge of the sender, transit a foreign country's Internet service infrastructure en route to its intended and authorized final destination. Any access to this data by a foreign person would constitute an unauthorized “export” under ITAR § 120.17. Another example is the use of mass data storage (i.e., “cloud storage”). In this case, “technical data” intended to be resident in cloud storage may, without the knowledge of the sender, be physically stored on a server or servers located in a foreign country or multiple countries. Any access to this data, even if unintended by the sender, would constitute an “export” under ITAR § 120.17.

    The intent of the proposed ITAR § 120.52(a)(4) is to clarify that when unclassified “technical data” transits through a foreign country's Internet service infrastructure, a license or other approval is not mandated when such “technical data” is encrypted prior to leaving the sender's facilities and remains encrypted until received by the intended recipient or retrieved by the sender, as in the case of remote storage. The encryption must be accomplished in a manner that is certified by the U.S. National Institute for Standards and Technology (NIST) as compliant with the Federal Information Processing Standards Publication 140-2 (FIPS 140-2). Additionally, the Department proposes that the electronic storage abroad of “technical data” that has been similarly encrypted would not require an authorization, so long as it is not stored in a § 126.1 country or in the Russian Federation. This will allow for cloud storage of encrypted data in foreign countries, so long as the “technical data” remains continuously encrypted while outside of the United States.

    12. Revised Exemption for the Export of Technical Data for U.S. Persons Abroad

    The Department proposes to revise § 125.4(b)(9) to better harmonize controls on the “release” of controlled information to U.S. persons abroad and to update the provisions. The most significant update is that foreign persons authorized to receive “technical data” in the United States will be eligible to receive that same “technical data” abroad, when on temporary assignment on behalf of their employer. The proposed revisions clarify that a person going abroad may use this exemption to “export” “technical data” for their own use abroad. The proposed revisions also clarify that the “technical data” must be secured while abroad to prevent unauthorized “release.” It has been long-standing Department practice to hold U.S. persons responsible for the “release” of “technical data” in their possession while abroad. However, given the nature of “technical data” and the proposed exception from licensing for transmission of secured “technical data,” the Department has determined it is necessary to implement an affirmative obligation to secure data while abroad.

    13. Proposed Scope of License

    The Department proposes to add § 123.28 to clarify the scope of a license, in the absence of a proviso, and to state that authorizations are granted based on the information provided by the applicant. This means that while providing false information to the U.S. government as part of the application process for the “export,” “reexport,” or “retransfer” of a “defense article” is a violation of the ITAR, it also may void the license.

    14. Revised Definition of Defense Service

    Proposed revisions of the “defense service” definition were published on April 13, 2011, RIN 1400-AC80 (see “International Traffic in Arms Regulations: Defense Services,” 76 FR 20590) and May 24, 2013 (see 78 FR 31444, RIN 1400-AC80). In those rules, the Department explained its determination that the scope of the current definition is overly broad, capturing certain forms of assistance or services that no longer warrant ITAR control.

    The Department reviewed comments on that first proposed definition and, when the recommended changes added to the clarity of the regulation, the Department accepted them. For the Department's evaluation of those public comments and recommendations regarding the April 13, 2011, proposed rule (the first revision), see 78 FR 31444, May 24, 2013. The Department's evaluation of the written comments and recommendations in response to the May 24, 2013 proposed rule (the second revision) follows.

    Parties commenting on the second revision expressed concern that the definition of “defense service” in paragraph (a)(1) was premised on the use of “other than public domain information.” The observation was made that with the intent of removing from the definition of a “defense service” the furnishing of assistance using “public domain” information, but not basing the assistance on the use of “technical data,” the Department was continuing to require the licensing of activities akin to those that were based on the use of “public domain” information. The Department has fully revised paragraph (a)(1) to remove the use of the “other than public domain information” or “technical data” from the determination of whether an activity is a “defense service.” Furthermore, the Department has added a new provision declaring that the activities described in paragraph (a)(1) are not a “defense service” if performed by a U.S. person or foreign person in the United States who does not have knowledge of U.S.-origin “technical data” directly related to the “defense article” that is the subject of the assistance or training or another “defense article” described in the same USML paragraph prior to performing the service. A note is added to clarify that a person will be deemed to have knowledge of U.S.-origin “technical data” if the person previously participated in the “development” of a “defense article” described in the same USML paragraph, or accessed (physically or electronically) that “technical data.” A note is also added to clarify that those U.S. persons abroad who only received U.S.-origin “technical data” as a result of their activities on behalf of a foreign person are not included within the scope of paragraph (a)(1). A third note is added to clarify that DDTC-authorized foreign person employees in the United States who provide “defense services” on behalf of their U.S. employer are considered to be included with the U.S. employer's authorization, and need not be listed on the U.S. employer's technical assistance agreement or receive a separate authorization for those services. The Department also removed the activities of design, development, and engineering from paragraph (a)(1) and moved them to paragraph (a)(2).

    Commenting parties recommended revising paragraph (a)(1) to remove the provision of “technical data” as a “defense service,” because there are already licensing requirements for the “export” of “technical data.” The Department confirms that it eliminated from the definition of a “defense service” the act of furnishing “technical data” to a foreign person. Such activity still constitutes an “export” and would require an ITAR authorization. New paragraph (a)(1) is concerned with the furnishing of assistance, whereas the “export” of “technical data” alone, without the furnishing of assistance, is not a “defense service.” The “export” of “technical data” requires an authorization (Department of State form DSP-5 or DSP-85) or the use of an applicable exemption.

    Commenting parties recommended the definition be revised to explicitly state that it applies to the furnishing of assistance by U.S. persons, or by foreign persons in the United States. The Department partially accepted this recommendation. However, the Department notes that ITAR § 120.1(c) provides that only U.S. persons and foreign governmental entities in the United States may be granted a license or other approval pursuant to the ITAR, and that foreign persons may only receive a “reexport” or “retransfer” approval or approval for brokering activities. Therefore, approval for the performance of a defense service in the United States by a foreign person must be obtained by a U.S. person, such as an employer, on behalf of the foreign person. Regarding a related recommendation, the Department also notes that the furnishing of a type of assistance described by the definition of a “defense service” is not an activity within the Department's jurisdiction when it is provided by a foreign person outside the United States to another foreign person outside the United States on a foreign “defense article” using foreign-origin “technical data.”

    In response to commenting parties, the Department specified that the examples it provided for activities that are not “defense services” are not exhaustive. Rather, they are provided to answer the more frequent questions the Department receives on the matter. The Department removed these examples from paragraph (b) and included them as a note to paragraph (a).

    A commenting party recommended that paragraphs (a)(5) and (a)(6), regarding the furnishing of assistance in the integration of a spacecraft to a launch vehicle and in the launch failure analysis of a spacecraft or launch vehicle, respectively, be removed, and that those activities be described in the USML categories covering spacecraft and launch vehicles, on the basis that a general definition should not have such program-specific clauses. As discussed in the May 13, 2014 interim final rule revising USML Category XV (79 FR 27180), the Department accepted this recommendation and revised paragraph (f) of USML Category XV and paragraph (i) of USML Category IV accordingly. The revision includes the recommendation of commenting parties to specifically provide that the service must be provided to a foreign person in order for it to be a licensable activity.

    Commenting parties recommended the Department define the term “tactical employment,” so as to clarify what services would be captured by paragraph (a)(3). The Department determined that employment of a “defense article” should remain a controlled event, due to the nature of items now controlled in the revised USML categories. After ECR, those items that remain “defense articles” are the most sensitive and militarily critical equipment that have a significant national security or intelligence application. Allowing training and other services to foreign nationals in the employment of these “defense articles” without a license would not be appropriate. Therefore, the Department removed the word “tactical” and converted the existing exemption for basic operation of a “defense article,” authorized by the U.S. government for “export” to the same recipient, into an exclusion from paragraph (a)(3).

    A commenting party recommended the Department address the instance of the integration or installation of a “defense article” into an item, much as it addressed the instance of the integration or installation of an item into a “defense article.” Previously, the Department indicated this would be the subject of a separate rule, and addressed the “export” of such items in a proposed rule (see 76 FR 13928), but upon review the Department accepted this recommendation, and revised paragraph (a)(2), the note to paragraph (a)(2), and the note to paragraph (a) accordingly. In addition, the Department has changed certain terminology used in the paragraph: instead of referring to the “transfer” of “technical data,” the paragraph is premised on the “use” of “technical data.” This change is consistent with removing from the definition of a “defense service” the furnishing of “technical data” to a foreign person when there is not also the furnishing of assistance related to that “technical data.”

    A commenting party requested clarification of the rationale behind selectively excepting from the “defense services” definition the furnishing of services using “public domain” information. The Department did so in paragraph (a)(1), and now excludes those services performed by U.S. persons who have not previously had access to any U.S. origin “technical data” on the “defense article” being serviced. In contrast, the Department did not do so in paragraphs (a)(2) and (a)(3) and former paragraphs (a)(5) and (a)(6). In the case of paragraph (a)(2), the rationale for not doing so is that the activities involved in the development of a “defense article,” or in integrating a “defense article” with another item, inherently involve the advancement of the military capacity of another country and therefore constitute activities over which the U.S. government has significant national security and foreign policy concerns. To the extent that an activity listed in paragraph (a)(1), such as modification or testing, is done in the “development” of a “defense article,” such activities constitute “development” and are within the scope of paragraph (a)(2). With regard to paragraph (a)(3), the furnishing of assistance (including training) in the employment of a “defense article” is a type of activity that the Department believes warrants control as a “defense service,” due to the inherently military nature of providing training and other services in the employment of a “defense article” (changes to paragraph (a)(3) are described above). The services described in former paragraphs (a)(5) and (a)(6) (and now in USML Categories IV(i) and XV(f)) are pursuant to Public Law 105-261.

    A commenting party recommended limiting paragraph (a)(2) to the integration of ECCN 9A515 and 600 series items into defense articles, saying that the regulations should focus on items subject to the EAR with a military or space focus. The Department's focus with this provision is in fact the “defense article.” Items that are to be integrated with a “defense article,” which may not themselves be defense articles, may be beyond the authority of the Department to regulate. The Department did not accept this recommendation.

    A commenting party recommended limiting the definition of integration to changes in the function of the “defense article,” and to exclude modifications in fit. For the purposes of illustration, this commenting party used one of the examples provided by the Department in the note to paragraph (a)(2): The manufacturer of the military vehicle will need to know the dimensions and electrical requirements of the dashboard radio when designing the vehicle. In this instance, paragraph (a)(2) would not apply, as this example addresses the manufacture of a “defense article,” which is covered by paragraph (a)(1). If the radio to be installed in this vehicle is subject to the EAR, the provision to the manufacturer of information regarding the radio is not within the Department's licensing jurisdiction. In an instance of a service entailing the integration of an item with a “defense article,” where there would be modification to any of the items, the Department believes such assistance would inherently require the use of “technical data.” Therefore, this exclusion would be unacceptably broad. However, the Department has accepted the recommendation to clarify the definition and exclude changes to fit to any of the items involved in the integration activity, provided that such services do not entail the use of “technical data” directly related to the “defense article.” Upon review, changes to fit are not an aspect of integration, which is the “engineering analysis needed to unite a `defense article' and one or more items,” and therefore are not captured in paragraph (a)(2). The modifications of the “defense article” to accommodate the fit of the item to be integrated, which are within the activity covered by installation, are only those modifications to the “defense article” that allow the item to be placed in its predetermined location. Any modifications to the design of a “defense article” are beyond the scope of installation. Additionally, while minor modifications may be made to a “defense article” without the activity being controlled under (a)(2) as an integration activity, all modifications of defense articles, regardless of sophistication, are activities controlled under (a)(1) if performed by someone with prior knowledge of U.S.-origin “technical data.” “Fit” is defined in ITAR § 120.41: “The fit of a commodity is defined by its ability to physically interface or connect with or become an integral part of another commodity” (see, Note 4 to paragraph (b)(3)).

    Commenting parties recommended revising paragraph (a)(2) to provide that such assistance described therein would be a “defense service” only if U.S.-origin “technical data” is exported. The law and regulations do not mandate this limitation. Section 38 of the Arms Export Control Act provides that the President is authorized to control the “export” of defense articles and defense services. The ITAR, in defining “defense article,” “technical data,” and “export,” does not provide the qualifier “U.S.-origin” (see ITAR §§ 120.6, 120.10, and 120.17, respectively). In the instance described by the commenting party, of the integration of a commercial item into a foreign-origin “defense article,” the Department retains jurisdiction when the service is provided by a U.S. person.

    A commenting party recommended revising paragraph (a)(2) so that the paragraph (a)(1) exception of the furnishing of assistance using “public domain” information is not nullified by paragraph (a)(2), as most of the activities described in paragraph (a)(1) involve integration as defined in the note to paragraph (a)(2). The Department believes each of the activities described in paragraphs (a)(1) and (a)(2) are sufficiently well defined to distinguish them one from the other. Therefore, the Department does not agree that paragraph (a)(2) nullifies the intention of paragraph (a)(1), and does not accept this recommendation.

    A commenting party requested clarification that providing an item subject to the EAR for the purposes of integration into a “defense article” is not a “defense service.” The provision of the item in this instance, unaccompanied by assistance in the integration of the item into a “defense article,” is not within the scope of “the furnishing of assistance,” and therefore is not a defense service.

    Commenting parties recommended clarification on whether the servicing of an item subject to the EAR that has been integrated with a “defense article” would be a “defense service.” The Department notes that such activity is not a “defense service,” provides it as an example of what is not a “defense service” in the note to paragraph (a), and also notes that it would be incumbent on the applicant to ensure that in providing this service, “technical data” directly related to the “defense article” is not used.

    Commenting parties expressed concern over the potential negative effect of paragraph (a)(2) and the definition in general on university-based educational activities and scientific communication, and recommended clarification of the relationship between the definition of “defense services” and the exemption for the “export” of “technical data” at ITAR § 125.4(b)(10). Disclosures of “technical data” to foreign persons who are bona-fide and full time regular employees of universities continue to be exports for which ITAR § 125.4(b)(10) is one licensing exemption. The Department believes that, in most cases, the normal duties of a university employee do not encompass the furnishing of assistance to a foreign person, in the activities described in paragraph (a). Therefore, in the context of employment with the university, the Department does not perceive that the foreign person's use of the “technical data” would be described by ITAR § 120.9(a)(2), or any part of paragraph (a).

    In response to the recommendation of one commenting party, the Department added a note clarifying that the installation of an item into a “defense article” is not a “defense service,” provided no “technical data” is used in the rendering of the service.

    A commenting party recommended clarification of the licensing process for the “export” of an EAR 600 series item that is to be integrated into a “defense article.” The Department of Commerce has “export” authority over the 600 series item, and the exporter must obtain a license from the Department of Commerce, if necessary. The exporter must also obtain an approval from the Department of State to provide any “defense service,” including integration assistance pursuant to paragraph (a)(2).

    A commenting party recommended removing “testing” as a type of “defense service,” stating it was not included in the definition of “organizational-level maintenance.” In including testing as part of the former definition but not of the latter, the Department does not perceive an inconsistency or conflict. To the extent that certain testing is within the definition of organization-level maintenance, that testing is explicitly excluded, as organizational-level maintenance is not covered under the definition of a “defense service.” However, all other testing remains a “defense service.” The Department intends for the furnishing of assistance to a foreign person, whether in the United States or abroad, in the testing of defense articles to be an activity requiring Department approval under the conditions of paragraph (a)(1). The Department did not accept this recommendation.

    Commenting parties provided recommendations for revising the definitions of “public domain” information and “technical data.” Those definitions are proposed in this rule as well. To the extent that evaluation of the proposed changes to “defense services” hinges on these terms, the Department invites commenting parties to submit analyses of the impact of these revised definitions on the revised “defense service” definition in this proposed rule.

    Commenting parties recommended clarification of the regulation regarding the furnishing of assistance and training in organizational-level (basic-level) maintenance. The Department harmonized paragraph (a)(1) and the example regarding organizational-level maintenance by revising the Note to Paragraph (a), which sets forth activities that are not “defense services,” so that it specifically provides that “the furnishing of assistance (including training) in organizational-level (basic-level) maintenance of a defense article” is an example of an activity that is not a defense service.

    In response to commenting parties, the Department clarifies that the example of employment by a foreign person of a natural U.S. person as not constituting a “defense service” is meant to address, among other scenarios, the instance where such a person is employed by a foreign defense manufacturer, but whose employment in fact does not entail the furnishing of assistance as described in ITAR § 120.9(a). By “natural person,” the Department means a human being, as may be inferred from the definition of “person” provided in ITAR § 120.14.

    In response to the recommendation of a commenting party, the Department confirms that, as stated in a Department of Commerce notice, “Technology subject to the EAR that is used with technical data subject to the ITAR that will be used under the terms of a Technical Assistance Agreement (TAA) or Manufacturing License Agreement (MLA) and that would otherwise require a license from [the Department of Commerce] may all be exported under the TAA or MLA” (see 78 FR 22660). In DDTC publication Guidelines for Preparing Electronic Agreements (Revision 4.2), Section 20.1.d., the following conditions are stipulated: The technology subject to the EAR will be used with “technical data” subject to the ITAR and described in the agreement, and the technology subject to the EAR will be used under the terms of a TAA or MLA (see http://www.pmddtc.state.gov/licensing/agreement.html).

    Request for Comments

    The Department invites public comment on any of the proposed definitions set forth in this rulemaking. With respect to the revisions to ITAR § 120.17, the Department recognizes the increasingly complex nature of telecommunications infrastructure and the manner in which data is transmitted, stored, and accessed, and accordingly seeks public comment with special emphasis on: (1) How adequately the proposed regulations address the technical aspects of data transmission and storage; (2) whether the proposed regulations mitigate unintended or unauthorized access to transmitted or stored data; and (3) whether the proposed regulations impose an undue financial or compliance burden on the public.

    The public is also asked to comment on the effective date of the final rule. Export Control Reform rules that revised categories of the USML and created new 600 series ECCN have had a six-month delayed effective date to allow for exporters to update the classification of their items. In general, rules effecting export controls have been effective on the date of publication, due to the impact on national security and foreign policy. As this proposed rule and the companion proposed rule from the Bureau of Industry and Security revise definitions within the ITAR and the EAR and do not make any changes to the USML or CCL, the Department proposes (should the proposed rule be adopted) a 30-day delayed effective date to allow exporters to ensure continued compliance.

    Regulatory Analysis and Notices Administrative Procedure Act

    The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the U.S. government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this proposed rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 60-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.

    Regulatory Flexibility Act

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

    Unfunded Mandates Reform Act of 1995

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

    Small Business Regulatory Enforcement Fairness Act of 1996

    For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (the “Act”), a major rule is a rule that the Administrator of the OMB Office of Information and Regulatory Affairs finds has resulted or is likely to result in: (1) An annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and foreign markets.

    The Department does not believe this rulemaking will have an annual effect on the economy of $100,000,000 or more, nor will it result in a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions, or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and foreign markets. The proposed means of solving the issue of data protection are both familiar to and extensively used by the affected public in protecting sensitive information.

    Executive Orders 12372 and 13132

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

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). The executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the proposed rule has been reviewed by the Office of Management and Budget (OMB).

    Executive Order 12988

    The Department of State has reviewed the proposed amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

    Executive Order 13175

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

    Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35; however, the Department of State seeks public comment on any unforeseen potential for increased burden.

    List of Subjects 22 CFR 120 and 125

    Arms and munitions, Classified information, Exports.

    22 CFR 123

    Arms and munitions, Exports, Reporting and recordkeeping requirements.

    22 CFR Part 127

    Arms and munitions, Exports, Crime, Law, Penalties, Seizures and forfeitures.

    Accordingly, for the reasons set forth above, title 22, chapter I, subchapter M, parts 120, 123, 125, and 127 are proposed to be amended as follows:

    PART 120—PURPOSE AND DEFINITIONS 1. The authority citation for part 120 continues to read as follows: Authority:

    Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    2. Section 120.6 is amended by designating the current text as paragraph (a), revising the first sentence of newly designated paragraph (a), and adding paragraph (b) to read as follows:
    § 120.6 Defense article.

    (a) Defense article means any item, software, or technical data designated in § 121.1 of this subchapter. * * *

    (b) The following are not defense articles and thus not subject to the ITAR:

    (1) [Reserved]

    (2) [Reserved]

    (3) Information and software that:

    (i) Are in the public domain, as described in § 120.11;

    (ii) Arise during, or result from, fundamental research, as described in § 120.46;

    (iii) Concern general scientific, mathematical, or engineering principles commonly taught in schools, and released by instruction in a catalog course or associated teaching laboratory of an academic institution; or

    (iv) Appear in patents or open (published) patent applications available from or at any patent office, unless covered by an invention secrecy order.

    Note to paragraph (b):

    Information that is not within the scope of the definition of technical data (see § 120.10) and not directly related to a defense article, or otherwise described on the USML, is not subject to the ITAR.

    3. Section 120.9 is revised to read as follows:
    § 120.9 Defense service.

    (a) Defense service means:

    (1) The furnishing of assistance (including training) to a foreign person (see § 120.16), whether in the United States or abroad, in the production, assembly, testing, intermediate- or depot-level maintenance (see § 120.38), modification, demilitarization, destruction, or processing of a defense article (see § 120.6), by a U.S. person or foreign person in the United States, who has knowledge of U.S.-origin technical data directly related to the defense article that is the subject of the assistance, prior to performing the service;

    Note 1 to paragraph (a)(1):

    “Knowledge of U.S.-origin technical data” for purposes of paragraph (a)(1) can be established based on all the facts and circumstances. However, a person is deemed to have “knowledge of U.S.-origin technical data” directly related to a defense article if the person participated in the development of a defense article described in the same USML paragraph or accessed (physically or electronically) technical data directly related to the defense article that is the subject of the assistance, prior to performing the service.

    Note 2 to paragraph (a)(1):

    U.S. persons abroad who only receive U.S.-origin technical data as a result of their activities on behalf of a foreign person are not included within paragraph (a)(1).

    Note 3 to paragraph (a)(1):

    Foreign person employees in the United States providing defense services as part of Directorate of Defense Trade Controls-authorized employment need not be listed on the U.S. employer's technical assistance agreement or receive separate authorization to perform defense services on behalf of their authorized U.S. employer.

    (2) The furnishing of assistance (including training) to a foreign person (see § 120.16), whether in the United States or abroad, in the development of a defense article, or the integration of a defense article with any other item regardless of whether that item is subject to the ITAR or technical data is used;

    Note to paragraph (a)(2):

    “Integration” means any engineering analysis (see § 125.4(c)(5) of this subchapter) needed to unite a defense article and one or more items. Integration includes the introduction of software to enable operation of a defense article, and the determination during the design process of where an item will be installed (e.g., integration of a civil engine into a destroyer that requires changes or modifications to the destroyer in order for the civil engine to operate properly; not plug and play). Integration is distinct from “installation.” Installation means the act of putting an item in its predetermined place without the use of technical data or any modifications to the defense article involved, other than to accommodate the fit of the item with the defense article (e.g., installing a dashboard radio into a military vehicle where no modifications (other than to accommodate the fit of the item) are made to the vehicle, and there is no use of technical data.). The “fit” of an item is defined by its ability to physically interface or connect with or become an integral part of another item. (see § 120.41).

    (3) The furnishing of assistance (including training) to a foreign person (see § 120.16), regardless of whether technical data is used, whether in the United States or abroad, in the employment of a defense article, other than basic operation of a defense article authorized by the U.S. government for export to the same recipient;

    (4) Participating in or directing combat operations for a foreign person (see § 120.16), except as a member of the regular military forces of a foreign nation by a U.S. person who has been drafted into such forces; or

    (5) The furnishing of assistance (including training) to the government of a country listed in § 126.1 of this subchapter in the development, production, operation, installation, maintenance, repair, overhaul or refurbishing of a defense article or a part component, accessory or attachments specially designed for a defense article.

    Note to paragraph (a):

    The following are examples of activities that are not defense services:

    1. The furnishing of assistance (including training) in organizational-level (basic-level) maintenance (see § 120.38) of a defense article;

    2. Performance of services by a U.S. person in the employment of a foreign person, except as provided in this paragraph;

    3. Servicing of an item subject to the EAR (see § 120.42) that has been integrated or installed into a defense article, or the servicing of an item subject to the EAR into which a defense article has been installed or integrated, without the use of technical data, except as described in paragraph (a)(5) of this section;

    4. The installation of any item into a defense article, or the installation of a defense article into any item;

    5. Providing law enforcement, physical security, or personal protective services (including training and advice) to or for a foreign person (if such services necessitate the export of a defense article a license or other approval is required for the export of the defense article, and such services that entail the employment or training in the employment of a defense article are addressed in paragraph (a)(3) of this section);

    6. The furnishing of assistance by a foreign person not in the United States;

    7. The furnishing of medical, logistical (other than maintenance), translation, financial, legal, scheduling, or administrative services;

    8. The furnishing of assistance by a foreign government to a foreign person in the United States, pursuant to an arrangement with the Department of Defense; and

    9. The instruction in general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities.

    (b) [Reserved]

    4. Section 120.10 is revised to read as follows:
    § 120.10 Technical data.

    (a) Technical data means, except as set forth in paragraph (b) of this section:

    (1) Information required for the development (see § 120.47) (including design, modification, and integration design), production (see § 120.48) (including manufacture, assembly, and integration), operation, installation, maintenance, repair, overhaul, or refurbishing of a defense article. Technical data may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, electronic media or information gleaned through visual inspection;

    Note to paragraph (a)(1):

    The modification of an existing item creates a new item and technical data for the modification is technical data for the development of the new item.

    (2) Information enumerated on the USML (i.e., not controlled pursuant to a catch-all USML paragraph);

    (3) Classified information for the development, production, operation, installation, maintenance, repair, overhaul, or refurbishing of a defense article or a 600 series item subject to the EAR;

    (4) Information covered by an invention secrecy order; or

    (5) Information, such as decryption keys, network access codes, or passwords, that would allow access to other technical data in clear text or software (see § 127.1(b)(4) of this subchapter).

    (b) Technical data does not include:

    (1) Non-proprietary general system descriptions;

    (2) Information on basic function or purpose of an item; or

    (3) Telemetry data as defined in note 3 to USML Category XV(f) (see § 121.1 of this subchapter).

    5. Section 120.11 is revised to read as follows:
    § 120.11 Public domain.

    (a) Except as set forth in paragraph (b) of this section, unclassified information and software are in the public domain, and are thus not technical data or software subject to the ITAR, when they have been made available to the public without restrictions upon their further dissemination such as through any of the following:

    (1) Subscriptions available without restriction to any individual who desires to obtain or purchase the published information;

    (2) Libraries or other public collections that are open and available to the public, and from which the public can obtain tangible or intangible documents;

    (3) Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public;

    (4) Public dissemination (i.e., unlimited distribution) in any form (e.g., not necessarily in published form), including posting on the Internet on sites available to the public; or

    (5) Submission of a written composition, manuscript or presentation to domestic or foreign co-authors, editors, or reviewers of journals, magazines, newspapers or trade publications, or to organizers of open conferences or other open gatherings, with the intention that the compositions, manuscripts, or publications will be made publicly available if accepted for publication or presentation.

    (b) Technical data or software, whether or not developed with government funding, is not in the public domain if it has been made available to the public without authorization from:

    (1) The Directorate of Defense Trade Controls;

    (2) The Department of Defense's Office of Security Review;

    (3) The relevant U.S. government contracting entity with authority to allow the technical data or software to be made available to the public; or

    (4) Another U.S. government official with authority to allow the technical data or software to be made available to the public.

    Note 1 to § 120.11:

    Section 127.1(a)(6) of this subchapter prohibits, without written authorization from the Directorate of Defense Trade Controls, U.S. and foreign persons from exporting, reexporting, retransfering, or otherwise making available to the public technical data or software if such person has knowledge that the technical data or software was made publicly available without an authorization described in paragraph (b) of this section.

    Note 2 to § 120.11:

    An export, reexport, or retransfer of technical data or software that was made publicly available by another person without authorization is not a violation of this subchapter, except as described in § 127.1(a)(6) of this subchapter.

    6. Section 120.17 is revised to read as follows:
    § 120.17 Export.

    (a) Except as set forth in § 120.52, § 126.16, or § 126.17 of this subchapter, export means:

    (1) An actual shipment or transmission out of the United States, including the sending or taking of a defense article outside of the United States in any manner;

    (2) Releasing or otherwise transferring technical data or software (source code or object code) to a foreign person in the United States (a “deemed export”);

    (3) Transferring by a person in the United States of registration, control, or ownership of any aircraft, vessel, or satellite subject to the ITAR to a foreign person;

    (4) Releasing or otherwise transferring a defense article to an embassy or to any agency or subdivision of a foreign government, such as a diplomatic mission, in the United States;

    (5) Performing a defense service on behalf of, or for the benefit of, a foreign

    person, whether in the United States or abroad;

    (6) Releasing or otherwise transferring information, such as decryption keys, network access codes, passwords, or software, or providing physical access, that would allow access to other technical data in clear text or software to a foreign person regardless of whether such data has been or will be transferred; or

    (7) Making technical data available via a publicly available network (e.g., the Internet).

    (b) Any release in the United States of technical data or software to a foreign person is a deemed export to all countries in which the foreign person has held citizenship or holds permanent residency.

    7. Section 120.19 is revised to read as follows:
    § 120.19 Reexport.

    (a) Except as set forth in § 120.52, reexport means:

    (1) An actual shipment or transmission of a defense article from one foreign country to another foreign country, including the sending or taking of a defense article to or from such countries in any manner;

    (2) Releasing or otherwise transferring technical data or software to a foreign person of a country other than the foreign country where the release or transfer takes place (a “deemed reexport”);

    (3) Transferring by a person outside of the United States of registration, control, or ownership of any aircraft, vessel, or satellite subject to the ITAR to a foreign person outside the United States; or

    (4) Releasing or otherwise transferring outside of the United States information, such as decryption keys, network access codes, password, or software, or providing physical access, that would allow access to other technical data in clear text or software to a foreign person regardless of whether such data has been or will be transferred.

    (b) [Reserved]

    § 120.41 [Amended]
    8. Section 120.41 is amended by reserving Note 1 to paragraph (b)(3) and Note 2 to paragraph (b)(3). 9. Section 120.46 is added to read as follows:
    § 120.46 Required.

    (a) As applied to technical data, the term required refers to only that portion of technical data that is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions. Such required technical data may be shared by different products.

    Note 1 to paragraph (a):

    The references to “characteristics” and functions” are not limited to entries on the USML that use specific technical parameters to describe the scope of what is controlled. The “characteristics” and “functions” of an item listed are, absent a specific regulatory definition, a standard dictionary's definition of the item. For example, USML Category VIII(a)(1) controls aircraft that are “bombers.” No performance level is identified in the entry, but the characteristic of the aircraft that is controlled is that it is a bomber. Thus, any technical data, regardless of significance, peculiar to making an aircraft a bomber as opposed to, for example, an aircraft controlled under ECCN 9A610.a or ECCN 9A991.a, would be technical data required for a bomber and thus controlled under USML Category VIII(i).

    Note 2 to paragraph (a):

    The ITAR and the EAR often divide within each set of regulations or between each set of regulations:

    1. Controls on parts, components, accessories, attachments, and software; and

    2. Controls on the end items, systems, equipment, or other items into which those parts, components, accessories, attachments, and software are to be installed or incorporated.

    With the exception of technical data specifically enumerated on the USML, the jurisdictional status of unclassified technical data is the same as the jurisdictional status of the defense article or item subject to the EAR to which it is directly related. Thus, if technology is directly related to the production of an ECCN 9A610.x aircraft component that is to be integrated or installed in a USML Category VIII(a) aircraft, the technology is controlled under ECCN 9E610, not USML Category VIII(i).

    Note 3 to paragraph (a):

    Technical data is “peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions” if it is used in or for use in the development (including design, modification, and integration design), production (including manufacture, assembly, and integration), operation, installation, maintenance, repair, overhaul, or refurbishing of a defense article unless:

    1. The Department of State has determined otherwise in a commodity jurisdiction determination;

    2. [Reserved];

    3. It is identical to information used in or with a commodity or software that:

    i. Is or was in production (i.e., not in development); and

    ii. Is not a defense article;

    4. It was or is being developed with knowledge that it is for or would be for use in or with both defense articles and commodities not on the U.S. Munitions List; or

    5. It was or is being developed for use in or with general purpose commodities or software (i.e., with no knowledge that it would be for use in or with a particular commodity).

    (b) [Reserved]

    10. Section 120.47 is added to read as follows:
    § 120.47 Development.

    Development is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, and layouts. Development includes modification of the design of an existing item.

    11. Section 120.48 is added to read as follows:
    § 120.48 Production.

    Production means all production stages, such as product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance. This includes “serial production” where commodities have passed production readiness testing (i.e., an approved, standardized design ready for large scale production) and have been or are being produced on an assembly line for multiple commodities using the approved, standardized design.

    12. Section 120.49 is added to read as follows:
    § 120.49 Technical data that arises during, or results from, fundamental research.

    (a) Technical Data arising during, or resulting from, fundamental research. Unclassified information that arises during, or results from, fundamental research and is intended to be published is not technical data when the research is:

    (1) Conducted in the United States at an accredited institution of higher learning located; or

    (2) Funded, in whole or in part, by the U.S. government.

    Note 1 to paragraph (a):

    The inputs used to conduct fundamental research, such as information, equipment, or software, are not “technical data that arises during or results from fundamental research” except to the extent that such inputs are technical data that arose during or resulted from earlier fundamental research.

    Note 2 to paragraph (a):

    There are instances in the conduct of research, whether fundamental, basic, or applied, where a researcher, institution, or company may decide to restrict or protect the release or publication of technical data contained in research results. Once a decision is made to maintain such technical data as restricted or proprietary, the technical data becomes subject to the ITAR.

    (b) Prepublication review. Technical data that arises during, or results from, fundamental research is intended to be published to the extent that the researchers are free to publish the technical data contained in the research without any restriction or delay, including U.S. government-imposed access and dissemination controls or research sponsor proprietary information review.

    Note 1 to paragraph (b):

    Although technical data arising during or resulting from fundamental research is not considered “intended to be published” if researchers accept restrictions on its publication, such technical data will nonetheless qualify as technical data arising during or resulting from fundamental research once all such restrictions have expired or have been removed.

    Note 2 to paragraph (b):

    Research that is voluntarily subjected to U.S. government prepublication review is considered intended to be published for all releases consistent with any resulting controls.

    Note 3 to paragraph (b):

    Technical data resulting from U.S. government funded research which is subject to government-imposed access and dissemination or other specific national security controls qualifies as technical data resulting from fundamental research, provided that all government-imposed national security controls have been satisfied.

    (c) Fundamental research definition. Fundamental research means basic or applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community. This is distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

    (1) Basic research means experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective.

    (2) Applied research means the effort that:

    (i) Normally follows basic research, but may not be severable from the related basic research;

    (ii) Attempts to determine and exploit the potential of scientific discoveries or improvements in technology, materials, processes, methods, devices, or techniques; and

    (iii) Attempts to advance the state of the art.

    13. Section 120.50 is added to read as follows:
    § 120.50 Release.

    (a) Except as set forth in § 120.52, technical data and software are released through:

    (1) Visual or other inspection by foreign persons of a defense article that reveals technical data or software to a foreign person; or

    (2) Oral or written exchanges with foreign persons of technical data in the United States or abroad.

    (b) [Reserved]

    14. Section 120.51 is added to read as follows:
    § 120.51 Retransfer.

    Except as set forth in § 120.52 of this subchapter, a retransfer is a change in end use or end user of a defense article within the same foreign country.

    15. Section 120.52 is added to read as follows:
    § 120.52 Activities that are not exports, reexports, or retransfers.

    (a) The following activities are not exports, reexports, or retransfers:

    (1) Launching a spacecraft, launch vehicle, payload, or other item into space;

    (2) While in the United States, releasing technical data or software to a U.S. person;

    (3) Shipping, moving, or transferring defense articles between or among the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands or any territory, dependency, or possession of the United States as listed in Schedule C, Classification Codes and Descriptions for U.S. Export Statistics, issued by the Bureau of the Census; and

    (4) Sending, taking, or storing technical data or software that is:

    (i) Unclassified;

    (ii) Secured using end-to-end encryption;

    (iii) Secured using cryptographic modules (hardware or software) compliant with the Federal Information Processing Standards Publication 140-2 (FIPS 140-2) or its successors, supplemented by software implementation, cryptographic key management and other procedures and controls that are in accordance with guidance provided in current U.S. National Institute for Standards and Technology publications; and

    (iv) Not stored in a country proscribed in § 126.1 of this subchapter or the Russian Federation.

    (b) For purposes of this section, end-to-end encryption means the provision of uninterrupted cryptographic protection of data between an originator and an intended recipient, including between an individual and himself or herself. It involves encrypting data by the originating party and keeping that data encrypted except by the intended recipient, where the means to access the data in unencrypted form is not given to any third party, including to any Internet service provider, application service provider or cloud service provider.

    (c) The ability to access technical data or software in encrypted form that satisfies the criteria set forth in paragraph (a)(4) of this section does not constitute the release or export of such technical data or software.

    Note to § 120.52:

    See § 127.1 of this subchapter for prohibitions on the release or transfer of technical data or software, in any form, to any person with knowledge that a violation will occur.

    PART 123—LICENSES FOR THE EXPORT AND TEMPORARY IMPORT OF DEFENSE ARTICLES 16. The authority citation for part 123 continues to read as follows: Authority:

    Secs. 2, 38, and 71, 90, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105-261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-228; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    17. Section 123.28 is added to read as follows:
    § 123.28 Scope of a license.

    Unless limited by a condition set out in a license, the export, reexport, retransfer, or temporary import authorized by a license is for the item(s), end-use(s), and parties described in the license application and any letters of explanation. DDTC grants licenses in reliance on representations the applicant made in or submitted in connection with the license application, letters of explanation, and other documents submitted.

    PART 124—AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE SERVICES 18. The authority citation for part 124 continues to read as follows: Authority:

    Secs. 2, 38, and 71, 90, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776; Section 1514, Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    19. Section 124.1 is amended by adding paragraph (e) to read as follows:
    § 124.1 Manufacturing license agreements and technical assistance agreements.

    (e) Unless limited by a condition set out in an agreement, the export, reexport, retransfer, or temporary import authorized by a license is for the item(s), end-use(s), and parties described in the agreement, license, and any letters of explanation. DDTC approves agreements and grants licenses in reliance on representations the applicant made in or submitted in connection with the agreement, letters of explanation, and other documents submitted.

    PART 125—LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED DEFENSE ARTICLES 20. The authority citation for part 125 continues to read as follows: Authority:

    Secs. 2 and 38, 90, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.

    21. Section 125.4 is amended by revising paragraph (b)(9) to read as follows:
    § 125.4 Exemptions of general applicability.

    (b) * * *

    (9) Technical data, including classified information, regardless of media or format, exported by or to a U.S. person or a foreign person employee of a U.S. person, travelling or on temporary assignment abroad subject to the following restrictions:

    (i) Foreign persons may only export or receive such technical data as they are authorized to receive through a separate license or other approval.

    (ii) The technical data exported under this authorization is to be possessed or used solely by a U.S. person or authorized foreign person and sufficient security precautions must be taken to prevent the unauthorized release of the technology. Such security precautions include encryption of the technical data, the use of secure network connections, such as virtual private networks, the use of passwords or other access restrictions on the electronic device or media on which the technical data is stored, and the use of firewalls and other network security measures to prevent unauthorized access.

    (iii) The U.S. person is an employee of the U.S. government or is directly employed by a U.S. person and not by a foreign subsidiary.

    (iv) Technical data authorized under this exception may not be used for foreign production purposes or for defense services unless authorized through a license or other approval.

    (v) The U.S. employer of foreign persons must document the use of this exemption by foreign person employees, including the reason that the technical data is needed by the foreign person for their temporary business activities abroad on behalf of the U.S. person.

    (vi) Classified information is sent or taken outside the United States in accordance with the requirements of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case such guidance must be followed).

    PART 127—VIOLATIONS AND PENALTIES 22. The authority citation for part 127 continues to read as follows: Authority:

    Sections 2, 38, and 42, 90, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22 U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129.

    23. Section 127.1 is amended by adding paragraphs (a)(6) and (b)(4) to read as follows:
    § 127.1 Violations.

    (a) * * *

    (6) To export, reexport, retransfer, or otherwise make available to the public technical data or software if such person has knowledge that the technical data or software was made publicly available without an authorization described in § 120.11(b) of this subchapter.

    (b) * * *

    (4) To release or otherwise transfer information, such as decryption keys, network access codes, or passwords, that would allow access to other technical data in clear text or to software that will result, directly or indirectly, in an unauthorized export, reexport, or retransfer of the technical data in clear text or software. Violation of this provision will constitute a violation to the same extent as a violation in connection with the export of the controlled technical data or software.

    Dated: May 20, 2015. Rose E. Gottemoeller, Under Secretary, Arms Control and International Security, Department of State.
    [FR Doc. 2015-12844 Filed 6-2-15; 8:45 am] BILLING CODE 4710-25-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Parts 91 and 576 [Docket No. FR-5474-N-02] RIN 2506-AC29 Emergency Solutions Grants (ESG) Program, Solicitation of Comment on Specific Issues AGENCY:

    Office of the Assistant Secretary for Community Planning and Development, HUD.

    ACTION:

    Regulatory review; request for comments.

    SUMMARY:

    On December 5, 2011, HUD published an interim rule entitled “Homeless Emergency Assistance and Rapid Transition to Housing: Emergency Solutions Grants Program and Consolidated Plan Conforming Amendments” (interim rule). The comment period for the interim rule ended on February 3, 2012. Because recipients and subrecipients have now had more experience implementing the interim rule, HUD recognizes that they may have additional input and comments for HUD to consider in its development of the ESG final rule (final rule). Therefore, this document takes comments for 60 days to allow additional time for public input, and for HUD to solicit specific comment on certain issues.

    DATES:

    Comment due date: August 3, 2015.

    ADDRESSES:

    Interested persons are invited to submit comments responsive to this request for information to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-7000. Communications must refer to the above docket number and title and should contain the information specified in the “Request for Comments” of this notice.

    Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by interested members of the public. Commenters should follow instructions provided on that site to submit comments electronically.

    Submission of Hard Copy Comments. Comments may be submitted by mail or hand delivery. To ensure that the information is fully considered by all of the reviewers, each commenter submitting hard copy comments, by mail or hand delivery, should submit comments or requests to the address above, addressed to the attention of the Regulations Division. Due to security measures at all federal agencies, submission of comments or requests by mail often result in delayed delivery. To ensure timely receipt of comments, HUD recommends that any comments submitted by mail be submitted at least 2 weeks in advance of the public comment deadline. All hard copy comments received by mail or hand delivery are a part of the public record and will be posted to http://www.regulations.gov without change.

    Note:

    To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.

    No Facsimile Comments. Facsimile (fax) comments are not acceptable.

    Public Inspection of Comments. All comments submitted to HUD regarding this notice will be available, without charge, for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the documents must be scheduled by calling the Regulation Division at 202-708-3055 (this is not a toll-free number). Copies of all comments submitted will also be available for inspection and downloading at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Norm Suchar, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7262, Washington, DC 20410-7000, telephone number (202) 708-4300 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    I. Introduction A. Background 1. Reasons for Re-Opening Public Comment Period

    The Homeless Emergency Assistance and Rapid Transition to Housing Act of 2009 (HEARTH Act) (Division B of Pub. L. 111-22), enacted into law on May 20, 2009, amended the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11371 et seq.) (McKinney-Vento Act) to consolidate the following homeless programs—the Supportive Housing Program, the Shelter Plus Care program, and Moderate Rehabilitation Single Room Occupancy program—into a single program, the Continuum of Care Program. The HEARTH Act also revised the Emergency Shelter Grants program and renamed it the Emergency Solutions Grants (ESG) program, which is the subject of this notice.

    The HEARTH Act broadened the emergency shelter and homelessness prevention activities of the Emergency Solutions Grants program beyond those of its predecessor program, the Emergency Shelter Grants program, and added short- and medium-term rental assistance and services to rapidly re-house persons experiencing homelessness. The change in the program's name reflects the change in the program's focus from addressing the needs of homeless people in emergency or transitional shelters to assisting people to quickly regain stability in permanent housing after experiencing a housing crisis or becoming homeless.

    On December 5, 2011, at 76 FR 75954, HUD published an interim rule for ESG entitled “Homeless Emergency Assistance and Rapid Transition to Housing: Emergency Solutions Grants Program and Consolidated Plan Conforming Amendments.” 1 The interim rule revised the regulations for the Emergency Shelter Grants Program by establishing the new requirements for the Emergency Solutions Grants Program at 24 CFR part 576 and making corresponding amendments to HUD's Consolidated Plan regulations at 24 CFR part 91.

    1 It is available at the following link: https://www.hudexchange.info/resource/1927/hearth-esg-program-and-consolidated-plan-conforming-amendments.

    The interim rule took effect on January 4, 2012, and the public comment period for the interim rule ended on February 3, 2012. HUD has carefully reviewed all comments received in response to the interim rule. However, since the issuance of the interim rule, communities have gained valuable experience implementing the Emergency Solutions Grants (ESG) program, and HUD has been working with and hearing from ESG recipients, ESG subrecipients, Continuums of Care (CoCs), interest and advocacy groups, and other stakeholders to gather information about this experience. As is the case with any new program, ESG recipients and subrecipients have raised questions and issues about various components of the interim rule. HUD appreciates the questions and feedback provided to date, and consequently has decided to re-open the public comment period on the interim rule for the purpose of seeking broader input on implementation of the interim rule, before HUD makes final decisions for the final rule. In fact, HUD is raising many of the issues for consideration in this notice in order to be able to more clearly establish in the final rule what is or is not eligible and what the limitations are with ESG funds, in many cases based on recipient or subrecipient feedback. This notice offers an opportunity for ESG recipients and subrecipients, the public, and all interested parties to provide their feedback about particular issues in the interim rule.

    Re-opening public comment period for the interim rule supports HUD's goals of increasing public access to and participation in developing HUD regulations and other related documents, and promoting more efficient and effective rulemaking through public involvement.

    2. Statutory and Regulatory Changes Affecting the ESG Program

    Since HUD issued the ESG interim rule, the following significant statutory or regulatory changes have occurred or are in progress, which will impact the ESG program:

    a. MAP-21. On July 18, 2012, President Obama signed into law the “Moving Ahead for Progress in the 21st Century Act” (MAP-21) (Pub. L. 112-141, 126 Stat. 405), which changed the program requirements in the following four areas:

    • Changed the applicable environmental review requirements from 24 CFR part 50 back to part 58.

    • Defined the term “local government” to include an instrumentality of a unit of general purpose local government (other than a public housing agency) to act on behalf of the local government with regard to ESG activities, and to include a combination of general purpose local governments.

    • Defined the term “State” to include an instrumentality of a State to act on behalf of the State with regard to ESG activities.

    • Allowed a metropolitan city and urban county that each receive an ESG allocation and are in the same Continuum of Care (CoC) to receive a joint allocation of ESG funds.

    HUD's ESG final rule will incorporate these statutory changes, which are in effect now. Later in this notice, HUD seeks comment on specifics related to implementing joint allocations and instrumentalities.

    b. VAWA 2013. The Violence Against Women Reauthorization Act (VAWA) of 2013 (Pub. L. 113-4, 127 Stat. 54) was enacted on March 7, 2013. On August 6, 2013, at 78 FR 47717, HUD issued a Federal Register notice that provided an overview of the applicability of VAWA 2013 to HUD programs. This notice listed the HUD programs—including the ESG program—that VAWA 2013 added to the list of covered programs, described the changes that VAWA 2013 made to existing VAWA protections, and identified certain issues for which HUD specifically sought public comment. VAWA will be implemented through notice and comment rulemaking and a proposed rule was published in the Federal Register on April 1, 2015. However, the core protections of VAWA—not denying or terminating assistance to victims of domestic violence and expanding the VAWA protections to victims of sexual assault—are in effect, and do not require notice and comment rulemaking for compliance. Recipients and subrecipients should proceed to comply with the basic VAWA protections, and HUD's program offices have advised program participants of the immediate applicability of the core protections.2 The ESG regulations will reflect all applicable VAWA protections following promulgation of a VAWA final rule.

    2 Listserv message from HUD's Office of Special Needs Assistance Programs, at https://www.hudexchange.info/news/reauthorization-of-the-violence-against-women-act-vawa.

    c. OMB OmniCircular. On December 26, 2013, at 78 FR 78590, the Office of Management and Budget (OMB) issued final guidance on administrative costs, cost principles and audit requirements for federal awards. This final guidance supersedes and streamlines requirements from OMB Circulars A-21, A-87, A-110, and A-122 and Circulars A-89, A-102, and A-133. OMB has finalized the guidance in Title 2 of the Code of Federal Regulations (CFR). OMB charged federal agencies with adopting the policies and procedures in the final guidance by December 26, 2014. HUD is in the process of adopting such guidance in regulation and, when adopted, the ESG regulations will cross-reference to the applicable regulations addressing these award requirements.

    d. Equal Access rule. The “Equal Access to Housing in HUD Programs—Regardless of Sexual Orientation or Gender Identity” final rule (77 FR 5662) was published on February 3, 2012. It amends 24 CFR 5.105 to create a new regulatory provision that generally prohibits HUD's assisted and insured housing programs, including ESG, from considering a person's marital status, sexual orientation, or gender identity (a person's internal sense of being male or female) in making housing assistance available. CPD Notice 15-02, “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities,” published in February 2015, provides guidance on how recipients of ESG funding can ensure compliance with this rule.

    e. Definition of Chronically Homeless. HUD intends to finalize the definition of “chronically homeless,” which affects 24 CFR part 91 (the Consolidated Plan regulations). Once published, it will apply to part 91, and the current definition will be amended. This will establish a consistent definition of chronically homeless across HUD's homeless assistance programs.

    f. HMIS final rule. HUD intends to publish a final rule for Homeless Management Information Systems (HMIS). Once published, this rule will apply to all entities using the CoC's HMIS, including Consolidated Plan jurisdictions (both those that receive ESG funds and those that do not) and ESG subrecipients. The ESG regulations will reflect applicable HMIS requirements following promulgation of the HMIS final rule.

    B. How To Read This Notice

    In re-opening the public comment period for the ESG rule, HUD strives to present a structure to this notice that is informative and encourages meaningful public input to the questions posed by HUD. Accordingly, this notice commences with solicitation of comments on definitions and then generally follows the organization of the regulations in the interim rule. This notice describes specific areas of the interim rule on which HUD seeks additional public comment, in order to assist HUD in deciding policy for the final ESG rule. In addition to seeking additional feedback and comment on certain provisions of the ESG interim rule, for some provisions, HUD proposes specific language for comment. This notice contains some regulatory language to provide context to certain questions or proposed language presented by HUD, but it may be helpful to the reader to review this notice in conjunction with the interim rule. HUD appreciates and values the feedback that commenters provide, particularly feedback that draws on their experience with the interim rule.

    The issues addressed in this notice are limited; there are several reasons for this. First, HUD has received public comments on numerous issues, and many of these comments are sufficient for HUD to be able to make a decision—in some cases, a change—for the final rule. Such issues are not specifically addressed in this notice. For example, HUD is planning to change the income requirement for re-evaluation from “at or below 30 percent AMI” to “below 30 percent AMI” to match the requirement at initial intake, because many people have been confused by the distinction. Second, some issues—including the definition of “homeless,” the corresponding recordkeeping requirements, and the definition of “chronically homeless”—are not subject to further public comment. Public comment for the definition of “homeless” and the corresponding recordkeeping requirements were addressed in the Defining Homeless final rule published in the December 5, 2011, Federal Register. Likewise, please note that there are some elements of the ESG program that HUD cannot change because they are statutory, such as the cap on Street Outreach and Emergency Shelter program components, or the fact that public housing agencies (PHAs) cannot be recipients or subrecipients (with limited exceptions). Lastly, HUD requests that commenters not resubmit any comments already submitted in the first public comment period unless they provide new information or insights based on research or experience with the program. As mentioned above, HUD has already carefully considered the first set of comments. These are all available online at: www.regulations.gov/#!docketDetail;D=HUD-2011-0153. When the final rule is published, HUD will provide a response to each comment received in either comment period. Please take these factors into consideration when developing and submitting comments.

    II. Areas of the Consolidated Plan and ESG Interim Rule on Which HUD Seeks Additional Public Comment A. Definitions

    HUD seeks comments on possible changes to several definitions included in the interim rule at §§ 91.5 and 576.2.

    1. At risk of homelessness (§§ 91.5 and 576.2): HUD received many comments requesting further elaboration about the condition referenced at § 576.2(1)(iii)(G), which states: “Otherwise lives in housing that has characteristics associated with instability and an increased risk of homelessness, as identified in the recipient's approved Consolidated Plan.” HUD recognizes that, given the variety of types, characteristics, and conditions of housing in urban, suburban, and rural areas around the country, this definition could encompass many different housing situations. However, it is important to note that this condition focuses on characteristics of the housing, not the household. For example, in a housing unit that does not have the capacity for utilities (e.g., broken water pipes, non-functional wiring for electricity, etc.), the lack of utilities would be a characteristic of the housing. Other examples might include a leaking roof or damage from rodents. On the other hand, if the utilities have been shut off in a housing unit, due to the household's inability to pay, HUD considers this a characteristic of the household, not a characteristic of the housing (of course, that household might still be able to receive ESG assistance under a different category of the At Risk of Homelessness definition).

    HUD is considering adding specificity to this condition in the ESG final rule, and seeks comments on the following questions:

    a. What types of housing conditions exist in your region that would support this interpretation, or what housing conditions exist that would necessitate different regulatory language?

    b. What characteristics, if any, should be added to this portion of the definition of “At Risk of Homelessness” to aid recipients in determining who is at risk of homelessness?

    Note:

    For the corresponding recordkeeping requirement, see Section II.C.19.a. of this notice.

    2. Emergency shelter (§§ 91.5 and 576.2): The definition of “emergency shelter” in the interim rule states: “Any facility, the primary purpose of which is to provide a temporary shelter for the homeless in general or for specific populations of the homeless, and which does not require occupants to sign leases or occupancy agreements. Any project funded as an emergency shelter under a Fiscal Year 2010 Emergency [Shelter] Grant may continue to be funded under ESG.” HUD is considering revising the definition in § 576.2 to address several issues, and seeks comment on the following proposed definition (italicized language added or changed from the interim rule definition): “Emergency shelter means any facility (including any building or portion of a building), the primary purpose of which is to provide a temporary shelter for homeless individuals or families in general or for specific populations of homeless individuals or families. If occupancy creates rights of tenancy under state or local law, the primary purpose is not temporary shelter. The use of the building as an emergency shelter must not be inconsistent with applicable state and local law, including zoning and building codes.” Each of the proposed changes addressed by the above language is described in greater detail below, with some alternatives discussed. Further, HUD seeks comment on an additional clause for inclusion in the definition: adding to the definition that the facility (building or portion of a building) must also be designated as an emergency shelter on the CoC's most recent Housing Inventory Count.

    HUD's proposed changes to the definition of emergency shelter are designed to convey the following: (1) It is not solely the structure of the building that makes something an emergency shelter, it is its purpose—essentially temporary sleeping accommodation—and local zoning laws and building codes determine whether a particular use or structure is allowed in an area; (2) The primary purpose of emergency shelter is to provide a habitable place for a homeless individual or family to sleep, and occupancy by an individual or family in an emergency shelter is temporary (no rights of tenancy are conferred by occupancy); and (3) The homeless shelter provider and program participant relationship is fundamentally different than that of a landlord-tenant relationship.

    Below is a discussion of the intent of the proposed changes as well as specific questions for public comment.

    a. Adding “building or portion of a building.” HUD recognizes that an emergency shelter can take many shapes, especially in rural areas and during local emergencies (e.g. hypothermia season), and communities need flexibility to ensure that all homeless persons have a safe place to sleep at night. In light of this recognition, HUD is considering changing the definition of emergency shelter to include the term “building or portion of a building.” This change is intended to clarify that an emergency shelter might consist of a building (such as one designed as an emergency shelter facility or a residential-style building), or it might consist of only a portion of a building, such as a wing, room, or floor of a building, or even one or more apartment units, in which homeless families or individuals are given temporary shelter, as evidenced by restrictions on occupancy and use. HUD intends for each of these possible arrangements to be covered under the emergency shelter definition, and HUD invites comments as to whether adding “building or portion of a building” would be helpful clarification.

    The requirements that apply to each emergency shelter would apply to each building or portion of a building used as an emergency shelter. Further, each separate building would be considered a separate emergency shelter, even if multiple buildings are located on the same site. However, multiple emergency shelters (whether whole buildings or portions of buildings) could comprise a single emergency shelter project if the recipient or subrecipient decides to group the shelters together under HUD's proposed definition of “project” (discussed below). Consequently, the recipient or subrecipient could apply a single set of written standards to all emergency shelters that are classified as the same emergency shelter project. HUD will consider other requirements that could apply when determining where the word “project” is to be used in the final rule, with the goal of improving the ease of administering a “project” for recipients and subrecipients. However, note that any ESG requirement that uses “emergency shelter” but not “project” would apply on a shelter-by-shelter basis, not project-wide. For example, a subrecipient might be able to group two or more shelters under one emergency shelter project for purposes of funding and written standards, but could not group the shelters together for purposes of meeting the involuntary family separation prohibition, which uses “emergency shelter,” not “project.”

    With respect to this idea, HUD seeks comment on the following specific questions:

    (1) If HUD were to add “building or portion of a building” to the definition of “emergency shelter,” are there any particular issues or challenges that it would cause for ESG recipients and subrecipients, and if so, what are they? Or, would this be a helpful addition, and if so, how?

    (2) Alternatively, HUD is considering adding “building, buildings, or portions(s) of a building.” However, in order to consider multiple buildings to be a single emergency shelter, HUD would need to make additional qualifications to be consistent with the nondiscrimination and other ESG requirements. HUD seeks comment on the following questions related to this proposal:

    (a) Should HUD require the shelter buildings to be within a certain distance of each other to be considered the same emergency shelter? For example, could two emergency shelter buildings on opposite sides of a large urban county be considered a single emergency shelter, or should HUD set a distance limit? Is there a circumstance under which there would be an advantage—either administrative or otherwise—to consider two emergency shelter buildings as a single shelter, especially if they can be administered as the same project, with the same written standards and other rules?

    (b) Should HUD require the buildings to be operated by the same subrecipient to be considered the same emergency shelter?

    (c) Are there any other requirements HUD should establish in order to establish commonalities that makes the different buildings a single emergency shelter?

    (d) If multiple shelter buildings could be considered a single project, would it make a significant difference in your community if HUD were to adopt “building, buildings, or portion” of a building, as opposed to “building or portion of a building?”

    (3) Are there any other considerations about this distinction that are important for HUD to take into account in determining the final rule on this topic?

    b. Clarifying that occupancy in an emergency shelter must not create any rights of tenancy under state or local law. In formally recognizing that a facility could include an apartment or other building to serve as an emergency shelter, HUD aims to distinguish emergency shelter provided by a recipient or subrecipient where the shelter resident is sleeping in an apartment or other standard unit from the provision of rental assistance. This bolsters the requirement that emergency shelter is temporary. Therefore, HUD is considering adding the following sentence to the definition of emergency shelter: “If occupancy creates rights of tenancy under state or local law, the primary purpose is not temporary shelter.” In other words, if the shelter resident's occupancy of a space creates a right of tenancy or entitlement to occupancy to that space, it is not temporary and, therefore, it is not emergency shelter. HUD seeks comment on this proposal, in particular: In communities that have “right to shelter” laws, would this addition create any conflicts? If any problems could arise, what are they?

    c. Establishing a clearer distinction between emergency shelter and transitional housing, including removing “leases or occupancy agreements” from the definition. The primary distinction between emergency shelter and transitional housing is incorporated into the statutory definitions of these terms in the McKinney-Vento Act, as follows: The purpose of an emergency shelter is to provide temporary shelter; the purpose of transitional housing is “to facilitate the movement of individuals and families experiencing homelessness to permanent housing within 24 months.” HUD's proposed definition incorporates two related issues for the public to consider:

    (1) In the ESG and CoC Program interim rules, HUD attempted to further clarify for recipients the distinction between the two by stating that transitional housing projects must require a lease or occupancy agreement and emergency shelters could not. HUD received many questions about what constitutes an occupancy agreement, and has since determined that this is not necessarily the best way to make this distinction. This is in part because an occupancy agreement is, simply, a document that is a contract between two parties that is not a legal lease under local landlord/tenant law (though in some communities an occupancy agreement meets the requirements of a lease). Therefore, HUD is proposing removing the phrase “and which does not require occupants to sign leases or occupancy agreements” from the definition of emergency shelter.

    (2) In its place, HUD is considering adding to the definition a requirement that each emergency shelter must be designated as such on the most recent Housing Inventory Count (HIC) for the applicable CoC for the geographic area, in order to establish a clear and consistent location to identify the status for each emergency shelter or transitional housing project each year. Under this proposal, each recipient or subrecipient would be required to choose the status of a particular project, based on the primary purpose of the project, as either emergency shelter or transitional housing, and indicate this designation formally on the HIC. Per this proposal, the purpose of the project would become the distinguishing factor, as designated on the HIC. This designation would only apply to the project's eligibility for funding under HUD's CoC or ESG Programs.

    HUD recognizes that in some ESG-funded “transitional shelter” projects, program participants tend to stay for longer than 3 or 6 months, and the program has a heavy service focus. HUD intends to require these types of projects to carefully consider their purpose. HUD also notes that if a subrecipient's emergency shelter contains overnight sleeping accommodations (i.e. not a day shelter), it could operate a rapid re-housing project in conjunction with that emergency shelter, to help move program participants to permanent housing. The primary purpose of the emergency shelter bed would be to provide temporary shelter, and the primary purpose of the rapid re-housing project would be to help program participants move quickly into permanent housing (whereas the primary purpose of a transitional housing project is to provide housing for up to 24 months while facilitating the movement to permanent housing). In addition, any emergency shelter that has used ESG funds for renovation and is under a 3- or 10-year minimum period of use requirement would be required to be designated as an emergency shelter. Likewise, any building rehabilitated under the transitional housing component of the CoC Program would be required to be designated as transitional housing.

    If included in the final rule, HUD plans to issue guidance to help recipients and subrecipients make this determination. This Notice is not intended to provide that guidance; rather, it is intended to introduce this concept, and seek public comment on it in order to determine whether to move forward with it in the ESG final rule, and in the CoC final rule. HUD seeks public comment on including a requirement in the definition of emergency shelter for recipients and subrecipients to designate emergency shelter projects on the HIC; specifically the following questions:

    (a) Would it be helpful to include a provision making the HIC the required place for designating whether a particular bed is considered emergency shelter or transitional housing? Or would it create an unnecessary burden, or would it make no difference since emergency shelters must be designated on the HIC already?

    (b) If added, should it be included in the definition of emergency shelter or elsewhere in the final rule (e.g. the emergency shelter requirements section at § 576.102 or documentation section at § 576.500)? Alternatively, should it be required elsewhere, such as in the subrecipient agreement?

    (c) Finally, HUD has considered that there may be an ESG subrecipient with an emergency shelter in an area that is either not covered by a CoC or where the CoC has not submitted a HIC, for some reason. Has this scenario occurred? Should HUD address this in the final rule?

    d. Removing or altering the concept of “grandfathering in” projects in the interim rule. The ESG interim rule includes the following language, “Any project funded as an emergency shelter under a Fiscal Year 2010 Emergency [Shelter] Grant may continue to be funded under ESG.” The current language was intended to continue funding of “transitional shelters” which were included in the definition of “emergency shelter” under the Emergency Shelter Grants Program. HUD is considering whether to remove, alter, or maintain this clause in the definition, based on the changes described above which more clearly define an emergency shelter versus transitional housing.

    If HUD were to remove this clause, HUD recognizes that there may be some facilities currently classified as emergency shelters that would not meet the revised definition of emergency shelter as proposed, and these facilities would not be eligible for continued funding under the ESG Program. HUD seeks comment on the following questions related to this issue:

    (1) If removing the “grandfathering” clause would not affect your project or community, what strategies have you undertaken to meet the needs without providing ESG-funded transitional shelter or transitional housing?

    (2) If removing the “grandfathering” clause would affect your project or your community, please describe the significance of the impact, specifically the number of beds that would lose ESG funding as a result. Also, what is it about the project that makes it not temporary, or what is the purpose of the project or activities provided that make it overlap between transitional housing and emergency shelter?

    (3) How could HUD change the definition of emergency shelter—specifically, the “grandfathering clause”—to ensure that beds that are truly needed as emergency shelter in the community can continue to receive ESG funds in the future?

    e. Ensuring that emergency shelters are placed in locations that are not inconsistent with an area's zoning and building code. Especially as HUD clarifies that buildings such as apartment buildings can be used as emergency shelters, HUD wants to ensure that recipients and subrecipients fully understand that the use of a building as emergency shelter (e.g., the designation as such) must be in compliance with state and local laws. For this reason, HUD is considering adding the following language either to the definition of emergency shelter or to the requirements in § 576.102, to emphasize it: “The use of the building as an emergency shelter must not be inconsistent with the applicable state and local law, including zoning and building codes.” If HUD were to adopt such language in the final rule:

    (1) Would it be helpful in ensuring that all recipients and subrecipients understand the context in which emergency shelter must be provided, especially if it is a building or portion of a building that is not traditionally used as emergency shelter, or would including this language make no practical difference?

    (2) If HUD were to include this requirement, would it be most appropriate in the definition or the elsewhere in the final rule (e.g. § 576.102(a))?

    (3) Additionally, would it be helpful to remind recipients and subrecipients in the final rule that all emergency shelters must be operated consistently with state or local law? If so, should that reminder be incorporated into the definition of emergency shelter or elsewhere in the final rule?

    f. Other comments. In addition to the specific feedback requested above, HUD seeks any additional feedback on this the revised, proposed definition of emergency shelter.

    3. Local government and State (Instrumentalities) (§ 576.2): MAP-21 expanded the statutory definition of “local government” to include an instrumentality of the unit of general purpose local government, other than a public housing agency, provided that the instrumentality is established pursuant to legislation and designated by the chief executive to act on behalf of the local government regarding activities funded under title IV of the McKinney-Vento Act. MAP-21 also expanded the statutory definition of “state” to include any instrumentality of a state that is designated by the governor to act on behalf of the state.

    HUD is considering the following standards for recognizing instrumentalities under ESG and seeks comments on the following proposals, specifically how burdensome it would be to obtain this information:

    a. Instrumentality of a State. For HUD to recognize an instrumentality as the state for ESG, the state must submit the following to the local HUD field office:

    (1) The governor's written designation of the instrumentality to act on behalf of the state with respect to activities funded under ESG; and

    (2) A legal opinion from the attorney general of the state that the instrumentality either:

    (a) Meets each of the following criteria:

    (i) Is used for a governmental purpose and performs a governmental function;

    (ii) Performs its function on behalf of the state;

    (iii) The state has the authority to appoint members of the governing body of the entity, or the control and supervision of the entity is vested in the state government;

    (iv) Statutory authority is needed by the state to create and/or use the entity; and

    (v) No part of the net earnings inures to the benefit of any private shareholder, member or individual; or

    (b) The entity otherwise qualifies as an instrumentality of the state under its state law.

    b. Instrumentality of a local government. For HUD to recognize an instrumentality as the metropolitan city or urban county for ESG, the metropolitan city/urban county must submit the following to the local HUD field office:

    (1) The chief executive's written designation of the instrumentality to act on behalf of the metropolitan city/the urban county with respect to activities funded under ESG; and

    (2) Certification by the metropolitan city or urban county (chief executive or authorized attorney for the metropolitan city or urban county) that:

    (a) The instrumentality is established pursuant to legislation to act on behalf of the metropolitan city/the county with regard to homeless assistance activities, but is not a public housing authority/agency; and

    (b) The instrumentality either:

    (i) Meets the following criteria:

    (A) The entity is used for a governmental purpose and performs a governmental function;

    (B) The entity performs its function on behalf of the metropolitan city/the county;

    (C) The metropolitan city/the county has the authority to appoint members of the governing body of the entity or the control and supervision of the entity is vested in the metropolitan city/the county;

    (D) State or local statutory authority is needed to create and/or use the entity; and

    (E) No part of the net earnings inures to the benefit of any private shareholder, member or individual; or

    (ii) Otherwise qualifies as an instrumentality of the metropolitan city/urban county under its state or local law.

    4. Project (§ 576.2): HUD is considering adding a definition of “project,” in order to establish a clear meaning for the term's primary use in the ESG final rule. HUD is considering that this definition read as follows:

    Project means an activity or group of related activities under a single program component, designed by the recipient or subrecipient to accomplish, in whole or in part, a specific objective, and which uses a single HMIS implementation for data entry on these activities. A project may include both ESG-funded and non-ESG-funded activities. This definition does not apply to the term “project” when used in the requirements related to environmental review, project-based rental assistance, or the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.

    Under this proposed definition, a single organization could self-define the project in accordance with this definition, and administer one or more than one project. For example, a nonprofit subrecipient could administer a Rapid Re-housing project that only provides case management to persons receiving rental assistance through another federal program. Or, it could administer a Rapid Re-housing project that provides various activities under the Rapid Re-housing component. Alternatively, it could set up and administer two rapid re-housing projects in two different locations (e.g., in different parts of a state), in a single location (e.g. one project for city-funded activities and one project for state-funded activities), or it could consider the two as a single rapid re-housing project. However, if a single provider used ESG funds for rapid re-housing and emergency shelter, these would be two separate projects. Similarly—related to the proposed definition of emergency shelter discussed above—multiple emergency shelters (whether whole buildings or portions of buildings) could comprise a single emergency shelter project. Also note that this proposed definition requires activities defined as a project to use the same HMIS implementation. This means that if an ESG recipient/subrecipient operates rapid re-housing activities, for example, in two different CoCs that use different HMIS implementations, they would need to consider these two separate projects. In addition, this definition of project may have implications for other aspects of the ESG final rule: For example, a recipient or subrecipient could establish a single set of written standards at the project level (also addressed under written standards, below). Finally, note that this definition of “project” would not apply to the term when used for purposes of the Integrated Disbursement and Information System (IDIS).

    HUD seeks comment on the following questions related to the definition of “project:”

    (1) HUD could allow each recipient or subrecipient to self-define the project in accordance with HUD's definition (such as the one proposed above), such as in a recipient's Annual Action Plan, in a subrecipient's request for funding from the recipient, or in the subrecipient agreement. Should HUD require recipients or subrecipients to formally define or declare each project, and should HUD define how it should be done? If so, what should that requirement be?

    (2) What are the potential effects—positive and negative—of adopting the proposed definition?

    (3) Are there suggestions for alternate definitions or changes to this definition?

    5. Rapid Re-housing (§ 91.5): HUD is reviewing whether to revise the definition in § 91.5 as follows (italicized text replaces current language):

    The provision of a package of rental assistance, financial assistance, and/or services, tailored to the household, necessary to help a homeless individual or family move as quickly as possible into permanent housing and achieve stability in that housing. This definition would be consistent with a model established by HUD in collaboration with the U.S. Interagency Council on Homelessness, other federal agencies, and stakeholders. HUD seeks comment on this proposed definition. B. Request for Comment on the Amendments to Consolidated Submissions for Community Planning and Development (CPD) Programs (24 CFR Part 91)

    1. Submission of Action Plans—Timing (§ 91.15 and § 91.115): HUD is considering revising the Consolidated Plan regulations to prohibit Consolidated Plan jurisdictions from submitting Action Plans to HUD before formula allocations have been announced for each fiscal year, as explained in CPD Notice 2014-015, published on October 21, 2014.3 However, this CPD Notice identified ways in which a jurisdiction could initiate citizen participation on its proposed plan before the jurisdiction knows its actual allocation amounts for a given year. HUD solicits comments on whether HUD should revise the regulations governing citizen participation (§ 91.105 and § 91.115) to reflect the CPD Notice; that is, to allow a jurisdiction to conduct citizen participation on a proposed plan that does not reflect actual allocation amounts, but only if the proposed plan provides “contingency language” explaining how the jurisdiction will adjust the proposed plan to reflect actual allocation amounts once known. (See also the discussions of § 570.200 and § 91.500 in sections II.B.2 and II.B.7 of this Notice, respectively.)

    3 CPD Notice 2014-015 is available at: https://www.hudexchange.info/resources/documents/Notice-CPD-14-015-Guidance-Submitting-Con-Plans-Annual-Action-Plans-FY-2015.pdf.

    2. Reimbursement for Pre-Agreement Costs in the Entitlement Community Development Block Grant (CDBG) Program (§ 570.200(h)): In conjunction with CPD Notice 2014-15 HUD issued a waiver to certain CDBG Entitlement grantees to allow them to reimburse themselves for costs incurred as of the earlier of the grantee's program year start date or the date the Consolidated Plan/Action Plan is received by HUD. Should HUD revise the Consolidated Plan rule to prohibit submission of Action Plans before formula allocations have been announced, as described above, HUD would also pursue a conforming revision to the Entitlement CDBG program regulations; such a change would permanently adopt the alternative requirements provided by the waiver. HUD seeks comment on this proposal. (See also the discussions of §§ 91.15 and 91.115, and § 91.500 in sections II.B.1 and II.B.7 of this Notice, respectively.)

    3. Area-Wide Systems Coordination Requirements—Consultation and Coordination (§ 91.100(a)(2) and (d), § 91.110(b) and (e), § 576.400(a), (b), and (c)): See Section II.C.12 of this Notice for more detail.

    4. Housing and Homeless Needs Assessment (§ 91.205 and § 91.305):

    a. “Nearing the termination of rapid re-housing assistance” (§ 91.205(b)(1)(i)(K) and § 91.305(b)(1)(i)(K)). HUD is reconsidering the inclusion of the following element in the housing needs assessment (currently required as a narrative in the Consolidated Plan): “Formerly homeless families and individuals who are receiving rapid re-housing assistance and are nearing the termination of that assistance.” HUD originally included this element to encourage Consolidated Plan jurisdictions to identify those households who are housed but who might be more likely to become homeless again than other households, and to focus on helping these families stay housed after their rapid re-housing assistance ends. HUD received a comment indicating that the requirement to obtain this data is too burdensome for states, and is considering removing the requirement for both states and local governments due to the difficulty in obtaining consistent and accurate data. Alternatively, HUD could attempt to clarify the requirement by changing it to “Formerly homeless families and individuals who are receiving ESG or CoC-funded rapid re-housing assistance and are within 30 days of the end of that assistance.” HUD seeks comment on the following questions:

    (1) Is this information useful as a part of a jurisdiction's analysis of housing needs and its planning process? If so, in what ways? If not, should HUD eliminate this as a requirement in the final rule for states, local governments, or both?

    (2) Is there a better way for HUD to encourage jurisdictions to identify and focus efforts on the households most likely to become homeless again? HUD seeks suggestions about how the requirement could be changed to make it easier to capture this or similar information.

    b. Estimating needs for States (§ 91.305(b)(1)(i)). For states, the interim rule also added a requirement to estimate the number and type of families in need of housing assistance for public housing residents (paragraph (b)(1)(i)(F)) and families on the public housing and Housing Choice Voucher tenant-based waiting list (paragraph (b)(1)(i)(G)). HUD received a comment that it is too burdensome for states to collect this data, and is reconsidering the inclusion of both of these elements for states. HUD seeks comment on the following questions:

    (1) Is this information useful as a part of a state's analysis of housing needs and its planning process? If so, in what ways?

    (2) How are states collecting this data? Are states obtaining reliable estimates on these elements?

    (3) Should HUD remove either of these elements from the housing needs assessment of the Consolidated Plan for states, and why or why not?

    c. Estimation of homeless data (§ 91.305(c)(i) and § 91.205(c)(i)). The interim rule requires Consolidated Plan jurisdictions to include, in their Housing and Homeless Needs Assessment, the following:

    for each category of homeless persons specified by HUD (including chronically homeless individuals and families, families with children, veterans and their families, and unaccompanied youth), the number of persons experiencing homelessness on a given night, the number of persons who experience homelessness each year, the number of persons who lose their housing and become homeless each year, the number of persons who exit homelessness each year, and the number of days that persons experience homelessness.

    HUD expects Consolidated Plan jurisdictions to obtain this data from CoCs, and CoCs will be able to obtain most elements from the local HMIS and the PIT count. However, CoCs must ensure that the data reflects the boundaries of the Consolidated Plan jurisdiction rather than the boundaries of the CoC. The HMIS Data Standards Manual at https://www.hudexchange.info/resources/documents/HMIS-Data-Standards-Manual.pdf, released in 2014, establishes certain data elements to be collected in HMIS that enable jurisdictions to report on the above-required measures. However, HUD recognizes that communities are currently working towards setting up their HMIS solutions in order to fully meet these requirements, and that some of this data may only be based on estimates until the new data standards are fully implemented. When a CoC's claimed geographic area includes multiple Consolidated Plan jurisdictions that CoC will need to disaggregate CoC-wide data for each Consolidated Plan jurisdiction. States, territories, and local Consolidated Plan jurisdictions with multiple CoCs need to compile relevant data from all of CoCs within their geographic area. HUD recognizes that some Consolidated Plan jurisdictions might have encountered challenges related to collecting data for the Homeless Needs Assessment of the Consolidated Plan due to the overlap of CoC boundaries and Consolidated Plan jurisdictions. HUD seeks feedback about how jurisdictions are currently providing estimates for these measures, specifically:

    (1) What steps are CoCs currently carrying out to disaggregate CoC-wide data for the Consolidated Plan jurisdiction, when their geographies do not align?

    (2) What are the barriers to obtaining accurate data for these measures at the Consolidated Plan jurisdiction level?

    (3) Are Consolidated Plan jurisdictions using this data for planning or other purposes, and how?

    (4) Based on the information above, should HUD make any additional changes to the regulation? If so, what would be most helpful?

    d. Scope of Consolidated Plan Data for States (§ 91.305). In its Action Plan, each state is required to describe “. . . the geographic areas of the state . . . in which it will direct assistance during the ensuing program year, giving the rationale for the priorities for allocating investment geographically . . .” (required at § 91.320(f) for the Action Plan and found in the eCon Planning Suite on screen AP-50). Because the information gathered for the Consolidated Plan Housing and Homeless Needs Assessment establishes the need in the state and is the basis for the Strategic Plan and Action Plan, it is important for the public and for HUD to understand the scope of data being reported. However, there might be great variance in the universe of data that states report in their Needs Assessment: Some states include data from entitlement jurisdictions that receive their own allocation of Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), ESG, and/or Housing Opportunities for Persons With AIDS (HOPWA) funding, some only report data on non-entitlement jurisdictions, and some states include partial data from entitlement jurisdictions. In fact, the eCon Planning Suite pre-populates some default data in compliance with different program regulations that require entitlement jurisdictions' data to be either included or excluded for different parts of the Consolidated Plan Needs Assessment. Because homeless data is not pre-populated in the eCon Planning Suite, it might be unclear whether, and which, data from entitlements are included in the state's Consolidated Plan Homeless Needs Assessment.

    In the final rule, HUD is considering adding one of the following requirements to § 91.305 to help obtain the most precise data possible so that each state can better demonstrate how it is tracking and addressing homelessness in its area, and seeks comments on which option HUD should select, if any:

    (1) The state has the option to include in its Homeless Needs Assessment data on entitlement jurisdictions within its boundaries, and must cite all data sources. If the state's Needs Assessment includes data from any entitlement jurisdictions, it must cite which entitlement jurisdictions' data is included and the source of that data (if appropriate, the state could reference the applicable entitlement jurisdiction's Consolidated Plan). If the state's Homeless Needs Assessment is limited to non-entitlement areas' data, then the Consolidated Plan must indicate this; or

    (2) The state must only report non-entitlement data in its Homeless Needs Assessment. If a state intends to allocate funds to an entitlement jurisdiction, the state would be required to incorporate the entitlement jurisdiction's data in its Homeless Needs Assessment by reference only (e.g., provide a link to a Web site or to the jurisdiction's Consolidated Plan containing the data).

    e. Funding services to people on tribal lands (§§ 91.205, 91.305). HUD intends to provide ESG recipients with the discretion to choose whether or not to use ESG to fund nonprofit organizations serving people living on tribal lands. HUD is considering adding the following language: “An ESG recipient may fund activities in tribal areas located within the recipient's jurisdiction, provided that the recipient includes these areas in its Consolidated Plan.” HUD seeks comment on this proposal—specifically:

    (1) What effects will this requirement have?

    (2) How are ESG recipients already including tribal areas in their consolidated planning process?

    (3) If included, should this language be added at part 91 or in part 576?

    f. States' use of HMIS and PIT data (§ 91.305(c)(1)). The interim rule does not include the following requirement for states, which is in the regulation for local governments: “At a minimum, the recipient must use data from the Homeless Management Information System (HMIS) and data from the Point-In-Time (PIT) count conducted in accordance with HUD standards.” HUD is considering including this requirement for states in the final rule, because most states are already obtaining this data from CoCs and HMIS systems, and this change would make the collection consistent with the requirement for metropolitan cities and urban counties. HUD seeks comment on this addition.

    g. Coordination between the Con Plan jurisdiction and CoC on Planning (24 CFR 91.100(a)(2)(i) and 91.110(b)(1)). Currently, the consultation provisions at 24 CFR 91.100(a)(2)(i) and 91.110(b)(1) require each Consolidated Planning jurisdiction to consult with the applicable CoC(s) when preparing the portions of the consolidated plan describing the jurisdiction or state's homeless strategy and the resources available to address the needs of homeless persons and persons at risk of homelessness. In order to develop this strategy, Con Plan jurisdictions must assess the needs and identify available resources to address those needs. For the final rule, HUD is considering specifying that the consultation requirements include a requirement for the Con Plan jurisdiction to consult with the applicable CoC(s) on the following homeless-specific aspects of the Con Plan: the jurisdiction's homeless needs assessment (§§ 91.205(c) and 91.305(c)), one-year goals and specific action steps for reducing and ending homelessness (§§ 91.220(i)(1) and 91.320(h)(1)), and performance reports (§ 91.520).

    HUD expects that in many places, especially where the geographic boundaries of CoCs and Con Plan jurisdiction are coterminous, CoCs and Con Plan jurisdictions are already coordinating to align the strategies in the Con Plan and CoC plan. HUD has received questions about what acceptable consultation, participation, and collaboration consist of, between the CoCs and Con Plan jurisdictions, and especially for states. The purpose of proposing this requirement would be to specify the requirements and ensure that Con Plan jurisdictions and CoCs are collaborating on all aspects of the plan that directly impact the homeless goals and strategies, in order to develop a more complete and cohesive strategy to end homelessness in these overlapping plans.

    HUD seeks comment on this concept, specifically:

    (1) Would this requirement facilitate or improve collaboration and coordination between CoCs and Con Plan jurisdictions on homelessness activities? If so, how? If not, why not?

    (2) Are the current consultation requirements in the interim rule sufficient for Con Plan jurisdictions to establish the needs and strategies for addressing homelessness in the jurisdiction?

    (3) Should HUD include this requirement, or are there other ways that HUD could, in the final rule, facilitate better coordination between CoCs and Con Plan jurisdictions to ensure that their plans establish closely aligned and complementary goals to end homelessness?

    5. Process for Making Subawards (§§ 91.220(l)(4)(iii) and 91.320(k)(3)(iii)):

    HUD received comments from numerous respondents recommending that HUD require ESG recipients to describe how they will use performance data to select subrecipients. Based on these comments, HUD is considering including language in the final rule that would implement this suggestion, and seeks comments on what impact this would have on ESG recipients. For those recipients that currently select subrecipients based on performance data, HUD seeks feedback about processes currently used, including any specific performance indicators. Additionally, HUD seeks comment on whether there are any further requirements that HUD should include related to selecting subrecipients based on performance to help recipients implement this proposed requirement.

    6. Written Standards for ESG Recipients (§ 91.220(l)(4) and § 91.320(k)(3), and § 576.400(e)): See section II.C.14 of this Notice for more detail.

    7. HUD Approval of Action Plans (§ 91.500): HUD is considering amending the list of examples of substantially incomplete Action Plans at § 91.500(b), to include plans which do not reflect a jurisdiction's actual allocation amounts for that year. HUD envisions that this would also cover situations in which a jurisdiction submits a proposed plan on which it has conducted citizen participation, which neither reflects actual allocation amounts nor contains contingency language on how the jurisdiction will adjust its plan to reflect actual amounts. (See also the discussions of §§ 91.15 and 91.115, and § 570.200 in sections II.B.1 and II.B.2 of this Notice, respectively.)

    8. Performance Reports Related to Homelessness for ESG Recipients (§ 91.520(g)): HUD proposes to require that ESG recipients and subrecipients use HMIS (except those subrecipients that are prohibited from doing so under VAWA) in compliance with the forthcoming HMIS rule, to collect and report on data in the Consolidated Annual Performance Evaluation Report (CAPER), as specified by HUD, and seeks comments on this proposal.

    C. Request for Comment on Emergency Solutions Grants Program Regulations (24 CFR Part 576)

    1. Emphasis on Rapid Re-housing: HUD has been encouraging ESG recipients to spend more of their funds on rapid re-housing, since it is often a cost-effective way to make a significant impact on homelessness in a community and help achieve the national goal of ending homelessness. HUD is considering ways to continue this policy, and seeks feedback on what requirements and/or incentives could be established in the final rule for recipients to focus more on rapid re-housing, or whether HUD should simply continue to encourage this focus through guidance.

    HUD received several comments recommending that HUD limit the amount of funds that an ESG recipient can spend on homelessness prevention activities. However, HUD cannot place a cap on homelessness prevention activities without a statutory change. Instead, HUD seeks creative ways to encourage more rapid re-housing—possibly through the final rule. For example, if a recipient intended to spend funds on homelessness prevention, HUD could require the recipient to justify, in the Consolidated Plan, how meeting the needs of persons at risk of homelessness is more effective at ending homelessness (without this justification, the Consolidated Plan would be determined substantially incomplete and could not be approved). Another option could be to establish performance measures and link the local CoC application scoring to ESG recipients' achievement of those measures. Another option could be to require only the rent reasonableness standard for rapid re-housing activities, but require both the Fair Market Rent (FMR) and rent reasonableness standard for homelessness prevention activities. HUD seeks comments on whether to adopt these or suggestions for other methods to increase the amount of funds recipients spend on rapid re-housing activities.

    2. Street Outreach and Emergency Shelter Components (§ 576.101 and § 576.102):

    a. Essential services under the Emergency Shelter Component (§ 576.102(a)). The interim rule states that ESG funds may be used for costs of providing essential services to individuals and families in an emergency shelter. HUD has received feedback that this could be interpreted in two different ways:

    (1) Only individuals and families who spent the prior night in an emergency shelter can receive ESG-funded essential services, no matter where those services are provided; or

    (2) Anyone who meets the homeless definition can receive essential services, as long as the services are provided in the emergency shelter.

    HUD proposes to clarify who can receive essential services under the Emergency Shelter component—including in day shelters—by changing the language as follows (proposed portions italicized):

    ESG funds may be used for costs of providing essential services to homeless families and individuals as follows:

    (a) When provided in an emergency shelter, the services may be provided to persons:

    (i) who meet the criteria described in paragraph (1) of the homeless definition, and

    (ii) who are either staying in that emergency shelter, or who are sleeping on the street or another place described in paragraph (1) of the homeless definition (excluding those in transitional housing) and are referred to services by an emergency shelter, and

    (b) When provided in a facility that is not an emergency shelter, the services may be provided only to persons meet the criteria described in paragraph (1) of the homeless definition (excluding those in transitional housing) and who are referred to services by an emergency shelter.

    In other words, if an individual or family meets Category 1 of the homeless definition (excluding those in transitional housing) and is staying in an overnight or day shelter, they can receive eligible essential services in that shelter. Otherwise, if an individual or family meets Category 1 of the homeless definition (excluding those in transitional housing) and is referred by a shelter, they can receive eligible essential services at any provider's location. This change would widen the array of essential services that can be provided to those most in need—expanding the language to allow ESG funds to be used to pay for facility-based essential services to most persons sleeping on the street. HUD would require the referral from an emergency shelter as a linkage to the Emergency Shelter component, under which the services will be provided. HUD would consider this change in order to improve service coordination and also to ensure that the services charged to the grant are necessary and appropriate to the individual or family. HUD wants to encourage, to the extent possible, that non-facility-based services are provided by mainstream programs, not ESG. HUD seeks comment on this proposed change.

    b. “Unavailable” and “Inaccessible” Services (§ 576.101(a) and § 576.102(a)). Under the Street Outreach and Emergency Shelter components of the interim rule, ESG funds may only be used for certain essential services “to the extent that other appropriate [emergency health services, emergency mental health services, mental health services, outpatient health services, legal services, substance abuse treatment services] are unavailable or inaccessible within the community.” HUD has received questions and comments about this requirement, specifically, what it means to be “unavailable or inaccessible.” HUD had originally included this restriction in order to prioritize ESG funds for housing rather than services that should be available through mainstream systems. However, HUD recognizes that sometimes services are necessary and not provided by any other resource; in these cases, certain essential services are eligible under ESG. HUD is not considering removing this restriction from the regulation in the final rule, but is considering changes to help communities implement the requirement and document compliance. HUD specifically seeks additional comment on:

    (1) Whether HUD should define or set a standard for “unavailable” and “inaccessible” within the rule, and if so, what definition or standard would best help recipients and subrecipients implement this requirement?

    (2) Whether only one term should be used, and if so, which one and why?

    (3) How have recipients and subrecipients implemented this requirement under the interim rule? Have they documented it for each program participant, or generally at the community level, and why? What can HUD learn from these experiences that it should implement in the final rule?

    c. Day shelters (§ 576.102(a)). While a shelter that provides temporary daytime accommodations and services can be funded as an emergency shelter under the ESG interim rule, HUD receives questions about day shelters and is therefore considering explicitly stating in the final rule that day shelters are emergency shelters, and specifying the conditions under which a day shelter may receive funding under the Emergency Shelter component, including several requirements to ensure that ESG funds are used for homeless persons most in need. HUD is considering adding the following language at 576.102(a):

    A day shelter may be funded as an emergency shelter under this section only if: (1) The shelter's primary purpose is to provide temporary daytime accommodations and services to individuals and families who meet paragraph 1 of the homeless definition in this section (except those in transitional housing); and (2) those persons can stay in the shelter for as many hours as it is open.” ESG funds for operating costs in a day shelter may only be incurred to the extent the shelter is used for persons assisted in the shelter who meet the definition of homeless under paragraph (1) (except those in transitional housing), and essential services provided in a day shelter may only be provided to persons meeting the definition of homeless under paragraph (1) (except those in transitional housing).

    HUD seeks comment on the following questions regarding day shelters:

    (1) What impact would adding these requirements for day shelters have in your community? For instance, would this require any changes to emergency shelter policies or procedures in your community?

    (2) What changes, if any, would need to be made to this provision of the regulation so that your community can fund or continue to fund day shelters with ESG?

    (3) Are there any changes to the documentation requirements for program participants in emergency shelters that would be needed for day shelters?

    d. Involuntary family separation (§ 576.102(b)). This requirement states that “The age of a child under age 18 must not be used as a basis for denying any family's admission to an emergency shelter that uses ESG funding or services and provides shelter to families with children under age 18.” HUD interprets this provision to mean that if a shelter serves any families with children, the shelter must serve all members of a family with children under 18, regardless of age or gender. HUD is not proposing to change this provision because it is statutory. However, HUD is considering possible regulatory changes that would help recipients and subrecipients implement the statutory provision, and seeks ideas based on actual issues that have occurred in communities.

    HUD is also proposing that a shelter must serve all members of the family together if the members of the family so choose (e.g. it may not separate adult men from women and children in a family and serve them on a different floor or in a different building). HUD seeks comments on this proposal.

    e. Fees in emergency shelters (§ 576.102). In the past, HUD has allowed emergency shelters to charge reasonable fees for staying in the shelter. HUD is considering revising this policy, in the final rule, to explicitly allow emergency shelters to charge reasonable occupancy fees, but specify that the amount of the fee charged must account for the capacity of the client to afford to pay the fee, and the fee itself cannot be a barrier to occupancy in the shelter, and this fee must be counted as program income. Additionally, HUD will consider adding language prohibiting recipients or subrecipients providing Rapid Re-housing or Homelessness Prevention assistance to charge program participants any costs above any required contribution to rent payments. This change would increase consistency between the requirements of the ESG Program and the CoC Program. HUD seeks comment on these ideas.

    f. Minimum Period of Use—Street Outreach component (§ 576.101(b)). The current minimum period of use requirement states: “The recipient or subrecipient must provide services to homeless individuals and families for at least the period during which ESG funds are provided.” This language comes from the statute, which requires that the recipient certify, with respect to the Street Outreach and Emergency Shelter components, that it will “provide services or shelter to homeless individuals and families for the period during which such assistance is provided, without regard to a particular site or structure as long as the same general population is served.” HUD is considering clarifying the regulatory language to help recipients and subrecipients understand how to comply with this requirement, as follows: “The recipient or subrecipient providing the street outreach services must provide the street outreach services to homeless individuals and families for at least as long as that organization is expending ESG funds for street outreach activities.

    g. Minimum Period of Use—Emergency Shelter component (§ 576.102(c)). HUD seeks comment on the following:

    (1) Essential services and shelter operations. Similar to the minimum period of use change being considered under the Street Outreach component, HUD is considering clarifying the language at 576.102(c)(2) as follows (changed language is italicized) to help recipients and subrecipients understand how to comply with this requirement: “Where the recipient or subrecipient uses ESG funds solely for essential services or shelter operations, the recipient or subrecipient must provide services or shelter to homeless individuals and families for at least as long as it is expending ESG funds for essential services or shelter operations, without regard to a particular site or structure so long as the site or structure serves the same type of persons originally served with the assistance (e.g. families with children, unaccompanied youth, disabled individuals or victims of domestic violence) or serves homeless persons in the same area where the recipient or subrecipient originally provided the services or shelter.”

    (2) Renovation. Under the Emergency Shelter component, HUD is proposing the following language at § 576.102(c)(1), to account for partial building renovations and renovations of seasonal shelters (proposed portions italicized): “Each building or portion of a building for which ESG funds are used for renovation must be maintained as a shelter for not less than a period of 3 or 10 years, depending on the type of renovation and the value of the building or portion of the building being renovated. In the case of a seasonal shelter for which ESG renovation funds were used, it must be operated as a seasonal shelter (e.g., 5 months every year) for 3 or 10 calendar years, as applicable.”

    (3) Subrecipient agreement. HUD is considering requiring that the applicable period of use must be stated in the subrecipient agreement.

    (4) Requirements that apply during minimum period of use. HUD is considering revising § 576.102(c)(1) and (2) to clarify and expand the requirements that apply during the minimum period of use when emergency shelters expend ESG funds for Operating Costs, Essential Services for a shelter project, or Renovation, as follows (as a reminder, for Operating Costs and Essential Services, the minimum period of use is the period during which the ESG services are provided; for Renovation, it is 3 or 10 years, as applicable):

    (i) Each person who stays in the shelter must be homeless as defined under § 576.2;

    (ii) Program participant and shelter data must be entered into the local HMIS (or comparable database, as applicable) as required under § 576.400(f);

    (iii) The shelter must meet the minimum habitability standards for emergency shelters under § 576.403(b);

    (iv) The recipient or subrecipient must maintain records for the shelter and the shelter applicants and program participants as required under § 576.500, including documentation of each program participant's eligibility and homeless status (§ 576.500(b)) and confidentiality requirements for survivors of domestic violence (§ 576.500(x));

    (v) The shelter must meet the faith-based activities requirements under § 576.406 and the nondiscrimination requirements and affirmative outreach requirements in § 576.407.

    h. Essential Services for Street Outreach, Case Management (§ 576.101(a)(2)) and Emergency Shelter, Case Management (obtaining identification documents) (§ 576.102(a)(1)(i)). HUD is considering explicitly allowing ESG funds to be used to pay for recipient or subrecipient staff time to help program participants obtain identification documents such as birth certificates and social security cards, and for the cost of such documents, if they are necessary to help a program participant obtain public benefits, employment, housing, or other mainstream resources.

    i. Local Residency Requirements. HUD is considering establishing a requirement, in the final rule, that recipients must not deny services or shelter funded under the Emergency Shelter and Street Outreach components based on whether or not their last permanent residence was in the jurisdiction. That is, if a person is homeless on the streets of a jurisdiction and is seeking emergency shelter there, they must be able to receive ESG-funded assistance, regardless of whether their last residence was inside or outside of the jurisdiction. HUD seeks comment on this idea, and feedback about any issues that this might raise with the implementation of ESG or communities' efforts to end homelessness.

    3. Rapid Re-housing component (defining “rapid” and “as quickly as possible”) (§ 576.104): This section states, “ESG funds may be used to provide housing relocation and stabilization services and short- and/or medium-term rental assistance as necessary to help a homeless individual or family move as quickly as possible into permanent housing and achieve stability in that housing.” HUD has received questions about what “rapid” and “as quickly as possible” mean in practice, and is considering whether to establish a standard or time limit in which an individual or family could be rapidly re-housed. HUD is considering the following options: Setting the standard at a particular number of days (possibly 7, 30, or some other time limit over 30 days) per individual; setting a standard at an average number of days for an ESG recipient; requiring communities to set a standard based on local data and systems; or continuing the current policy and not setting such a standard. HUD seeks comments on:

    (1) Should HUD establish a standard or time limit for rapid re-housing? Why or why not?

    (2) If HUD should set such a standard or time limit, what would be an appropriate limit, based on local experiences with rapid re-housing?

    (3) If HUD should set a standard at a particular number of days, at what point would the “clock” start—at the initial intake assessment, at the point the program participant is determined eligible and enrolled in the program, or other? Should HUD define it or allow the recipient or subrecipient to define it?

    (4) What impact the proposed number of days would have on local program administration. For example, would this conflict with any local goals or other program requirements?

    (5) If implemented, what should the consequence be if a recipient or subrecipient does not meet the standard?

    4. Housing Relocation and Stabilization Services (§ 576.105):

    a. Late fees. HUD is considering explicitly allowing late fees on the program participant's utility and rental payments (other than late fees associated with the 6 months of rental arrears, which are already allowed) and utility reconnection fees for the program participant to be included as an allowable cost under housing relocation and stabilization services, and seeks comment on this proposal.

    b. Court costs (§ 576.105(b)(4)). HUD is considering allowing, as a legal services activity under § 576.105(b)(4), court costs incurred by the landlord during an eviction proceeding as an eligible ESG cost, so long as it is necessary for the program participant to pay them in order to be stabilized in their housing. HUD is considering adding this because payment of this cost may help prevent homelessness for the program participant and it may be an incentive for landlords to work with the program participant. HUD seeks comment on this proposal, specifically:

    (1) Should HUD allow a property owner's court costs to be eligible under ESG? Why or why not?

    (2) Should HUD allow ESG to be used to pay a property owner's court costs only when a court orders the tenant to pay those costs?

    (3) If HUD should allow such costs, how would recipients/subrecipients determine and document that the costs are “necessary” to stabilize a program participant's housing? Should HUD impose any limits on the amount of such costs that may be paid with ESG funds?

    c. Trash removal (§ 576.105(a)(5)). HUD is considering including trash removal as an eligible utility cost at § 576.105(a)(5), in part to be consistent with the definition of utility used to calculate gross rent for purposes of FMR, and in part because in some places, particularly rural areas, tenants are required to pay for trash removal. HUD seeks comment on this proposal.

    d. Mediation (§ 576.105(b)(3)). Under the interim rule, mediation cannot be used to help eligible individuals and families (including homeless youth) move back into housing they have left, when that might be the best placement for them, and the option they would choose. As such, HUD is considering adding language at § 576.105(b)(3) to allow ESG funds to pay for mediation services—under both the Rapid Re-housing and Homelessness Prevention components—to help individuals and families move back into their former housing and/or move in with friends or family members, after they have already moved to an emergency shelter, the streets, or another place described in paragraph (1) of the homeless definition or, for homelessness prevention, after the program participant has moved to other, temporary, housing. HUD proposes the following language (italicized language added): “ESG funds may be used pay for mediation between the program participant and the owner or person(s) with whom the program participant is living or proposes to live, to help the program participant move into, return to, or remain in housing.” HUD seeks comment on this proposal; specifically:

    (1) What impact would this rule change have?

    (2) Are there other concerns HUD should be aware of regarding placing individuals and families in such housing situations?

    e. Broker fees (§ 576.105(b)(1)). HUD is considering explicitly allowing ESG to pay for fees to real estate agents, or “broker fees,” so long as the fee is reasonable and necessary for the household to obtain appropriate permanent housing, by including language at § 576.105(b)(1), Housing Search and Placement activities. HUD seeks comment on this proposal; specifically, is this a necessary cost in order to quickly move individuals and families to permanent housing?

    f. Housing Stability Case Management (§ 576.105(b)(2)). HUD has received numerous questions about the language in the interim rule stating that for ESG housing stability case management, “. . . assistance cannot exceed 30 days during the period the program participant is seeking permanent housing . . .” HUD included this provision recognizing that many clients are enrolled in Rapid Re-housing while residing in shelters, but intentionally limited it, for two main reasons. First, HUD intended this restriction as an incentive to quickly re-house program participants, since any case management over 30 days would have to be paid with non-Federal funds or, if applicable, charged under the Street Outreach component or Emergency Shelter component, which are subject to an expenditure cap. Second, HUD intended that recipients/subrecipients that provide case management to persons in shelter under the Rapid Re-housing program focus on placing these program participants into housing. HUD aims to ensure that recipients/subrecipients are helping program participants obtain housing and not just charging essential services costs for persons in shelter to the Rapid Re-housing component in order to get around the Emergency Shelter/Street Outreach cap. However, HUD recognizes that sometimes it takes longer than 30 days to rapidly re-house a program participant. In addition, one recipient noted that HUD allows the payment of storage fees for up to 3 months under the Rapid Re-housing component and requires monthly case management to be provided during that time, but only allows housing stability case management to be charged to the Rapid Re-housing component for up to 30 days. Therefore, HUD seeks comment on the following questions related to this provision of the rule:

    (1) For program participants who are receiving assistance under both the Emergency Shelter and Rapid Re-housing components (i.e., those staying in a shelter and receiving services to get rapidly re-housed), how are recipients/subrecipients currently determining when to charge the case management costs to each component?

    (2) Has the 30-day limit on charging housing stability case management to the Rapid Re-housing component had an effect on increasing the rates at which program participants find housing? If not, why not?

    (3) If HUD were to change the limit to 90 days, what impact would this have?

    (4) If HUD eliminated this restriction, is there a different way to distinguish between housing stability case management and case management under the emergency shelter component, which is subject to the cap?

    g. Credit reports (§ 576.105(b)(5) and § 576.105(b)(2)). At § 576.105(b)(5), Credit Repair, and § 576.105(b)(2), Housing Stability Case Management, HUD is considering allowing ESG funds to be used to pay for a credit report for program participants being assisted under the Homelessness Prevention and Rapid Re-housing components, if the program participant has exhausted all opportunities to receive a free credit report in a given year and if the report is necessary to stabilize the individual or family in their current housing or quickly move them to permanent housing. HUD seeks comments from providers' experience on whether this would be a helpful addition to the rule, or whether it would not make a difference if included.

    5. Short-Term and Medium-Term Rental Assistance (§ 576.106):

    a. Rental assistance in shared housing—general. HUD proposes to clarify in the final rule that ESG funds may be used to provide rental assistance in shared housing. Except for the FMR requirements (established under § 576.106(d)(1) and addressed below), all ESG requirements that apply to rental assistance would apply to rental assistance provided in shared housing. Among other things, these requirements include the following:

    • There must be a legally-binding, written lease between the owner and the program participant;

    • There must be a rental assistance agreement between the recipient or subrecipient and the owner;

    • The housing must meet ESG habitability standards;

    • The program participant must meet the eligibility requirements for either Rapid Re-housing or Homelessness Prevention assistance;

    • The rental assistance must be provided in accordance with the applicable written standards;

    • Rental assistance may not be provided to a program participant who is receiving tenant-based rental assistance, or living in a housing unit receiving project-based rental assistance or operating assistance, through other public sources; and

    • The shared housing must meet the rent reasonableness standards.

    HUD seeks comments on these ideas; specifically:

    (1) Whether HUD should adopt these policies for rental assistance in shared housing, and, if so, any concerns or issues that may arise in implementation;

    (2) Suggestions about documentation that HUD should require in order to reduce fraud or ensure that the landlord is not a “support network” that can assist the program participant without rental or financial assistance, such as a family member or friend;

    (3) Whether HUD should include all of the above or whether any elements should be added or deleted from the list; and

    (4) How could providing ESG rental assistance to individuals and families that share housing work under state or local law? How do recipients/subrecipients currently make this type of arrangement work, especially with respect to a program participant's lease, and if the other renters are not ESG program participants?

    b. Rental assistance in shared housing—FMR. With respect to the FMR for shared housing, HUD is considering establishing the following standard: When assisting an individual or family with rental assistance in shared housing, recipients and subrecipients would be required to use an adjusted FMR that is the household's pro-rata share of the FMR for the shared housing unit size. For example, in the case of a single-person household who will occupy one bedroom in a 4-bedroom house, the FMR used would be the household's pro-rata share of the 4-bedroom FMR (i.e. 1/4 of the 4-bedroom FMR). Note that HUD's ultimate determination on this issue for the final rule will be influenced by the comments received, and the decision made, regarding the related FMR issue discussed below. HUD seeks comment on this idea, or whether there is an alternate calculation that HUD should use for determining the FMR in shared housing.

    c. Rent restrictions (Fair Market Rent) (§ 576.106(d)): The ESG interim rule states that “rental assistance cannot be provided unless the rent does not exceed the FMR established by HUD, as provided under 24 CFR part 888, and complies with HUD's standard of rent reasonableness, as established under 24 CFR 982.507.” HUD received feedback expressing concern that, unlike the Housing Choice Voucher program, the ESG program uses FMR to limit the units for which rental assistance may be provided, and this does not provide enough flexibility for recipients and subrecipients to quickly find available units. Two of HUD's goals are to ensure that the units for which ESG assistance is provided will be affordable to program participants after the assistance ends, and limit the amount that may be expended on a given household so that more program participants can be assisted. However, HUD is considering alternatives for changes to the final rule to provide recipients and subrecipients with more flexibility in order to quickly find appropriate units. The options HUD is considering to include in the final rule, on which HUD seeks feedback are as follows:

    (1) ESG funds could be used to pay rental assistance for units where the rent is at or below the payment standard set by the PHA for the area (i.e. up to the FMR, up to 110 percent of FMR if that is the PHA's payment standard, or higher if HUD has provided a waiver to the PHA).

    (2) ESG funds could be used to pay rental assistance for units where the rent is above FMR, but ESG funds could only be used to pay up to the FMR amount (any amount of rent above the FMR would have to be paid by either the program participant, or the recipient/subrecipient with non-ESG funds). However, HUD is concerned that allowing program participants to pay for the cost of a unit above FMR might disadvantage those who need the ESG assistance most, since it might be easier to find units above the FMR and therefore, those who are more able to contribute to the rent would be more likely to receive ESG assistance. Therefore, HUD also seeks comments as to as the extent of this risk and if there are any requirements that can be put into place to prevent this practice.

    (3) ESG could require only the rent reasonableness standard for rapid re-housing, but require both the FMR and rent reasonableness standard for homelessness prevention assistance. This might be one way to both increase flexibility and also encourage recipients and subrecipients to provide more rapid re-housing assistance.

    (4) HUD could adopt the standard used in the HOPWA program, described at 24 CFR 574.320(a), which allows recipients (or possibly subrecipients) to establish a rent standard that is no more than the published FMR used for Housing Choice Vouchers or the “HUD-approved community-wide exception rent for the unit size. However, on a unit by unit basis, the [recipient] may increase that amount by up to 10 percent for up to 20 percent of the units assisted.”

    (5) HUD could maintain the FMR and/or rent reasonableness standards but add in some other type of flexibility—HUD seeks suggestions for additional options.

    Note that in all cases HUD is planning to continue to require that the unit at least meet the rent reasonableness standard. Finally, one of HUD's primary concerns is that the program participants be able to remain in the unit after the assistance ends. If HUD included one of the above options to provide more flexibility to recipients and subrecipients by paying higher rents, how could they ensure that the units would remain affordable to program participants without housing assistance?

    In addition, HUD is considering only allowing a recipient to pay rent over the FMR if the recipient includes its proposal to do so in the Consolidated Plan/Action Plan. That way, the recipient would be required to obtain and assess citizen feedback as to whether additional flexibility is necessary in its area before being able to pay rents above FMR.

    d. Last month's rent, security deposits, and rental arrears (§§ 576.105(a) and 576.106).

    (1) HUD is considering re-categorizing “last month's rent” and “security deposit” as rental assistance, rather than housing relocation and stabilization services (financial assistance), because last month's rent is counted in the maximum-allowed 24 months of assistance, which could be confusing. Last month's rent is often paid at the same time as the security deposit, so it might make sense to consider them together. If this change is made, the FMR/rent reasonableness standards and lease and rental assistance agreement requirements would apply when security deposits and last month's rent are used to move a program participant into a unit. HUD will also consider consistency with the CoC Program in making a final decision. HUD seeks comment about this proposal, specifically whether the proposal would reduce confusion and improve administrative ease or whether there are potential negative consequences, and if so, what are they?

    (2) HUD is considering explicitly stating that the FMR and rent reasonableness standards apply when rental arrears are being paid for a unit in which the program participant is staying, but not when the rental arrears are being paid for a unit in which the program participant no longer lives or is leaving. HUD seeks comment on this and any potential issues that could arise if HUD were to adopt this policy.

    e. Providing subrecipients with discretion to set caps and conditions (§ 576.106(b)). HUD is considering changing the language as follows, to enable subrecipients to set caps on the assistance provided to a household (italicized language added): “Subject to the requirements of this section, the recipient or subrecipient may set a maximum amount or percentage of rental assistance that a program participant may receive, a maximum number of months that a program participant may receive rental assistance, or a maximum number of times that a program participant may receive rental assistance. The recipient or subrecipient may also require program participants to share in the costs of rent.” HUD seeks comments on this; in particular, any concerns that recipients might have with providing subrecipients with this discretion.

    f. Rental Assistance Agreement requirements (§ 576.106(e)).

    (1) HUD is considering listing the elements that must, at a minimum, be included in the rental assistance agreement. The following two elements are already required in the interim rule, and HUD plans to keep them in the final rule:

    • The same payment due date, grace period, and late payment penalty requirements as the program participant's lease; and

    • A provision requiring the owner to give the recipient/subrecipient a copy of any notice to the program participant to vacate the housing unit, or any complaint used under state or local law to commence an eviction action against the program participant.

    HUD seeks comment on which, if any, of the following new requirements to include, and seeks suggestions on any others that should be required:

    • The term of the assistance (e.g., number months for which it is being provided);

    • The type of assistance being provided (e.g., tenant- or project-based rental assistance, rental arrears);

    • The amount of funds to be paid by the recipient/subrecipient and the amount to be paid by the tenant;

    • the address of the property for which payments are being made; and

    • the signature and date of both the recipient/subrecipient representative and the property owner.

    (2) The interim rule states that “a recipient or subrecipient may make rental assistance payments only to an owner with whom the recipient or subrecipient has entered into a rental assistance agreement.” HUD proposes to specify in the final rule that when ESG Rapid Re-housing assistance, either project-based or tenant-based, is used to assist a program participant to move into housing owned by a recipient or subrecipient, a rental assistance agreement is not required. However, under this proposal, the organization would be required to document and maintain on file the elements required to be included in a rental assistance agreement. HUD seeks comment on this proposal.

    g. Lease (§ 576.106(g)). HUD is proposing to add the following requirement to the lease provision of the ESG final rule, for tenant-based rental assistance (it currently only applies to PBRA), and seeks comments on this proposal: “The program participant's lease must not condition the term of occupancy on the provision of rental assistance payments or the household's participation in the ESG program.

    h. Using ESG funds for an unoccupied unit. HUD is considering allowing ESG recipients to choose to continue to assist a current program participant with ESG funds, in tenant- or project-based rental assistance, when a program participant is in an institution (such as a hospital or jail) during a portion of the time they are receiving ESG assistance. If implemented, ESG funds could be used for up to 90 days while that program participant is in the institution. However, if the recipient/subrecipient has knowledge that the program participant will not exit the institution before 90 days (e.g., if the program participant's jail sentence is for longer than 90 days), then the month in which the program participant enters the institution is the last month for which ESG funds may be used for the program participant's unit. This change would ensure consistency with the CoC Program. HUD seeks comment on this proposal.

    i. Advance payments of rental assistance (§ 576.105(a)(3)). HUD is considering prohibiting payments of rental assistance to a property owner for more than 1 month at a time in advance (except when providing an advance payment of the last month's rent under section § 576.105(a)(3)), and seeks comments on this idea.

    j. Subleasing. Under the interim rule, subleasing—that is, the person or organization that holds the primary lease with the owner enters into a lease with an individual to rent the unit—is not allowed, for either tenant-based or project-based rental assistance. If HUD allowed subleasing in the final rule:

    (1) Would this allow recipients to more effectively serve program participants?

    (2) Would it make a significant difference for program participants? In what ways would it help them?

    (3) What language could HUD include in the final rule that would ensure that (a) program participants' rights are protected, and (b) the appropriate payments are made to the owner?

    k. Tenant-based rental assistance (TBRA) (§ 576.106(h)). HUD has received numerous questions about whether recipients may provide ESG assistance outside their Con Plan jurisdiction, allow program participants to move outside their jurisdiction, or limit assistance to residents of the jurisdiction. HUD is considering changing the language at § 576.106(h)(2) to specify the circumstances under which any of the options listed above may be carried out. HUD is considering the following revisions, and seeks comment on them:

    (1) Under ESG TBRA, the program participant must be able to choose the unit in which they will live, with the following specifications:

    (i) The recipient may allow a program participant to choose a unit outside of the recipient's jurisdictional boundaries, may limit TBRA to the recipient's jurisdictional boundaries, or, when necessary to facilitate the coordination of supportive services, may limit TBRA to a designated geographic area that encompasses, overlaps, or falls within the recipient's jurisdictional boundaries.

    (ii) Unless otherwise specified by the recipient, a unit of general purpose local government that administers TBRA as a subrecipient may allow a program participant to choose a unit outside of the local government's jurisdictional boundaries, may limit TBRA to the local government's jurisdictional boundaries, or, when necessary to facilitate the coordination of supportive services, may limit TBRA to a designated geographic area—such as the CoC's geographic area—that encompasses, overlaps, or falls within the recipient's jurisdictional boundaries.

    (iii) Unless prohibited by the recipient, a private nonprofit organization that administers TBRA as a subrecipient may allow a program participant to choose a unit outside of the recipient's jurisdictional boundaries or, when necessary to facilitate the coordination or provision of services, may limit TBRA to a designated geographic area—such as the CoC's geographic area or a smaller area within the recipient's jurisdiction—that encompasses, overlaps, or falls within the recipient's jurisdictional boundaries.

    (2) The amount or type of assistance cannot be conditioned on the program participant moving outside the jurisdiction's boundaries (that is, a recipient or subrecipient may not require that a program participant move outside the jurisdiction in order to receive the rental assistance).

    (3) HUD is considering establishing a requirement, in the final rule, that recipients must not deny ESG Rapid Re-housing assistance to homeless individuals and families based on whether or not their last permanent residence was in the recipient's jurisdiction. That is, if a person is homeless on the streets or in an emergency shelter in a jurisdiction and is seeking ESG-funded Rapid Re-housing assistance, they must be able to be assessed for, and, if eligible, receive, ESG Rapid Re-housing assistance, regardless of whether their last residence was inside or outside of the jurisdiction. HUD seeks comment on this idea, and feedback about any issues that this might raise with the implementation of ESG or communities' efforts to end homelessness.

    l. Project-based rental assistance (PBRA) (§ 576.106(i)). HUD received many comments about how to implement PBRA for the Rapid Re-housing and Homelessness Prevention components. HUD recognizes that using ESG funds to provide PBRA for these types of assistance is challenging; however, including PBRA as an option for recipients and subrecipients to use when providing assistance is statutorily required. Therefore, HUD is looking for ways to further align the rule with TBRA and eliminate some of the burdensome requirements. However, at its core, PBRA is a different type of housing solution and carries with it special considerations. Below are issues related to PBRA about which HUD is considering revisions to the rule and on which HUD seeks additional public comment. HUD welcomes other suggestions on ways to improve the administration of PBRA as well.

    (1) HUD is considering defining “project-based rental assistance” as follows: “Project-based rental assistance, for purposes of the ESG program, means rental assistance that a recipient or subrecipient provides for individuals or families who live in a specific housing development or unit, and the assistance is attached to the development or unit.”

    (2) Some commenters recommended that HUD remove the 1-year lease requirement and allow for a lease like TBRA with a flexible term. HUD is considering adopting this recommendation, but seeks additional comment on potential impacts that this policy would have.

    (3) The interim rule, at § 576.106(i)(4), provides that if the project-based rental assistance payments are terminated for a particular program participant, the household may stay in its unit (subject to the terms of the lease) and the rental assistance may be moved to another unit in the same building. HUD is considering allowing the assistance to be transferred to another unit in a different building in the same development, and seeks comment on this idea, particularly whether it would increase flexibility.

    6. Administrative Activities (§ 576.108) & Indirect Costs (§ 576.109):

    a. Training. For § 576.108(a)(2), HUD is considering changing the language in the final rule to allow ESG to pay for the costs of a subrecipient to attend a training provided by the recipient on ESG, and more clearly establish the limits of the training allowed under ESG, as follows: “Eligible training costs include the costs of providing training on ESG requirements and attending HUD-sponsored, HUD-approved, or recipient-sponsored ESG training.”

    b. Other comments. HUD seeks other feedback regarding changes it should make for the final rule about eligible Administrative costs and indirect costs. However, note that the 7.5 percent cap on Administrative costs is statutory and therefore HUD is prohibited from changing it. Also, HUD must also comply with the OMB requirements on cost principles when making any changes to the language.

    7. Submission Requirements and Grant Approval (Joint Agreements) (§ 576.200): MAP-21 included a provision allowing the following: “A metropolitan city and an urban county that each receive an allocation under such title IV [of the McKinney-Vento Homeless Assistance Act] and are located within a geographic area that is covered by a single continuum of care may jointly request the Secretary of Housing and Urban Development to permit the urban county or the metropolitan city, as agreed to by such county and city, to receive and administer their combined allocations under a single grant.” In the final rule, HUD is considering establishing the requirements for recipients to request a joint allocation of ESG funds, and seeks comment on the following ideas:

    a. Coordination with CDBG. A jurisdiction may only enter into a joint agreement with another jurisdiction for ESG if it will also have a joint agreement with that jurisdiction for CDBG for the same program year. Also, under the CDBG program, only a single metropolitan city and urban county may enter into a joint agreement; therefore, this limitation would apply to ESG as well. That is, only a metropolitan city and urban county that each receives an ESG allocation, which are located within a geographic area that is covered by a single CoC and which receive a joint allocation for CDBG, may enter into joint agreements.

    b. Timing of the joint agreement. The first time the jurisdictions enter into a joint agreement, the entities may enter into a joint agreement for any program year (that is, they would not have to wait until the next time the urban county requalifies as an urban county to enter into a joint agreement). However, the duration of the agreement must be until the next time the urban county requalifies as an urban county (currently this occurs every 3 years).

    c. Lead entity responsibilities. The recipients must select a “lead entity” for the joint grant, which must be the lead entity for CDBG. The responsibilities of the lead entity are as follows:

    (1) The lead entity, as the ESG recipient, assumes full responsibility for the execution of the ESG program under 24 CFR part 576, with respect to the Consolidated Plan requirements at 24 CFR part 91, and with respect to the joint grant. HUD will hold the lead entity accountable for the accomplishment of the ESG program, for following its Consolidated Plan, the grant agreement, and for ensuring that actions necessary for such accomplishment are taken by all subrecipients; and

    (2) The lead entity is required to submit the ESG portions of the Action Plan and the CAPER for the entire geographic area encompassed by the joint agreement.

    d. Cooperation agreement. The jurisdictions must execute a legally binding “cooperation agreement” that establishes each recipient's desire to combine their grant allocations and administer a joint ESG program, establishes which government will be the lead entity, identifies and authorizes the lead entity to act in a representative capacity for the other government for the purposes of the joint ESG program, and provides that the lead entity assumes overall responsibility for ensuring the joint ESG program is carried out in compliance with the requirements of 24 CFR part 576.

    e. Requirements of the joint request. The lead entity must submit the joint request to HUD before the entities start their Consolidated Plan in the eCon Planning Suite (this is because a single identification is required in the system). At a minimum, the joint request must include:

    (1) A letter from the lead entity that identifies which governments seek to combine their grant allocations and administer a joint ESG program for their jurisdictions and indicates which federal fiscal year(s) grants the governments seek to combine;

    (2) A copy of the cooperation agreement; and

    (3) Documentation that shows the lead entity has sufficient authority and administrative capacity to administer the joint grant on behalf of the other government (if the joint agreement arrangement requires the lead entity to provide assistance outside its jurisdiction, the lead entity may want to consider including this in the documentation, specifically).

    f. Approval of the joint request. A joint request will be deemed approved unless HUD notifies the city and the county otherwise within 45 days following submission of the joint request.

    g. Consolidated Plan requirements.

    (1) The metropolitan city and urban county must align their Consolidated Plan program years (done via the process at § 91.10).

    (2) For the program year that the jurisdictions enter into a joint agreement, HUD is reviewing whether to require the lead entity to submit a new Consolidated Plan (because the former Consolidated Plan would no longer reflect the correct recipient and information). However, in the case that entities enter into a joint agreement in the middle of an urban county requalification period, this would not “restart the clock” for that time period.

    i. Grant amount total. When two or more entities enter into a cooperation agreement and sign a joint grant agreement with HUD, the grant amount is the sum of the amounts authorized for the individual ESG recipients.

    j. ESG subrecipient. An urban county or metropolitan city that has entered into a joint agreement under the ESG program is permitted to apply to the state for ESG funds, if the state allows.

    8. Matching Requirement (§ 576.201):

    HUD has received numerous questions seeking clarifications on the match requirements. HUD is carefully reviewing whether and how to amend and clarify this section, with the goal of helping recipients better understand the match requirement and be able to meet it. HUD seeks comment on the following ideas:

    a. Additional sources of matching contributions. HUD received a comment requesting that HUD reconsider § 576.201(c)(1), in which all matching contributions must meet all requirements that apply to the ESG funds provided by HUD . . .” HUD is considering adding exceptions to this rule—that is, HUD is considering providing a list of activities that are not eligible to be paid for with ESG funds but could be used as match, because they are technically eligible according to the statute, but not by rule. This list would include costs such as: Training costs for ESG recipients/subrecipients at ESG-related (but not HUD-sponsored) conferences such as those hosted by the National Alliance to End Homelessness or the Council of State Community Development Agencies (COSCDA); or the cash value of donated household furnishings and furniture for program participants to help establish them in housing, which can contribute to stability. HUD seeks comment on this proposal and suggestions for other items to include on this list.

    b. Cash match. HUD is considering additional ways to enable subrecipients to contribute match to the recipient's program to meet the matching requirement. Section 416 of the McKinney-Vento Homeless Assistance Act states that recipients are “required to supplement the [ESG funding] . . . with an equal amount of funds from sources other than [ESG].” HUD has interpreted this requirement to mean that the matching funds must be contributed to and used to support the recipient's ESG program. Any policy designed to improve flexibility must meet this statutory requirement. Given this restriction, HUD seeks feedback and ideas for ways to clarify or expand the current regulatory language to improve recipients' ability to meet the matching requirement. One possible scenario HUD is considering changing the regulation to allow is where a subrecipient conducts two (or more) ESG-eligible activities—for example, emergency shelter and rapid re-housing—but only has an agreement with the recipient to receive ESG funds for one—for example, rapid re-housing. HUD is considering changing the rule to allow the funds spent on emergency shelter activities (in this example) to be used to meet the matching requirement, if the activity is conducted in accordance with all ESG requirements and if the recipient includes this emergency shelter activity as a part of the recipient's overall program design (e.g. in the Action Plan and CAPER). HUD might even consider requiring it to be included in the subrecipient's funding agreement, but seeks comment on whether this would be too burdensome. Would this be helpful? Are there any other issues HUD should consider in determining whether and how to change this policy?

    c. Noncash contributions (depreciation of donated buildings) (§ 576.201(d)(2)). The interim rule does not allow the depreciation of the value of a donated building to be used as match, because currently, for donated buildings, match only includes the purchase value of the building in the year it was donated. HUD is considering allowing depreciation of donated buildings to be used as a source of in-kind match in the final rule, by changing the language at § 576.201(d)(2) to the following:

    For equipment and buildings donated by a third party, the recipient may count as match either the property's fair market value or the depreciation amounts that would otherwise be allowable costs. The fair market value must be independently appraised when the recipient or subrecipient receives title. This value may only be divided and counted as match for fiscal year grants that are active when the property is first used in an ESG activity or project. If a property's fair market value is counted as match, the property's depreciation amounts cannot be counted as match or allowable costs for any federal grant. Annual depreciation amounts must be determined in a manner consistent with Generally Accepted Accounting Principles (GAAP) and may be counted as match for those fiscal year grants for which the amounts would be allowable costs under the applicable cost principles, provided that those amounts are never charged to any Federal grant.

    d. Memorandum of understanding for noncash services as match. For noncash services (e.g., volunteer services), HUD is also considering adopting the CoC Program requirement (at § 578.73(c)(3)), requiring a memorandum of understanding between the recipient or subrecipient and the third party that will provide the services. This would provide for consistency with the CoC Program and also ensure that the amounts used as match are consistently applied.

    e. When to count matching funds. HUD proposes to clarify that the matching funds are counted as match for the ESG program when the allowable cost is incurred, or, for in-kind match, when the donated service is actually provided to the recipient/subrecipient or the donation is used for the program.

    f. Other programs as match for ESG. Sometimes, other programs cannot be used as match for ESG because their requirements conflict with ESG requirements. For example, HOME TBRA funds may be used for more than 24 months, whereas ESG funds are capped at 24 months of assistance (also, HOME TBRA funds must not require services, whereas ESG requires monthly case management under the interim rule—see section II.C.15.b. of this Notice). In the final rule, HUD is considering specifying that when HOME TBRA, or any program where the program time limit may be extended beyond 24 months, is used as match for the ESG Program funds, any renewal to extend that other program's assistance beyond 24 months would not invalidate its use as match for ESG for up to 24 months. In other words, the ESG recipient would be able to count as match the HOME TBRA funds that meet all of the ESG requirements for up to 24 months (if the case management requirement is removed, as discussed below), but not count any funds expended beyond that time period. HUD seeks comment on this idea.

    9. Obligation, Expenditure, and Payment Requirements (§ 576.203(a)(i)):

    a. State as HMIS lead. To account for situations where the state is the HMIS lead, HUD is considering augmenting the state obligation requirement, as follows: “With respect to funds for HMIS: if the state is the HMIS lead, this requirement may be met by a procurement contract or written designation of a department within the state government to directly carry out HMIS activities.

    b. Exceptions. HUD is considering adding an exception to § 576.203, to allow HUD to grant a recipient an extension of up to 3 months for the obligation requirements and up to 12 months for the expenditure deadline, for good cause.

    c. Subrecipient agreements. HUD is considering establishing, in the final rule, minimum elements that must be included in any subrecipient agreement. Although 2 CFR part 200 includes certain elements that must be provided to subrecipients at the time of the award (at 2 CFR part 200.331), the ESG rule contains more specific language about the ESG requirements that apply to subrecipients and language that must be included in the subrecipient agreement (such as any written standards the recipient requires the subrecipient to develop), so it might be helpful to include them all in one place. HUD seeks comment on whether it would be most helpful to include the minimum required elements for a subrecipient agreement in the regulation (e.g. to improve ease of recipients for monitoring their subrecipients and/or reduce burden for recipients), or whether to instead issue guidance, such as a sample subrecipient agreement.

    10. Pre-Award Costs (§ 576.204): HUD is reviewing whether to explicitly allow pre-award costs in the final rule, and to describe requirements that must be met before charging them to the grant. HUD is considering including the following language:

    ESG recipients may use grant funds to pay pre-award costs incurred on or after the recipient's program year start date, under the following conditions:

    (1) The costs and corresponding activities must comply with the requirements under this part (including the environmental review requirements in section § 576.407(d)); and

    (2) Before incurring pre-award costs, the recipient must describe the corresponding activities in its proposed action plan and satisfy the recipient's citizen participation plan requirements addressing § 91.105(b) (for local governments and territories) or § 91.115(b) (for states).

    11. Reallocations (§§ 576.301, 576.302, and 576.303):

    a. Timeframe for substantial amendments (§ 576.301(c), § 576.302(c), and § 576.303(d)). HUD is considering lengthening the time allowed for a recipient to submit a substantial amendment to its Consolidated Plan when the recipient has received reallocated funds, from 45 days after the date of notification to 60 or 90 days after the date of notification, or even allowing state recipients to reallocate the funds within its normal Consolidated Plan allocation process. This would allow recipients to have more time and flexibility to align the substantial amendment and funds with the following year's Consolidated Plan/Action Plan. HUD seeks comment on this proposal.

    b. Reallocation of State ESG funds (§ 576.302). HUD is also considering changes to the process when a State declines its ESG allocation, which is described at § 576.302. HUD seeks comment on the following two options:

    (1) Remove the paragraph at § 576.302(a)(2), which requires HUD to make ESG funds available to all of the non-urban counties in a state. HUD is considering this change because it believes it might be administratively infeasible for a number of reasons, including that each of the non-urban counties would be required to develop and submit an abbreviated Consolidated Plan that meets HUD's requirements. It is likely that the metropolitan cities and urban counties that already receive an allocation of CDBG funds are those best suited for, and capable of, administering the ESG program; or

    (2) Change the requirement so that the funds declined by a state are distributed by formula to other state recipients.

    c. Reallocation of local government ESG funds (§ 576.301(d)). HUD is considering the following change related to reallocation of grant funds returned by a metropolitan city or an urban county, under § 576.301(d) (changed or added sections italicized):

    The same requirements that apply to grant funds allocated under § 576.3 apply to grant funds reallocated under this section, except that the state must distribute:

    (1) Funds returned by metropolitan cities:

    (i) First, to private nonprofit organizations operating in the metropolitan city's jurisdiction;

    (ii) If funds remain, to private nonprofit organizations and units of general purpose local government located throughout the state; and

    (2) Funds returned by urban counties:

    (i) First, to private nonprofit organizations and units of general purpose local government within the county, excluding metropolitan cities that receive ESG funds and governments that are part of the urban county;

    (ii) Next, to metropolitan cities within the county that receive ESG funds; then

    (iii) If funds remain, to private nonprofit organizations and units of general purpose local government located throughout the state, excluding governments that are part of the urban county.

    12. Area-Wide Systems Coordination Requirements—Consultation and Coordination (§ 91.100(a)(2) and (d), § 91.110(b) and (e), § 576.400(a), (b), and (c)):

    a. ESG recipient Consultation with Continuums of Care. HUD recognizes that for some ESG recipients, such as states that must coordinate with many CoCs and metropolitan cities/urban counties that must coordinate with regional CoCs, the requirements in this section of the regulation can present a challenge. However, HUD believes that this consultation process is critical for the ESG recipient to be able to plan for the best use of resources in the relevant area(s). HUD has received many questions about how ESG recipients should consult with the CoC(s) to meet the current requirements effectively. Based on these questions, HUD seeks general comment on the following questions to inform the inclusion of any additional consultation requirements in the final rule:

    (1) The practices and processes that recipients and CoCs have used to meet the consultation requirements and feedback, positive and negative, based on local experiences with the consultation process. HUD seeks constructive suggestions on how to improve local consultation, particularly through changes to the final rule.

    (2) HUD received a comment that it may be particularly difficult for ESG recipients to consult and coordinate with Balance of State CoCs. HUD is interested in hearing from other state recipients on whether they are experiencing a similar challenge. HUD also seeks comment on whether there are any requirements that could be added or removed from the interim rule to alleviate this issue.

    (3) With respect to reallocation of funds under § 576.301, HUD is considering adding a stronger role for CoCs, in particular to help decide where the funds should be allocated. HUD is considering requiring that a state ESG recipient consult with the CoC covering the jurisdiction that returned the funds, and, if funds remain after the state distributed funds in accordance with § 576.301(d)(1), then the state must consult with CoCs covering other areas of the state in which it proposes to distribute the funds in accordance with § 576.301(d)(2). HUD seeks comment on this potential requirement.

    (4) Should HUD specify different standards for consultation for different types or sizes of jurisdictions? For example, when the metropolitan city's or urban county's jurisdiction covers the exact geographic area as the CoC, HUD could require monthly consultation; for a county-based CoC with more than one ESG recipient, HUD could require consultation four times per year with each ESG recipient; for a state ESG recipient that includes multiple CoCs, HUD could require a lower level of consultation. HUD seeks feedback on this concept.

    (5) Should HUD require an MOU between the CoC and the Consolidated Plan jurisdiction detailing how they will collaborate?

    b. Defining “consultation,” “coordinating,” and “integrating.” HUD received several comments requesting a definition of “consultation” with CoCs (§ 576.400(a)), examples of “coordinating and integrating” ESG-funded activities with other programs targeted to homeless people in the area covered by the CoC (§ 576.400(b)) and with mainstream resources for which homeless and persons at risk of homelessness might be eligible (§ 576.400(c)). Therefore, HUD seeks comment on the following questions:

    (1) Should definitions of “consultation,” “coordinating,” and “integrating” be included in HUD's regulations in 24 CFR part 91 and/or 24 CFR part 576? Considering the manner in which your jurisdiction currently consults, coordinates, and integrates, what should the definition(s) include? HUD is particularly interested in how an ESG recipient whose jurisdiction is incorporated into multiple CoCs' geographic areas, especially states, meets these requirements and what sort of definition would work best for these recipients.

    (2) Instead of establishing one definition, HUD could require jurisdictions to define these terms themselves in their Consolidated Plan, and meet their own requirements. Would jurisdictions prefer this option? HUD specifically requests examples of definitions that jurisdictions would implement.

    (3) Should HUD set a different standard for states? If so, how should it be different?

    c. Improving collaboration between ESG recipients and CoCs. HUD is considering a change to the CoC Program interim rule and the ESG interim rule that would require all CoC boards to include a member from at least one Emergency Solutions Grants program (ESG) recipient's staff located within the CoC's geographic area. HUD would consider this change in order to promote meaningful collaboration between CoCs and ESG recipients. For states and other recipients whose jurisdictions cover more than one CoC, this might mean that a representative of the recipient would be required to be on multiple CoC boards. When a CoC's geographic area contains multiple ESG recipients' jurisdictions, it might mean that not all ESG recipients will be required to be on the CoC's board. However, when asked to participate on the CoC's board, ESG recipients would be required to participate. Ultimately, it is the responsibility of the CoC to develop a process for selecting the board. HUD is requesting comment on this proposed requirement for ESG recipients, including potential challenges. Ensuring that ESG recipients are coordinating closely with the CoC is important to HUD; therefore, in communities where ESG recipients and/or CoCs do not believe that this requirement is feasible, HUD asks commenters to provide suggestions for how ESG recipients can be involved in the CoC at one of the core decision-making levels.

    d. Consulting with tribal groups. HUD received several comments requesting that HUD include tribal groups as a part of the required consultation process. Should HUD require consultation with tribal groups to the extent that the recipient intends to fund organizations serving people or activities on tribal lands?

    e. Requiring coordination with CoC and Rural Housing Stability Programs (§ 576.400(b)). HUD proposes to add the CoC and Rural Housing Stability Programs to the list of “other targeted homeless services” with which ESG recipients must coordinate, at § 576.400(b).

    f. Other feedback. In general, with respect to the consultation and coordination requirements:

    (1) HUD seeks suggestions about particular provisions of the regulation that could be added or removed to assist with implementation and to make the process more useful for jurisdictions and CoCs.

    (2) HUD also seeks feedback about current experiences with the consultation requirements, including what processes and procedures recipients are currently using to meet the requirements, how well these are working in the community, and whether there are specific impediments with the current consultation requirements.

    13. Area-Wide Systems Coordination Requirements—Coordinated Assessment (§ 576.400(d)): HUD received numerous comments on the coordinated assessment requirement in the first public comment period, particularly related to what costs are eligible and how to charge them to the ESG grant. HUD is considering addressing these issues in guidance or including clarifications in the final rule. In addition, HUD intends to change the term “coordinated assessment” to “coordinated entry” in both the ESG and CoC final rules, and therefore uses the term “coordinated entry” in this Notice. However, HUD has also received questions about the following issues, and seeks comment as to whether any changes should be made in the final rule with respect to these questions:

    a. Coordinated entry for walk-ins. How would coordinated entry work under circumstances where the recipient or subrecipient conducts intake based on who walks in—for example, legal services provided on site at a courthouse? Are there special considerations for such instances that HUD should consider in the final rule?

    b. Coordinated entry and Street Outreach. Section 576.400(d): HUD is considering changing § 576.400(d) to clarify that that use of the coordinated entry is not required when providing services under the Street Outreach component. However, the use of coordinated entry will continue to be required by recipients and subrecipients of all other forms of ESG assistance.

    14. Area-Wide Systems Coordination Requirements—Written Standards for ESG Recipients (§§ 91.220(l)(4) and 91.320(k)(3), and 576.400(e)): In its Action Plan, each ESG recipient must establish and consistently apply, or, if it is a state, elect to require that its subrecipients establish and consistently apply, written standards for providing ESG assistance, in accordance with § 91.320(k)(3) for states and § 91.220(l)(4) for metropolitan cities and urban counties and territories. HUD seeks comment on the following questions related to the required written standards:

    a. When subrecipients receive ESG funds from multiple recipients. An ESG recipient or subrecipient could be subject to differing, or even conflicting, written standards. For example, this could occur when a nonprofit subrecipient receives ESG funds from both a state and local government and is subject to two sets of written standards. HUD seeks comments on recipient and subrecipient experiences with multiple funding sources and complying with conflicting written standards. Specifically:

    (1) What have recipients and subrecipients done to resolve any conflicts or prevent confusion?

    (2) Has this been a significant issue? Should HUD address this issue in the final rule, and if so, how? One option could be for HUD to require the local (metropolitan city or urban county) recipient's standards to supersede the state's standards when there is a conflict. What issues might arise if HUD were to establish this requirement?

    b. Asset policy. Under the former Homelessness Prevention and Rapid Re-Housing Program (HPRP), HUD recommended that grantees and subgrantees develop policies to evaluate a household's assets, as a part of considering the full array of “resources and support networks” available to a program participant. HUD also recommended that this policy be consistent throughout the CoC. Under the ESG written standards, HUD is considering requiring recipients to develop such a policy regarding the treatment of assets, in order to more consistently and completely assess a household's resources during the initial and reevaluation for Homelessness Prevention and reevaluations for Rapid Re-housing assistance. HUD seeks comment on local experiences with this under HPRP and whether adding this as a requirement in the written standards would help provide consistency in assessing resources and assets during the initial evaluation and reevaluations for ESG assistance.

    c. Written standards for subrecipients of local governments. In order to provide a greater amount of local flexibility in limiting and prioritizing eligibility for ESG assistance, HUD is considering allowing ESG recipients that are local governments and territories to pass the requirement to establish written standards down to their subrecipients, similar to the regulation for states at §§ 91.320(k)(3) and 576.400(e)(2).

    d. Other feedback. HUD will carefully consider the written standards to be included in the final rule, and seeks feedback about the current written standards, based on recipient and subrecipient experiences. Specifically:

    (1) How have the existing written standards helped the recipient or subrecipient design and run its ESG program?

    (2) Are there other written standards that HUD should be require? Are there any that are not useful?

    (3) Are there any where a slight clarification in the language would help recipients understand and implement the requirement more effectively?

    e. Written standards for projects. If HUD were to adopt the definition of “project” proposed earlier in this Notice, HUD would consider allowing written standards to be established at the project level. The purpose of doing this would be to improve the ease of administering the program, for recipients and subrecipients. For example, if an emergency shelter project consists of more than one emergency shelter buildings, allowing a recipient—or even a subrecipient—to establish written standards at the project level may be administratively easier. HUD seeks comment on whether this would be helpful, or whether there might be any problems with adopting written standards at the project level.

    f. Limiting eligibility and targeting ESG assistance. HUD proposes to specify, in the final rule (either in the written standards at § 576.400(e) or at § 576.407), when and how recipients and subrecipients may establish stricter criteria for eligibility and target assistance to particular groups and subpopulations of homeless persons. Under the interim rule, the recipient, or subrecipient, under limited circumstances, may only allow targeting or limiting of eligibility via the written standards; if not included with sufficient specificity, subrecipients may not target program participants or impose stricter eligibility criteria. For example, a project designed for homeless veterans and their families must serve homeless persons who are not veterans unless the applicable written standards explicitly authorize that project or project type to limit eligibility to veterans and their families. HUD seeks to make this process simpler, and establish clearer guidelines. HUD is considering allowing subrecipients to target and set stricter eligibility criteria with the approval of the recipient—without requiring that the policy be included in the written standards—or allowing the recipient to establish a policy for targeting or setting stricter eligibility criteria for all subrecipients in the written standards.

    Specifically, HUD seeks comment on the following questions regarding the requirements at § 576.400(e) related to establishing stricter eligibility criteria or prioritizing ESG assistance:

    (1) At what level should decisions about targeting and eligibility for homelessness prevention and rapid re-housing be made—the recipient level, the CoC level, the subrecipient level, or some combination? Have the existing requirements to include such decisions in the applicable written standards created an impediment to the recipient's or subrecipient's flexibility? If so, how?

    (2) Likewise, at what level should decisions about emergency shelter and street outreach be made—the local government recipient level, the CoC level, the subrecipient level, or some combination?

    (3) Is it burdensome for recipients to include specific policies for setting stricter eligibility criteria or targeting assistance in their written standards in the Action Plan?

    (4) What impact would these proposed policies have on the program participants?

    (5) HUD welcomes other feedback and thoughts about the targeting/eligibility proposal described above.

    15. Evaluation of Program Participant Eligibility and Needs (§ 576.401):

    a. Initial evaluations (§ 576.401(a)). HUD is reviewing whether to distinguish between an initial evaluation under the Street Outreach and Emergency Shelter components and an initial evaluation under the Homelessness Prevention and Rapid Re-housing components. Specifically, HUD is considering providing that, while an initial evaluation will still be required under Street Outreach and Emergency Shelter, the recipient/subrecipient will not be required to determine “the amount and type of assistance the individual or family needs to regain stability in permanent housing” as a part of the evaluation for assistance. HUD seeks feedback as to whether this would be helpful, or if any important information could be lost if HUD does not require this.

    b. Housing stability case management requirements (§ 576.401(e)(i)). The interim rule requirements for monthly meetings with a case manager and developing a housing stability case plan are intended to help ensure that the ESG-funded emergency, short-, or medium-term assistance will be effective in assisting program participants regain long-term housing stability and avoid relapses into homelessness. It also has the effect of emphasizing that ESG is intended to serve those who are most in need of the assistance. Finally, it helps recipients ensure that they are spending scarce ESG funds on program participants that are still in the units. However, HUD received many comments about this requirement, and has also determined that this case management requirement prevents recipients and subrecipients from using HOME TBRA funds as match for ESG because services must not be mandatory when providing HOME TBRA assistance. HUD seeks additional comment on the following questions:

    (1) HUD requests that recipients/subrecipients inform HUD about their experiences with these requirements; for example, how does your organization fulfill these requirements? If HUD were to clarify in the final rule that a meeting by phone or videoconference would suffice (which is allowed now but not explicit in the rule), does that make a difference? If HUD were to allow the monthly meeting to simply consist of a brief check-in or follow-up with the program participant (but still be charged as a case management activity), would that help?

    (2) If HUD should change the requirement, what would be a more preferable case management requirement? For example, HUD could change the language to require program participants to meet with a case manager “at a frequency appropriate to the client's needs.” What might be the positive and negative effects of making this change?

    (3) Are these requirements effective in assisting the program participants to achieve stability? Do they encourage recipients/subrecipients to serve those who are most in need? If not, then knowing that the intended purpose of case management is to ensure that the ESG-funded emergency, short- or medium-term assistance will be effective in helping program participants regain long-term housing stability and avoid relapses into homelessness, is there a requirement that could be added—instead of case management—that would meet the intended purpose, but not require recipients or subrecipients to conduct monthly case management?

    16. Shelter and Housing Standards (§ 576.403): HUD received significant feedback and comment about the “habitability standards,” and seeks comments on the following proposals:

    a. Essential services only (emergency shelters). Under the interim rule, if a shelter only receives ESG funds for essential services costs, it is not currently required to meet the minimum standards for emergency shelters at § 576.403(a). HUD is reviewing whether to require an emergency shelter to meet these minimum standards if the emergency shelter receives ESG funding for essential services. This would include emergency shelters, including day shelters that receive non-ESG funds for operating expenses but use ESG for the provision of essential services to persons in the shelter. It would not include a subrecipient that receives ESG for essential services only but is not an emergency shelter (e.g., a legal services provider).

    b. Housing Relocation and Stabilization Services only (Homelessness Prevention assistance to remain in unit). HUD is considering removing the requirement that a unit must meet the minimum habitability standards for permanent housing when homelessness prevention assistance, under § 576.105(b) (services only), is used to help a program participant remain in the unit. Alternatively, HUD could allow ESG funds to be used to help a program participant remain in their unit for a short time (up to 30 days) before an inspection is performed. In this case, if the unit does not meet the habitability standards at the time of inspection, recipients/subrecipients would be prohibited from using any additional ESG assistance to help the program participant remain in their unit; however, ESG funds could be used to help the program participant move to a new unit. HUD seeks comment on these two options.

    c. Housing Quality Standards. Some recipients might prefer to use HUD's Housing Quality Standards (HQS) instead of the ESG habitability standards; however, HQS is less stringent in the areas of fire safety and interior air quality, which is why it cannot be used to meet the habitability standards under the interim rule. However, HUD recognizes that HQS is the standard used for other HUD programs, and allowing it to be used may reduce the burden of meeting this requirement for some recipients and subrecipients. Therefore, for the final rule, HUD is considering explicitly allowing a certification that a particular permanent housing unit meets HQS to qualify as meeting the minimum standards for permanent housing under ESG.

    17. Conflicts of Interest (§ 576.404):

    a. Organizational conflicts of interest (§ 576.404(a)). Based on experiences with HPRP, HUD included a provision in the ESG interim rule that was intended to ensure that recipients or subrecipients would not “feather their own nests”—that is, steer program participants into housing that they own or only serve those that are already in housing that they own. This provision, at § 576.404(a), states: “No subrecipient may, with respect to individuals or families occupying housing owned by the subrecipient, or a parent or subsidiary of the subrecipient, carry out the initial evaluation required under § 576.401 or administer homelessness prevention assistance under § 576.103.” With respect to this conflict of interest provision:

    (1) HUD is considering including recipients in this conflict of interest requirement. Based on recipient/subrecipient experiences, is this an issue that warrants concern?

    (2) For rapid re-housing only, HUD is considering removing this provision altogether. That is, HUD could allow recipients/subrecipients to rapidly re-house “Category 1” homeless program participants into housing that they or their parent/subsidiary organization owns, because in some cases, these providers might be some of the most well-suited in the community to provide the assistance that persons being rapidly re-housed need. Are there any potential issues with this? Should HUD leave the requirement in place as-is, to prevent potential steering or conflicts of interest?

    (3) For homelessness prevention assistance and rapid re-housing assistance (if HUD retains the conflict of interest requirement for rapid re-housing), HUD is considering adding a provision to prohibit recipients/subrecipients from providing housing search and placement services to assist program participants to move into housing that the recipient/subrecipient owns. HUD seeks comment on this idea.

    b. Individual conflicts of interest (§ 576.404(b)). It is generally HUD's policy under its homeless programs to prohibit personal conflicts of interest. For example, if a city staff member makes decisions about grants and also sits on the board of directors of a potential subrecipient, this should be a conflict of interest that requires an exception from HUD. This was omitted from the ESG interim rule; HUD is considering including this provision in the final rule. HUD seeks comment on how significant an issue this type of conflict of interest is, based on the experience of recipients, subrecipients, and other stakeholders in the community, and whether HUD should prohibit it without requiring an exception.

    18. Other Federal Requirements—Limiting Eligibility and Targeting (§ 576.407): The emergency shelter or housing may be limited to a specific subpopulation so long as the recipient/subrecipient does not discriminate against any protected class under federal nondiscrimination laws in 24 CFR 5.105 (e.g., the housing may be limited to homeless veterans and their families, victims of domestic violence and their families, or chronically homeless persons and families), and does comply with the nondiscrimination and equal access requirements under 24 CFR 5.109, and § 576.406. HUD seeks comment on the following policies proposed for inclusion in the final rule, for permanent housing and for emergency shelters:

    a. Rapid Re-housing and Homelessness Prevention. A project 4 may limit eligibility to or provide a preference to subpopulations of individuals and families who are homeless or at risk of homelessness and need the specialized services offered by the project (e.g., substance abuse addiction treatment, domestic violence services, or a high intensity package designed to meet the needs of hard-to-reach homeless persons). While the project may offer services for a particular type of disability, no otherwise eligible individuals with disabilities or families including an individual with a disability, who may benefit from the services provided, may be excluded on the grounds that they do not have a particular disability.

    4 Here, HUD is using the word “project” as it is proposed above in this Notice. If HUD ultimately adopts a different definition or term based on public comments received, HUD will adjust this provision accordingly.

    b. Emergency shelters. Recipients and subrecipients may exclusively serve a particular homeless subpopulation in emergency shelter if the shelter addresses a need identified by the recipient and meets one of the following conditions:

    (1) The emergency shelter may be limited to one sex where it consists of a single structure with shared bedrooms or bathing facilities such that the considerations of personal privacy and the physical limitations of the configuration of the emergency shelter make it appropriate for the shelter to be limited to one sex;

    (2) The shelter may be limited to families with children, but if it serves families with children, it must serve all families with children (it may not separate based on the age of a child under 18, regardless of gender);

    (3) If the shelter serves at least one family with a child under the age of 18, the shelter may exclude registered sex offenders and persons with a criminal record that includes a violent crime from the project so long as the child is served in the shelter; and

    (4) An emergency shelter may limit admission to or provide a preference to subpopulations of homeless individuals and families who need the specialized services provided (e.g., substance abuse addiction treatment programs; victim service providers that serve both men and women; veterans and their families). While the shelter may offer services for a particular type of disability, no otherwise eligible individuals with disabilities or families including an individual with a disability, who may benefit from the services provided, may be excluded on the grounds that they do not have a particular disability.

    19. Recordkeeping and Reporting Requirements (§ 576.500):

    a. At risk of homelessness (§ 576.500(c)(1)(iv)). Under the “at risk of homelessness” recordkeeping requirements at § 576.500(c)(1)(iv), HUD is considering including, in the final rule, specific documentation standards for each of the seven conditions that would be required for a program participant to qualify for assistance under this definition. Note that HUD will consider comments received here with the other comments requested on this characteristic earlier in this document. The changes are as follows:

    (A) Has moved because of economic reasons two or more times during the 60 days immediately preceding the application for homelessness prevention assistance. Acceptable documentation includes, but is not limited to: Certification by the individual or head of household and any available supporting documentation that the individual or family moved two or more times during the 60-day period immediately preceding the date of application for homeless assistance, and that the reasons for the moves were economic. Such supporting documentation could include:

    (1) For documentation of “two or more moves:” Recorded statements or records obtained from each owner, renter, or provider of housing in which the individual or family resided; proof of address and dates of residency at two or more locations, such as a utility bill or lease;

    (2) For documentation of “economic reasons:” Other third-party verification to document that the reasons for the moves were economic, including notifications of job termination or reduction in hours, documentation of different jobs in different locations (e.g., migratory workers), or job applications; bills and statements, such as utility bills or medical bills, demonstrating a sudden increase in expenses; bank statements demonstrating that the household could not afford rent; or, where such statements or records are unobtainable, a written record of the intake worker's due diligence in attempting to obtain these statements or records.

    (B) Is living in the home of another because of economic hardship. Acceptable documentation includes, but is not limited to: Certification by the individual or head of household and any available supporting documentation that the individual or family is living in the home of another because of economic hardship. Such supporting documentation could include: Written/recorded statements or records obtained from the owner or renter in which the individual or family resides and proof of homeownership or the lease by that owner or renter; other third-party verification to document that the reasons the individual or family is living there is because of economic hardship, including notifications of job termination or reduction in hours, or job applications, bills and statements, such as utility bills or medical bills, demonstrating a sudden increase in expenses, bank statements demonstrating that the household could not afford rent; or, where these statements or records are unobtainable, a written record of the intake worker's due diligence in attempting to obtain these statements or records.

    (C) Has been notified in writing that their right to occupy their current housing or living situation will be terminated within 21 days after the date of application for assistance. Acceptable documentation is:

    (1) For living arrangements where there is a written or oral lease agreement under states law: A court order resulting from an eviction action that requires the individual or family to leave their residence within 21 days after the date of their application for homeless assistance; or the equivalent notice under applicable state law; or

    (2) For informal living arrangements, staying with a family or friend (i.e., “love evictions”): An oral statement by the individual or head of household that the owner or renter of the housing in which they currently reside will not allow them to stay for more than 21 days after the date of application for homeless assistance. The intake worker must record the statement and certify that it was found credible. To be found credible, the oral statement must either:

    (i) Be verified by the owner or renter of the housing in which the individual or family resides at the time of application for homeless assistance and documented by a written certification by the owner or renter or by the intake worker's recording of the owner or renter's oral statement; or

    (ii) if the intake worker is unable to contact the owner or renter, be documented by a written certification by the intake worker of their diligence in attempting to obtain the owner or renter's verification and the written certification by the individual or head of household seeking assistance that their statement was true and complete.

    (D) Lives in a hotel or motel and the cost of the hotel or motel stay is not paid by charitable organizations or by Federal, State, or local government programs for low-income individuals. Acceptable documentation includes, but is not limited to: Certification by the individual or head of household and any available supporting documentation that the individual or family is living in a hotel or motel not paid by a charitable organization or government program, such as receipts from the motel/hotel or a written statement from the motel/hotel management; or, where these statements or records are unobtainable, a written record of the intake worker's due diligence in attempting to obtain these statements or records.

    (E) Lives in a single-room occupancy or efficiency apartment unit in which there reside more than two persons or lives in a larger housing unit in which there reside more than 1.5 persons per room, as defined by the U.S. Census Bureau. Acceptable documentation includes, but is not limited to: Certification by the individual or head of household and any available supporting documentation that the individual or family is living in a severely overcrowded situation, such a written statement from the intake worker who visited the unit and witnessed the severely overcrowded unit or evidence thereof.

    (F) Is exiting a publicly funded institution, or system of care. Acceptable documentation is: Certification by the individual or head of household and any available supporting documentation that the individual or family is exiting a publicly-funded institution or system of care. Such documentation could include: Discharge paperwork or a written or oral referral from a social worker, case manager, or other appropriate official of the institution, stating the beginning and end dates of the time residing in the institution. All oral statements must be recorded by the intake worker; or, where these statements or records are unobtainable, a written record of the intake worker's due diligence in attempting to obtain these statements or records.

    (G) Otherwise lives in housing that has characteristics associated with instability and an increased risk of homelessness, as identified in the recipient's approved Consolidated Plan. Acceptable documentation includes, but is not limited to: A statement, in the approved Consolidated Plan/Annual Action Plan, identifying these characteristics, and available supporting documentation that the individual or family is living in housing that has characteristics associated with instability and an increased risk of homelessness, which must follow HUD's order of priority for documentation: third-party documentation first, intake worker observations second, and certification from the person seeking assistance third.

    b. Determinations of ineligibility—Street Outreach (§ 576.500(d)). HUD is proposing that for the Street Outreach component, HUD will not require recipients/subrecipients to keep documentation of the reason(s) for determinations of ineligibility, in order to reduce a recordkeeping burden. HUD seeks comment on any issues that may arise if this requirement is eliminated.

    c. Maintenance of effort recordkeeping requirement (§ 576.500(l)). The interim rule states: “The recipient and its subrecipients that are units of general purpose local government must keep records to demonstrate compliance with the maintenance of effort requirement, including records of the unit of the general purpose local government's annual budgets and sources of funding for street outreach and emergency shelter services.” This might be an overly burdensome recordkeeping requirement for recipients and subrecipients that are in compliance with this requirement—that is, how does a local government demonstrate that it is not using ESG funds to replace other local government funds? Therefore, HUD is considering removing this from the recordkeeping section. HUD would continue to monitor to ensure that recipients are meeting the requirements of § 576.101(c); this change would simply eliminate a difficult and potentially ineffective recordkeeping requirement. HUD seeks comment on this idea.

    d. Records of services and assistance provided (§ 576.500(l)). Currently, only recipients are required to “keep records of the types of essential services, rental assistance, and housing stabilization and relocation services provided under the recipient's program, and the amounts spent on these services and assistance.” HUD is considering adding “and subrecipients” to this recordkeeping requirement, and seeks comment on whether this change would be burdensome or useful.

    e. Period of record retention (§ 576.500(y)(2) and (3)). Under the interim rule, records for major renovation or conversion must be retained until 10 years after the date ESG funds are first obligated, but the minimum period of use requirements, at § 576.102(c)(1), begin at the date of first occupancy after the completed renovation. HUD is considering whether to change the record retention requirements so that they are the same as the “minimum period of use” requirements in § 576.102(c), as follows: “Where ESG funds are used for the renovation or conversion of an emergency shelter, the records must be retained for a period that is not less than the minimum period of use.” HUD seeks comment on this proposal.

    20. Recipient Sanctions (§ 576.501(c)): Under the interim rule, at § 576.501(c), when a recipient reallocates or reprograms ESG funds as a part of subrecipient sanctions, these funds must be expended by the same deadline as all other funds. HUD is considering removing this expenditure requirement to provide recipients, especially states, with additional flexibility in situations where a subrecipient compliance issue or other impediment causes delays in the recipient's ability to expend all of the funds by the 24-month deadline. HUD seeks comment on this proposal.

    Dated: May 27, 2015. Harriet Tregoning, Principal Deputy Assistant Secretary for Community Planning and Development.
    [FR Doc. 2015-13485 Filed 6-2-15; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF THE INTERIOR Bureau of Safety and Environmental Enforcement 30 CFR Part 250 [Docket ID: BSEE-2015-0002; 15XE1700DX EEEE500000 EX1SF0000.DAQ000] RIN 1014-AA11 Oil and Gas and Sulphur Operations on the Outer Continental Shelf—Blowout Preventer Systems and Well Control AGENCY:

    Bureau of Safety and Environmental Enforcement (BSEE), Interior.

    ACTION:

    Notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    The BSEE is extending the public comment period on the Notice of proposed rulemaking entitled “Oil and Gas and Sulphur Operations on the Outer Continental Shelf—Blowout Preventer Systems and Well Control,” which was published in the Federal Register on April 17, 2015. The original public comment period would have ended on June 16, 2015. However, BSEE received requests from various stakeholders to extend the comment period. The BSEE reviewed the extension requests and determined that a 30-day comment period extension—to July 16, 2015—is appropriate.

    DATES:

    The comment period for the notice of proposed rulemaking published in the Federal Register on April 17, 2015 (80 FR 21504), is extended. Written comments must be received by the extended due date of July 16, 2015. The BSEE may not fully consider comments received after this date.

    ADDRESSES:

    You may submit comments on the proposed rulemaking by any of the following methods. Please use the Regulation Identifier Number (RIN) 1014-AA11 as an identifier in your message.

    • Federal eRulemaking Portal: http://www.regulations.gov. In the entry titled Enter Keyword or ID, enter BSEE-2015-0002 then click search. Follow the instructions to submit public comments and view supporting and related materials available for this rulemaking. The BSEE may post all submitted comments in their entirety.

    • Mail or hand-carry comments to the Department of the Interior (DOI); Bureau of Safety and Environmental Enforcement; Attention: Regulations and Standards Branch; 45600 Woodland Road, Sterling, Virginia 20166. Please reference “Oil and Gas and Sulphur Operations on the Outer Continental Shelf—Blowout Preventer Systems and Well Control, 1014-AA11” in your comments and include your name and return address. Please note that this address for BSEE is new; however, any comments already submitted to BSEE's former address (381 Elden St., Herndon, VA 20171) do not need to be resubmitted to the new address.

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

    FOR FURTHER INFORMATION CONTACT:

    Kirk Malstrom, Regulations and Standards Branch, 202-258-1518, [email protected]

    SUPPLEMENTARY INFORMATION:

    The BSEE published a notice of proposed rulemaking on Blowout Preventer Systems and Well Control on April 17, 2015 (80 FR 21504). This proposed rule is intended to consolidate equipment and operational requirements that are common to other subparts pertaining to offshore oil and gas drilling, completions, workovers, and decommissioning. This proposed rule would focus, at this time, on blowout preventer (BOP) requirements, including incorporation of industry standards and revision of existing regulations. The proposed rule would also include reforms in the areas of well design, well control, casing, cementing, real-time well monitoring, and subsea containment. The proposed rule would address and implement multiple recommendations resulting from various investigations of the Deepwater Horizon incident. This proposed rule would also incorporate guidance from several Notices to Lessees and Operators (NTLs) and revise provisions related to drilling, workover, completion, and decommissioning operations to enhance safety and environmental protection.

    After publication of the proposed rule, BSEE received requests from various stakeholders asking BSEE to extend the comment period on the proposed rule. The majority of those requests sought extensions of 120 days, which would triple the length of the original 60-day comment period. One comment requested a 30-day extension. BSEE also received a written comment from another stakeholder urging BSEE not to extend the comment period because the proposed rule has been in development since the Deepwater Horizon incident, is based on recommendations resulting from that incident, and represents a critical regulatory improvement that should be finalized without delay.

    The BSEE has considered those requests and has determined that extending the original 60-day comment period by an additional 30 days will provide sufficient additional time for review of and comment on the proposal without unduly delaying a final rulemaking decision. Accordingly, written comments must be submitted by the extended due date of July 16, 2015. The BSEE may not fully consider comments received after this date.

    Dated: May 28, 2015. Janice M. Schneider, Assistant Secretary, Land and Minerals Management.
    [FR Doc. 2015-13499 Filed 6-2-15; 8:45 am] BILLING CODE 4310-VH-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Part 3100 [LLWO3100 L13100000.PP0000] RIN 1004-AE41 Oil and Gas Leasing; Royalty on Production, Rental Payments, Minimum Acceptable Bids, Bonding Requirements, and Civil Penalty Assessments AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Advance notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    On April 21, 2015, the Bureau of Land Management (BLM) published in the Federal Register an advanced notice of proposed rulemaking (ANPR) to solicit public comments and suggestions that may be used to update the BLM's regulations related to royalty rates, annual rental payments, minimum acceptable bids, bonding requirements, and civil penalty assessments for Federal onshore oil and gas leases. In response to requests received for additional time to provide comment, the BLM is announcing by issuance of this notice that the public comment period for the ANPR will be extended 14 days beyond the end of the initial comment period.

    DATES:

    The comment period for the ANPR published April 21, 2015 (80 FR 22148), is extended. Send your comments on this proposed rule to the BLM on or before June 19, 2015. The BLM need not consider, or include in the administrative record for the final rule, comments that the BLM receives after the close of the comment period or comments delivered to an address other than those listed below (see ADDRESSES).

    ADDRESSES:

    Mail: U.S. Department of the Interior, Director (630), Bureau of Land Management, Mail Stop 2134 LM, 1849 C St. NW., Washington, DC 20240, Attention: 1004-AE41. Personal or messenger delivery: Bureau of Land Management, 20 M Street SE., Room 2134 LM, Attention: Regulatory Affairs, Washington, DC 20003. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at this Web site.

    FOR FURTHER INFORMATION CONTACT:

    Dylan Fuge, Office of the Director, at 202-208-5235, Steven Wells, Division of Fluid Minerals, at 202-912-7143, or Jully McQuilliams, Division of Fluid Minerals, at 202-912-7156, for information regarding the substance of this ANPR. For information on procedural matters or the rulemaking process generally, you may contact Anna Atkinson, Regulatory Affairs, at 202-912-7438. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week to contact the above individuals.

    SUPPLEMENTARY INFORMATION:

    Public Comment Procedures

    If you wish to comment, you may submit your comments by any one of several methods: Mail: You may mail comments to U.S. Department of the Interior, Director (630), Bureau of Land Management, Mail Stop 2134LM, 1849 C Street NW., Washington, DC 20240, Attention: 1004-AE41. Personal or messenger delivery: Bureau of Land Management, 20 M Street SE., Room 2134 LM, Attention: Regulatory Affairs, Washington, DC 20003. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at this Web site.

    Please make your comments as specific as possible by confining them to issues directly related to the content of the ANPR, and explain the basis for your comments. The comments and recommendations that will be most useful and likely to influence agency decisions are:

    1. Those supported by quantitative information or studies; and

    2. Those that include citations to, and analyses of, the applicable laws and regulations.

    The BLM is not obligated to consider or include in the Administrative Record for the rule comments received after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

    Comments, including names and street addresses of respondents, will be available for public review at the address listed under ADDRESSES during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays.

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

    Background

    The ANPR was published on April 21, 2015 (80 FR 22148), with a 45-day comment period closing on June 5, 2015. The ANPR poses questions and seeks information related to potential updates and changes to the BLM's existing regulations governing Federal onshore oil and gas leases related to royalty rates, annual rental payments, minimum acceptable bids, bonding requirements, and civil penalty assessments. Following publication of the ANPR, the BLM received requests for extension of the comment period. In response to those requests, the BLM has decided to extend the comment period on the rule for 14 days, until June 19, 2015.

    Dated: May 26, 2015. Janice M. Schneider, Assistant Secretary, Land and Minerals Management.
    [FR Doc. 2015-13474 Filed 6-2-15; 8:45 am] BILLING CODE 4310-84-P
    DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 2, 5, 7, 8, 10, 12, 15, 16, 19, and 52 [FAR Case 2014-015; Docket No. 2014-0015; Sequence No. 1] RIN 9000-AM92 Federal Acquisition Regulation; Consolidation and Bundling of Contract Requirements AGENCY:

    Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement sections of the Small Business Jobs Act of 2010 and regulatory changes made by the Small Business Administration, which provide for a Governmentwide policy on the consolidation and bundling of contract requirements.

    DATES:

    Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before August 3, 2015 to be considered in the formation of the final rule.

    ADDRESSES:

    Submit comments in response to FAR Case 2014-015 by any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FAR Case 2014-015”. Select the link “Comment Now” that corresponds with “FAR Case 2014-015.” Follow the instructions provided at the “Comment Now” screen. Please include your name, company name (if any), and “FAR Case 2014-015” on your attached document.

    Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405.

    Instructions: Please submit comments only and cite FAR Case 2014-015, in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Mahruba Uddowla, Procurement Analyst, at 703-605-2868, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAR Case 2014-015.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to implement regulatory changes made by the Small Business Administration (SBA) in its final rule which was published in the Federal Register at 78 FR 61113 on October 2, 2013, concerning contract consolidation and bundling. SBA's final rule implements the statutory requirements set forth at sections 1312 and 1313 of the Small Business Jobs Act of 2010 (Jobs Act) (Pub. L. 111-240). This proposed rule will encompass the acquisition of commercial items, including commercially available off-the-shelf (COTS) items.

    Section 1312 of the Jobs Act amends the Small Business Act at 15 U.S.C. 644(q) to require Federal agencies to include in each solicitation for any multiple-award contract above the substantial bundling threshold of the Federal agency a provision soliciting bids from any responsible source, including responsible small business teaming arrangements or joint ventures of small business concerns. Section 1312 requires the FAR be amended to establish a Governmentwide policy regarding contract bundling, including regarding the solicitation of teaming and joint ventures, and to require agencies to publish said policy on their agency Web site. Section 1312 also requires the head of the Federal agency to publish on the Web site of the Federal agency a list and rationale for any bundled contract for which the Federal agency solicited bids or that was awarded by the agency.

    Section 1313 amends the Small Business Act at 15 U.S.C. 657q to define the term “consolidation of contract requirements” to mean the use of a solicitation to obtain offers for a single contract or a multiple-award contract to satisfy two or more requirements of the Federal agency for goods or services that have been provided to or performed for the Federal agency under two or more separate contracts, each of which was lower in cost than the total cost of the contract for which the offers are solicited. The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (2013 NDAA), Public Law 112-239, section 1671 further amended the definition of consolidation to include construction requirements.

    Further, section 1313 prohibits the agency from carrying out an acquisition strategy that includes consolidation of contract requirements of the Federal agency with an estimated total value exceeding $2 million, unless the Senior Procurement Executive or Chief Acquisition Officer for the Federal agency, before carrying out the acquisition strategy—

    • Conducts market research;

    • Identifies any alternative contracting approach that would involve a lesser degree of consolidation of contract requirements;

    • Makes a written determination that the consolidation of contract requirements is necessary and justified;

    • Identifies any negative impact by the acquisition strategy on contracting with small business concerns; and

    • Ensures that steps will be taken to include small business concerns in the acquisition strategy.

    II. Discussion and Analysis

    Amendments to the FAR are proposed by this rule. The proposed changes are summarized in the following paragraphs.

    A. FAR Subpart 2.1, Definitions. This subpart is amended to revise the definition of “bundling” for clarity, incorporating the definition of “bundled contract”, and to add a new definition for “consolidation, consolidation of contract requirements, consolidated contract or consolidated requirement”. In keeping with SBA's final rule and section 1671 of the NDAA for FY 2013, Public Law 112-239, the latter definition also encompasses the consolidation of construction requirements. This subpart is also amended to add a definition for “small business teaming arrangement”.

    B. FAR Subpart 5.2, Synopses of Proposed Contract Actions. A conforming cross-reference has been added at FAR 5.205(g).

    C. FAR Subpart 7.1, Acquisition Plans.

    • FAR 7.103—This section is amended to clarify that agencies are to ensure that unnecessary and unjustified consolidation is avoided.

    • FAR 7.104—This section is amended to remove the substantial bundling thresholds at FAR 7.104. The substantial bundling thresholds are relocated to the proposed new section FAR 7.107-4, Substantial Bundling, for clarity and consistency with the new proposed structure of FAR 7.107. An additional revision was made to clarify that small business is to be a discipline that is represented in the acquisition planning team.

    • FAR 7.105—This section is amended by adding a reference to the statutory authority for limiting the use of acquisition strategies involving the consolidation of contract requirements.

    • FAR 7.107—This section is amended by revising the title of the section and adding the statutory authority for the consolidation of contract requirements. This section also proposes to clarify that if a requirement is considered both consolidated and bundled, the agency must follow the guidance regarding bundling. In addition, this section is amended by restructuring FAR 7.107 to add proposed subsections FAR 7.707-1, General, FAR 7.107-2, Consolidation of contract requirements, FAR 7.107-3 Bundling, FAR 7.107-4 Substantial Bundling, FAR 7.107-5 Notifications, and 7.107-6 Solicitation provision. The proposed revisions are as follows:

    ○ FAR 7.107-1—General. This proposed new section provides information relevant to both consolidation and bundling, such as evaluation of benefits, substantial benefits, and applicability.

    ○ FAR 7.107-2—Consolidation of contract requirements. This proposed new section is added to clarify that an agency may not conduct an acquisition exceeding $2 million that is a consolidation of contract requirements unless the agency's Senior Procurement Executive or Chief Acquisition Officer: (1) Justifies the consolidation by showing that the benefits of the consolidated acquisition substantially exceed the benefits of each possible alternative approach that would involve a lesser degree of consolidation and (2) identify any negative impact by the acquisition strategy on contracting with small business concerns.

    ○ FAR 7.107-3—Bundling. This proposed new section clarifies language regarding the requirements a contracting officer must adhere to prior to conducting an acquisition strategy that involves the bundling of contract requirements.

    ○ FAR 7.107-4—Substantial Bundling. This proposed new section includes the substantial bundling thresholds relocated from FAR 7.104(d) and existing documentation requirements.

    ○ FAR 7.107-5—Notifications. This proposed new section is added to require Federal agencies to: (1) Notify current small business contractors of an agency's intent to bundle a contract requirement that was not previously bundled at least 30 days prior to the issuance of the solicitation; (2) provide public notification of an agency's intent to bundle by publishing on the agency's Web site a list and rationale for any bundled requirement for which the agency solicited offers or issued an award; (3) require the agency to notify SBA of a follow-on bundled or consolidated contract requirement; and (4) publish the Governmentwide policy regarding contract bundling, including regarding the solicitation of teaming and joint ventures, on their agency Web site.

    ○ FAR 7.107-6—Solicitation Provision. This proposed new section is added to prescribe a new provision 52.207-XX “Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts)”, in solicitations for multiple-award contracts that are estimated to be above the agency's substantial bundling threshold.

    D. FAR Subpart 8.4, Federal Supply Schedules. Proposed revisions to FAR 8.404(c)(2) are necessary to apply consolidation requirements to orders.

    E. FAR Part 10, Market Research. Proposed revisions to FAR 10.001 are necessary to add references to the statutory authority for the consolidation of contract requirements.

    F. FAR Subpart 12.3, Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items. Proposed revisions to FAR 12.301(d)(4) are necessary to add a reference to the new provision for multiple-award contracts over the substantial bundling thresholds at FAR 52.207-XX, Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts).

    G. FAR Subpart 15.3, Source Selection.

    • FAR 15.304, Evaluation factors and significant subfactors. This section is amended by adding references to the consolidation of contract requirements.

    H. FAR Subpart 16.5, Indefinite-Delivery Contracts.

    • FAR 16.505, Ordering. This section is amended to apply consolidation requirements to orders.

    • FAR 16.506, Solicitation provisions and contract clauses. This section is amended by adding a cross-reference to the prescription in FAR Subpart 7.1 for a new provision “Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts)”.

    I. Subpart 19.2, Policies.

    • FAR 19.201 General policy and 19.202-1 Encouraging small business participation in acquisitions. These sections are amended by adding references to the consolidation of contract requirements.

    J. FAR Subpart 52.2, Text of Provisions and Clauses.

    • FAR 52.207-XX, Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts). This section is amended to include this provision in solicitations for multiple-award contracts when the estimated contract value is expected to exceed the agency's substantial bundling threshold. The agency shall consider offers from any responsible source, including responsible small business concerns and teaming arrangements or joint ventures of small business concerns.

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Regulatory Flexibility Act

    The change may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The Initial Regulatory Flexibility Analysis (IRFA) is summarized as follows:

    DoD, GSA, and NASA are proposing to amend the FAR to provide uniform guidance consistent with SBA's final rule which was published in the Federal Register at 78 FR 61113 on October 2, 2013, which implements sections 1312 and 1313 of the Small Business Jobs Act of 2010, Public Law 111-240.

    The objective of this proposed rule is to alleviate the adverse effects of contract bundling and consolidation on small business concerns competing for Federal contracts. This rule provides a balance between the benefits of bundling and consolidation and the obstacles they create for small businesses. The authorizing legislation for this action is sections 1312 and 1313 of the Small Business Jobs Act of 2010, Public Law 111-240, and section 1671 of the NDAA for FY 2013 Public Law 112-239. Section 1671 in conjunction with section 1313 now provides for a Governmentwide requirement and threshold for consolidated contracts.

    This rule may have a positive economic impact on any small business entity that wishes to participate in the Federal procurement arena. Analysis of the System for Award Management (SAM) database indicates there are over 351,203 small business registrants that can potentially benefit from the implementation of this rule.

    This rule does not impose any new reporting, recordkeeping or other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules.

    The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-015), in correspondence.

    V. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Parts 2, 5, 7, 8, 10, 12, 15, 16, 19, and 52

    Government procurement.

    Dated: May 28, 2015. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 5, 7, 8, 10, 12, 15, 16, 19, and 52 as set forth below:

    1. The authority citation for 48 CFR parts 2, 5, 7, 8, 10, 12, 15, 16, 19, and 52 continues to read as follows: Authority:

    40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

    PART 2—DEFINITIONS OF WORDS AND TERMS 2. Amend section 2.101 in paragraph (b) by— a. Removing the definition “Bundled contract”; b. Revising the definition “Bundling”; c. Adding, in alphabetical order, the definitions “Consolidation, consolidation of contract requirements, consolidated contract, or consolidated requirement”; and “Small Business Teaming Arrangement”.

    The revised and added text reads as follows:

    2.101 Definitions.

    (b) * * *

    (2) * * *

    Bundling or bundled contract

    (1) Means the consolidating or combining of two or more requirements for supplies or services, previously provided or performed under separate smaller contracts, into a solicitation for a single contract, a multiple-award contract, a task order or delivery order that is likely to be unsuitable for award to a small business concern (but may be suitable for award to a small business with a Small Business Teaming Arrangement) due to—

    (i) The diversity, size, or specialized nature of the elements of the performance specified;

    (ii) The aggregate dollar value of the anticipated award;

    (iii) The geographical dispersion of the contract performance sites; or

    (iv) Any combination of the factors described in paragraphs (1)(i), (ii), and (iii) of this definition.

    (2) “Separate smaller contract” as used in this definition, means a contract that has been performed by one or more small business concerns or that was suitable for award to one or more small business concerns.

    (3) This definition does not apply to a contract that will be awarded and performed entirely outside of the United States.

    (4) (See 7.107-4 for a description of substantial bundling.)

    Consolidation, consolidation of contract requirements, consolidated contract, or consolidated requirement

    (1) Means a solicitation for a single contract, a multiple-award contract, a task order, or a delivery order to satisfy—

    (i) Two or more requirements of the Federal agency for supplies or services that have been provided to or performed for the Federal agency under two or more separate contracts, each of which was lower in cost than the total cost of the contract for which offers are solicited; or

    (ii) Requirements of the Federal agency for construction projects to be performed at two or more discrete sites.

    (2) Separate contract as used in this definition, means a contract that has been performed by any business, including small and other than small business concerns.

    Small Business Teaming Arrangement

    (1) Means an arrangement where—

    (i) Two or more small business concerns have formed a joint venture; or

    (ii) A potential small business prime contractor (“offeror”) agrees with one or more other small business concerns to have them act as its subcontractors under a specified Government contract. A Small Business Teaming Arrangement between the offeror and its small business subcontractor(s) exists through a written agreement between the parties that—

    (A) Is specifically referred to as a Small Business Teaming Arrangement or Small Business Teaming Agreement; and

    (B) Sets forth the different responsibilities, roles, and percentages (or other allocations) of work as it relates to the acquisition; and

    (2) May include two business concerns in a mentor-protege relationship so long as both the mentor and the protege are small or the protege is small and the concerns have received an exception to affiliation pursuant to 13 CFR 121.103(h)(3)(ii) or (iii).

    (3) See 13 CFR 121.103(b)(9) regarding the exception to affiliation for offers received from Small Business Teaming Arrangements.

    PART 5—PUBLICIZING CONTRACT ACTIONS 3. Amend section 5.205 by adding paragraph (g) to read as follows:
    5.205 Special situations.

    (g) Notification to public of rationale for bundled requirement. See 7.107-5(b)(2) with regard to notification to FedBizOpps.gov before issuance of the solicitation of any bundled requirement.

    PART 7—ACQUISITION PLANNING 4. Amend section 7.103 by revising paragraph (u)(2) to read as follows:
    7.103 Agency-head responsibilities.

    (u) * * *

    (2) Avoid unnecessary and unjustified consolidation or bundling of contract requirements that precludes small business participation as prime contractors (see 7.107) (15 U.S.C. 631(j) and 15 U.S.C. 657(q)).

    5. Amend section 7.104 by removing from paragraph (a) “contracting,” and adding “contracting, small business,” in its place; and revising paragraph (d) to read as follows:
    7.104 General procedures.

    (d) The planner shall coordinate the acquisition plan or strategy with the cognizant small business specialist when the strategy contemplates an acquisition meeting the dollar amounts for substantial bundling unless the contract or task order or delivery order is entirely reserved or set-aside for small business under part 19. The small business specialist shall notify the agency Office of Small and Disadvantaged Business Utilization or the Office of Small Business Programs if the strategy involves consolidation or bundling that is unnecessary, unjustified, or not identified as consolidated or bundled by the agency (see 7.107 for further guidance regarding consolidation and bundling).

    6. Amend section 7.105 by revising paragraph (b)(1) to read as follows:
    7.105 Contents of written acquisition plans.

    (b) Plan of action. (1) Sources. (i) Indicate the prospective sources of supplies or services that can meet the need.

    (ii) Consider required sources of supplies or services (see part 8) and sources identifiable through databases including the Governmentwide database of contracts and other procurement instruments intended for use by multiple agencies available at https://www.contractdirectory.gov/contractdirectory/.

    (iii) Include consideration of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns (see part 19).

    (iv) Consider the impact of any consolidation or bundling that might affect participation of small businesses in the acquisition (see 7.107) (15 U.S.C. 644(e) and 15 U.S.C. 657(q)). When the proposed acquisition strategy involves the consolidation or bundling of contract requirements, identify the incumbent contractors and contracts affected by the consolidation or bundling.

    (v) Address the extent and results of the market research and indicate their impact on the various elements of the plan (see part 10).

    7. Revise section 7.107 to read as follows:
    7.107 Additional requirements for acquisitions involving consolidation, bundling, or substantial bundling.
    7.107-1 General.

    (a) Consolidation and bundling of contract requirements may provide substantial benefits to the Government. However, because of the potential impact on small business participation, the agency shall conduct market research and any required analysis to determine whether consolidation is necessary and justified in accordance with 15 U.S.C. 657(q) or if bundling is necessary and justified pursuant to 15 U.S.C. 644(e)(2).

    (b) A consolidated or bundled requirement is necessary and justified if the benefits of the acquisition strategy substantially exceed the benefits of each of the possible alternative contracting approaches identified.

    (c) Such benefits may include—

    (1) Cost savings;

    (2) Price reduction;

    (3) Quality improvements that will save time or improve or enhance performance or efficiency;

    (4) Reduction in acquisition cycle times, or

    (5) Better terms and conditions.

    (d) Benefits are substantial if individually, in combination, or in the aggregate the anticipated financial benefits are equivalent to—

    (1) Ten percent of the estimated contract or order value (including options) if the value is $94 million or less; or

    (2) Five percent of the estimated contract or order value (including options) or $9.4 million, whichever is greater, if the value exceeds $94 million.

    (e) Reduction of administrative or personnel costs alone is not sufficient justification for consolidation or bundling unless the cost savings are expected to be at least 10 percent of the estimated contract or order value (including options) of the consolidated or bundled requirements. For consolidated requirements, the Senior Procurement Executive or Chief Acquisition Officer must make a determination of the cost savings (15 U.S.C. 657(q)(c)(2)).

    (f) If the requirement is considered both consolidated and bundled, the agency shall follow the guidance regarding bundling in 7.107-3 and 7.107-4).

    (g) The requirements of this section do not apply—

    (1) Except 7.107-4, if a cost comparison analysis will be performed in accordance with OMB Circular A-76; and

    (2) To orders against single-agency task-order contracts or delivery-order contracts, if the requirement was considered in determining that the consolidation or bundling of the underlying contract was necessary and justified.

    7.107-2 Consolidation of contract requirements.

    (a) Before conducting an acquisition that is a consolidation of contract requirements with an estimated total dollar value exceeding $2 million, the Senior Procurement Executive or Chief Acquisition Officer shall make a written determination that the consolidation of contract requirements is necessary and justified, after ensuring that—

    (1) Market research has been conducted;

    (2) Any alternative contracting approaches that would involve a lesser degree of consolidation of contract requirements have been identified;

    (3) The determination is coordinated with the agency's Office of Small Disadvantaged Business Utilization or the Office of Small Business Programs;

    (4) Any negative impact by the acquisition strategy on contracting with small business concerns has been identified; and

    (5) Steps are taken to include small business concerns in the acquisition strategy.

    (b) The Senior Procurement Executive or Chief Acquisition Officer may determine that the consolidation of contract requirements is necessary and justified if, as compared to the benefits that would be derived from the alternative contracting approaches identified under paragraph (a)(2) of this subsection, consolidation would derive substantial benefits (see 7.107-1(d)).

    (c) If a determination is made, the contracting officer shall include it in the acquisition strategy documentation and provide it to SBA upon request.

    7.107-3 Bundling.

    (a) Before conducting an acquisition strategy that involves the bundling of contract requirements, the agency shall make a written determination that the bundling is necessary and justified. A bundled requirement is considered necessary and justified if the agency would obtain measurably substantial benefits as compared to meeting its agency's requirements through separate smaller contracts or orders.

    (b) The agency shall quantify the specific benefits identified through the use of market research and other techniques to explain how their impact would be measurably substantial (see 10.001(a)(2)(iv) and (a)(3)(vi)).

    (c) Without power of delegation, the service acquisition executive for the military departments, the component acquisition executive for the Defense Logistics Agency, the Under Secretary of Defense for Acquisition, Technology and Logistics for the defense agencies, or the Deputy Secretary or equivalent for the civilian agencies may determine that bundling is necessary and justified when—

    (1) The expected benefits do not meet the thresholds for a substantial benefit but are critical to the agency's mission success; and

    (2) The acquisition strategy provides for maximum practicable participation by small business concerns.

    (d) In assessing whether cost savings and/or price reduction would be achieved through bundling, the agency and SBA shall—

    (1) Compare the price that has been charged by small businesses for the work that they have performed; or

    (2) Where previous prices are not available, compare the price, based on market research, that could have been or could be charged by small businesses for the work not previously performed by other than a small business.

    (e) If a determination is made, the contracting officer shall include it in the acquisition strategy documentation and provide it to SBA upon request.

    7.107-4 Substantial bundling.

    (a)(1) Substantial bundling is any bundling that results in a contract or order with an estimated value of—

    (i) $8 million or more for the Department of Defense;

    (ii) $6 million or more for the National Aeronautics and Space Administration, the General Services Administration, and the Department of Energy; or

    (iii) $2.5 million or more for all other agencies.

    (2) These thresholds apply to the cumulative estimated dollar value (including options) of—

    (i) Multiple-award contracts;

    (ii) Task orders or delivery orders issued against a GSA Schedule contract; or

    (iii) Task orders or delivery orders issued against a task-order or delivery-order contract awarded by another agency.

    (b) In addition to addressing the requirements for bundling (see 7.107-3), when the proposed acquisition strategy involves substantial bundling, the agency shall document in its strategy—

    (1) The specific benefits anticipated to be derived from substantial bundling;

    (2) An assessment of the specific impediments to participation by small business concerns as contractors that result from substantial bundling;

    (3) Actions designed to maximize small business participation as contractors, including provisions that encourage small business teaming;

    (4) Actions designed to maximize small business participation as subcontractors (including suppliers) at any tier under the contract, or order, that may be awarded to meet the requirements;

    (5) The determination that the anticipated benefits of the proposed bundled contract or order justify its use; and

    (6) Alternative strategies that would reduce or minimize the scope of the bundling, and the rationale for not choosing those alternatives.

    7.107-5 Notifications.

    (a) Notifications to current small business contractors of agency's intent to bundle.

    (1) The contracting officer shall notify each small business performing a contract that it intends to bundle the requirement with one or more other requirements at least 30 days prior to the issuance of the solicitation for the bundled requirement.

    (2) The notification shall provide the name, phone number and address of the applicable SBA procurement center representative (PCR), or if a PCR is not assigned to the procuring activity, the SBA Office of Government Contracting Area Office serving the area in which the buying activity is located (see subpart 19.4 regarding the duties and responsibilities of the SBA PCR).

    (3) This notification shall be documented in the contract file.

    (b) Notification to public of rationale for bundled requirement.

    (1) The agency shall publish on its Web site a list and rationale for any bundled requirement for which the agency solicited offers or issued an award. The notification shall be made within 30 days of the agency's data certification regarding the validity and verification of data entered in the Federal Procurement Data System to the Office of Federal Procurement Policy (see 4.604).

    (2) In addition, the agency is encouraged to provide to FedBizOpps.gov, before issuance of the solicitation, notification of the rationale for any bundled requirement (see 5.201).

    (c) Notification to SBA of follow-on bundled or consolidated requirements. For each follow-on bundled or consolidated contract (even if additional requirements have been added or some have been deleted), the contracting officer shall obtain from the requiring activity and notify the SBA PCR as soon as possible but no later than 30 days prior to issuance of the solicitation of—

    (1) The amount of savings and benefits achieved under the prior consolidation or bundling of contract requirements;

    (2) Whether such savings and benefits will continue to be realized if the contract remains consolidated or bundled; and

    (3) Whether such savings and benefits would be greater if the procurement requirements were divided into separate solicitations suitable for award to small business concerns.

    (d) Public notification of bundling policy. In accordance with 15 U.S.C. 644(q)(2)(A)(ii), agencies shall publish the Governmentwide policy regarding contract bundling, including regarding the solicitation of teaming and joint ventures, on their agency Web site.

    7.107-6 Solicitation provision.

    The contracting officer shall insert the provision at 52.207-XX, Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts), in solicitations for multiple-award contracts above the substantial bundling threshold of the agency.

    PART 8—REQUIRED SOURCES OF SUPPLIES AND SERVICES 8. Amend section 8.404 by revising paragraph (c)(2) to read as follows:
    8.404 Use of Federal Supply Schedules.

    (c) * * *

    (2) Shall comply with all FAR requirements for a consolidated or bundled contract when the task order or delivery order meets the definition at 2.101(b) of “consolidation” or “bundling”; and

    PART 10—MARKET RESEARCH 9. Amend section 10.001 by— a. Removing from the introductory text of paragraph (a) “Agencies must—” and adding “Agencies shall—” in its place; b. Revising paragraphs (a)(2)(iv) and (a)(2)(vi)(B); c. Removing from the end of paragraph (a)(3)(v) “efficiency; and” and adding “efficiency;” in its place; d. Redesignating paragraphs (a)(3)(vi) and (a)(3)(vii) as paragraphs (a)(3)(vii) and (a)(3)(viii), respectively; e. Adding a new paragraph (a)(3)(vi); f. Revising the newly designated paragraph (a)(3)(vii); and g. Revising paragraph (c) to read as follows.
    10.001 Policy.

    (a) * * *

    (2) * * *

    (iv) Before soliciting offers for acquisitions that could lead to a consolidated or bundled contract (15 U.S.C. 644(e)(2)(A) and 15 U.S.C. 657q);

    (B) Disaster relief to include debris removal, distribution of supplies, reconstruction, and other disaster or emergency relief activities (see 26.205); and

    (3) * * *

    (vi) Determine whether consolidation is necessary and justified (see 7.107-2) (15 U.S.C. 657q);

    (vii) Determine whether bundling is necessary and justified (see 7.107-3) (15 U.S.C. 644(e)(2)(A)); and

    (c) If an agency contemplates awarding a consolidated or bundled contract, the agency—

    (1) When performing market research, should consult with the agency small business specialist and the local Small Business Administration procurement center representative (PCR). If a PCR is not assigned, see 19.402(a); and

    (2) Shall notify any affected incumbent small business concerns of the Government's intention to bundle the requirement and how small business concerns may contact the appropriate Small Business Administration procurement center representative (see 7.107-5(a).

    PART 12—ACQUISITION OF COMMERCIAL ITEMS 10. Amend section 12.301 by redesignating paragraphs (d)(3) through (d)(6) as paragraphs (d)(4) through (d)(7), respectively; and adding a new paragraph (d)(3) to read as follows:
    12.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

    (d) * * *

    (3) Insert the provision at 52.207-XX, Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts), as prescribed at 7.107-6.

    PART 15—CONTRACTING BY NEGOTIATION 11. Amend section 15.304 by revising paragraphs (c)(3)(ii) and (c)(4) to read as follows:
    15.304 Evaluation factors and significant subfactors.

    (c) * * *

    (3) * * *

    (ii) For solicitations involving the consolidation of contract requirements or bundling that offer a significant opportunity for subcontracting, the contracting officer shall include a factor to evaluate past performance indicating the extent to which the offeror attained applicable goals for small business participation under contracts that required subcontracting plans (15 U.S.C. 637(d)(4)(G)(ii)).

    (4) For solicitations involving the consolidation of contract requirements or bundling that offer a significant opportunity for subcontracting, the contracting officer shall include proposed small business subcontracting participation in the subcontracting plan as an evaluation factor (15 U.S.C. 637(d)(4)(G)(i)).

    PART 16—TYPES OF CONTRACTS 12. Amend section 16.505 by revising paragraph (a)(8)(iii) to read as follows:
    16.505 Ordering.

    (a) * * *

    (8) * * *

    (iii) Shall comply with all FAR requirements for a consolidated or bundled contract when the task order or delivery order meets the definition at 2.101(b) of “consolidation” or “bundling”.

    13. Amend section 16.506 by adding paragraph (i) to read as follows:
    16.506 Solicitation provisions and contract clauses.

    (i) See 7.107-6 for use of 52.207-XX, Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangement or Joint Ventures (Multiple-Award Contracts) in solicitations for multiple-award contracts above the substantial bundling threshold of the agency.

    PART 19—SMALL BUSINESS PROGRAMS 14. Amend section 19.201 by revising paragraphs (c)(5)(i), (c)(11)(ii), and (c)(11)(iii) to read as follows:
    19.201 General policy.

    (c) * * *

    (5) * * *

    (i) Identify proposed solicitations that involve significant bundling and work with the agency acquisition officials and SBA to revise the procurement strategies for such proposed solicitations to increase the probability of participation by small businesses as prime contractors through Small Business Teaming Arrangements;

    (11) * * *

    (ii) Adequacy of consolidated or bundled contract documentation and justifications; and

    (iii) Actions taken to mitigate the effects of necessary and justified consolidation of contract requirements or contract bundling on small businesses.

    15. Amend section 19.202-1 by revising paragraphs (e)(1)(iii), (e)(2), (e)(2)(v), (e)(3), and (e)(4) to read as follows:
    19.202-1 Encouraging small business participation in acquisitions.

    (e)(1) * * *

    (iii) The proposed acquisition is for a consolidated or bundled requirement. (See 7.107-5(a) for mandatory 30-day notice requirement to incumbent small business concerns.) The contracting officer shall provide all information relative to the justification for the consolidation of contract requirements or contract bundling, including the acquisition plan or strategy, and if the acquisition involves substantial bundling, the information identified in 7.107-4. The contracting officer shall also provide the same information to the agency Office of Small and Disadvantaged Business Utilization.

    (2) Provide a statement explaining why the—

    (v) The consolidation of contract requirements or bundling is necessary and justified.

    (3) Process the 30-day notification concurrently with other processing steps required prior to the issuance of the solicitation.

    (4) If the contracting officer rejects the SBA procurement center representative's recommendation made in accordance with 19.402(c)(2), document the basis for the rejection and notify the SBA procurement center representative in accordance with 19.505.

    PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 16. Add section 52.207-XX to read as follows:
    52.207-XX Solicitation of Offers from Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts).

    As prescribed in 7.107-6, insert the following provision:

    Solicitation of Offers From Small Business Concerns and Small Business Teaming Arrangements or Joint Ventures (Multiple-Award Contracts) (Date)

    (a) Definition. Small Business Teaming Arrangement, as used in this provision—

    (1) Means an arrangement where—

    (i) Two or more small business concerns have formed a joint venture; or

    (ii) A potential small business prime contractor (“offeror”) agrees with one or more other small business concerns to have them act as its subcontractors under a specified Government contract. A Small Business Teaming Arrangement between the offeror and its small business subcontractor(s) exists through a written agreement between the parties that—

    (A) Is specifically referred to as a “Small Business Teaming Arrangement” or “Small Business Teaming Agreement”; and

    (B) Sets forth the different responsibilities, roles, and percentages (or other allocations) of work as it relates to the acquisition; and

    (2) May include two business concerns in a mentor-protege relationship so long as both the mentor and the protege are small or the protege is small and the concerns have received an exception to affiliation pursuant to 13 CFR 121.103(h)(3)(ii) or (iii).

    (3) See 13 CFR 121.103(b)(9) regarding the exception to affiliation for offers received from Small Business Teaming Arrangements.

    (b) The Government is soliciting and will consider offers from any responsible source, including responsible small business concerns and offers from Small Business Teaming Arrangements or joint ventures of small business concerns.

    (End of provision)
    [FR Doc. 2015-13421 Filed 6-2-15; 8:45 am] BILLING CODE 6820-EP-P
    80 106 Wednesday, June 3, 2015 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2015-0039] Notice of Request for Extension of Approval of an Information Collection; Special Need Requests Under the Plant Protection Act 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 intention of the Animal and Plant Health Inspection Service (APHIS) to request an extension of approval of an information collection associated with the regulations to allow States to impose prohibitions or restrictions on specific articles in addition to those required by APHIS to help protect against the introduction and establishment of plant pests.

    DATES:

    We will consider all comments that we receive on or before August 3, 2015.

    ADDRESSES:

    You may submit comments by either of the following methods:

    • Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0039.

    • Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0039, 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-2015-0039 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 special need requests under the Plant Protection Act, contact Mr. Jonathan Jones, National Policy Manager, PHP, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737; (301) 851-2128. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    SUPPLEMENTARY INFORMATION:

    Title: Special Need Requests Under the Plant Protection Act.

    OMB Control Number: 0579-0291.

    Type of Request: Extension of approval of an information collection.

    Abstract: The Plant Protection Act (PPA, 7 U.S.C 7701 et seq.) authorizes the Secretary of Agriculture to restrict the importation, entry, or interstate movement of plants, plant products, and other articles to prevent the introduction of plant pests into the United States or their dissemination within the United States. This authority has been delegated to the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture, which administers regulations to implement the PPA. Regulations governing the interstate movement of plants, plant products, and other articles are contained in 7 CFR part 301, “Domestic Quarantine Notices.”

    The regulations in “Subpart-Preemption and Special Need Requests” allow States or political subdivisions of States to request approval from APHIS to impose prohibitions or restrictions on the movement in interstate commerce of specific articles that pose a plant health risk that are in addition to the prohibitions and restrictions imposed by APHIS. This process requires information collection activities, including a pest data detection survey with a pest risk analysis showing that a pest is not present in a State, or, if already present, the current distribution in the State, and that the pest would harm or injure the environment and/or agricultural resources of the State or political subdivision.

    We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities 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 160 hours per response.

    Respondents: State governments.

    Estimated annual number of respondents: 1.

    Estimated annual number of responses per respondent: 1.

    Estimated annual number of responses: 1.

    Estimated total annual burden on respondents: 160 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 27th day of May 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2015-13371 Filed 6-2-15; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2015-0038] Notice of Request for an Extension of Approval of an Information Collection; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery 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 qualitative customer and stakeholder feedback on service delivery by the Animal and Plant Health Inspection Service.

    DATES:

    We will consider all comments that we receive on or before August 3, 2015.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0038.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0038, 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-2015-0038 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) 7997039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    For copies of more detailed information on this information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, IMC, ITD, MRPBS, APHIS, 4700 River Road Unit 123, Riverdale, MD 20737; (301) 851-2727.

    SUPPLEMENTARY INFORMATION:

    Title: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery.

    OMB Control Number: 0579-0377.

    Type of Request: Extension of approval of an information collection.

    Abstract: This information collection activity provides a means for the Animal and Plant Health Inspection Service (APHIS) to garner qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Agency's commitment to improving service delivery.

    By qualitative feedback, we mean information that provides useful insights on perceptions and opinions, but not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences, and expectations; provide an early warning of issues with service; or focus attention on areas where communication, training, or changes in operations might improve delivery of products or services. This collection will allow for ongoing generic, collaborative, and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.

    The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on Agency's services will be unavailable.

    APHIS will only submit a collection for approval under this generic clearance if it meets the following conditions:

    • The collection is voluntary;

    • The collection is low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and is low-cost for both the respondents and the Federal Government;

    • The collection is non-controversial and does not raise issues of concern to other Federal agencies;

    • The collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;

    • Personally identifiable information is collected only to the extent necessary and is not retained;

    • Information gathered is intended to be used only internally for general service improvement and program management purposes and is not intended for release outside of APHIS (if released, APHIS must indicate the qualitative nature of the information);

    • Information gathered will not be used for the purpose of substantially informing influential policy decisions;

    • Information gathered will yield qualitative information; and

    • The collection will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.

    Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential nonresponse bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding this study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.

    As a general matter, this information collection will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.

    We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for 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 0.25 hours per response.

    Respondents: Individuals and households; businesses and organizations; State, local, or Tribal governments; and foreign federal governments.

    Estimated annual number of respondents: 70,000.

    Estimated annual number of responses per respondent: 1.

    Estimated annual number of responses: 70,000.

    Estimated total annual burden on respondents: 17,500 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 27th day of May 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2015-13369 Filed 6-2-15; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2015-0035] Notice of Request for Extension of Approval of an Information Collection; Health Certificates for the Export of Live Crustaceans, Finfish, Mollusks, and Related Products 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 health certificates for the export of live crustaceans, finfish, mollusks, and related products.

    DATES:

    We will consider all comments that we receive on or before August 3, 2015.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0035.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0035 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-2015-0035 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 health certificates for the export of live crustaceans, finfish, mollusks, and related products, contact Dr. Christa Speekmann, Import-Export Specialist-Aquaculture, NIES, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD 20737; (301) 851-3365. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    SUPPLEMENTARY INFORMATION:

    Title: Health Certificates for the Export of Live Crustaceans, Finfish, Mollusks, and Related Products.

    OMB Control Number: 0579-0278.

    Type of Request: Extension of approval of an information collection.

    Abstract: The export of agricultural commodities, including animals and animal products, is a major business in the United States and contributes to a favorable balance of trade. To facilitate the export of U.S. animals and animal products, the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) maintains information regarding the import health requirements of other countries for animals and animal products exported from the United States.

    Many countries that import animals from the United States require a certification that the United States is free of certain diseases. These countries may also require the certification statement to contain additional declarations regarding the U.S. animals or products being exported. U.S. trading partners are increasing import requirements, which must be addressed using one of the three APHIS export health certificates or country specific export health certificates. The three APHIS export health certificates are USDA, APHIS, Veterinary Services (VS) Form 17-141 (Health Certificate for the Export of Live Finfish, Mollusks, and Crustaceans (and their Gametes); USDA, APHIS, VS Form 17-140 (United States Origin Health Certificate); and USDA, APHIS Form 7001 (United States Interstate and International Certificate of Health Examination for Small Animals).

    The certificates are completed by an accredited veterinarian and must be signed by the accredited veterinarian who inspects the animals prior to their departure from the United States, and endorsed by APHIS.

    We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities 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 0.254 hours per response.

    Respondents: Accredited veterinarians and producers who will assist in supplying the necessary information to complete the certificates.

    Estimated annual number of respondents: 256.

    Estimated annual number of responses per respondent: 16.062.

    Estimated annual number of responses: 4,112.

    Estimated total annual burden on respondents: 1,050 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 27th day of May 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2015-13370 Filed 6-2-15; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Forest Service National Urban and Community Forestry Advisory Council Meeting AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The National Urban and Community Forestry Advisory Council (Council) will meet in Coral Gables, Florida. The Council is established consistent with the Federal Advisory Committee Act of 1972 and the 1990 Farm Bill, Cooperative Forestry Assistance Act, Section 9 of the Cooperative Forestry Assistance Act, as amended by Title XII, Section 1219. Additional information concerning the Council, including meeting summary/minutes, can be found by visiting the Council's Web site at: www.fs.fed.us/ucf/nucfac.

    DATES:

    The meeting will be held on:

    • Wednesday, June 16, 2015 from 8:30 a.m.-4:00 p.m.

    • Thursday, June 17, 2015 from 8:30 a.m.-4:00 p.m.

    • Friday, June 18, 2015 from 8:30 a.m.-12:00 p.m., or until Council business is completed.

    All meetings are subject to cancellation. For updated status of the meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the John Martin's Restaurant (2nd Level), 253 Miracle Mile, Coral Gables, Florida 33134. Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses, when provided, are placed in the record and available for public inspection and copying.

    FOR FURTHER INFORMATION CONTACT:

    Nancy Stremple, Executive Staff to the National Urban and Community Forestry Advisory Council, 201 14th Street SW., Yates Building (3 South Central), Washington, DC 20024, or by cell phone 202-309-9873. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to provide:

    (1) Review the status of the next National Ten Year Urban Forest Action Plan;

    (2) Meet with State and local urban forestry partners;

    (3) Tour local urban and forestry restoration, volunteer and conservation efforts;

    (4) Finalize the Work Plan action items;

    (5) Discuss National Grants;

    (6) Hear updates from past grant recipients;

    (7) Receive Forest Service updates on program activities and budget; and

    (8) Hear feedback from the submitted accomplishment/recommendations report.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing by June 2, 2015 to be scheduled on the agenda. Council discussion is limited to Forest Service staff and Council members; however, persons who wish to bring urban and community forestry matters to the attention of the Council may file written statements with the Council's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Nancy Stremple, Executive Staff to the National Urban and Community Forestry Advisory Council, 201 14th Street SW., Yates Building (3 South Central), Washington, DC 20024, or by email at [email protected]

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: May 28, 2015. Patti Hirami, Associate Deputy Chief, State and Private Forestry.
    [FR Doc. 2015-13448 Filed 6-2-15; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Central Idaho Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Central Idaho Resource Advisory Committee (RAC) will meet in Salmon, Idaho. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site: http://www.fs.usda.gov/main/scnf/workingtogether/advisorycommittees.

    DATES:

    The meeting will be held at 9:30 a.m. on June 29-July 1, 2015.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at the Public Lands Center, 1206 S. Challis Street, Salmon, Idaho.

    Written comments may be submitted as described under SUPPLEMENTARY INFORMATION. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Public Lands Center. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Amy Baumer, RAC Coordinator, by phone at 208-756-5145 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is:

    1. To review and vote on project proposals for 2015.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by June 26, 2015, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Amy Baumer, Public Affairs Officer; 1206 S. Challis Street; Salmon, Idaho 83467; by email to [email protected], or via facsimile to 208-756-5151.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled FOR FURTHER INFORMATION CONTACT. All reasonable accommodation requests are managed on a case by case basis.

    Dated: May 27, 2015. Amy E. Baumer, Acting Forest Supervisor.
    [FR Doc. 2015-13498 Filed 6-2-15; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE Bureau of the Census Request for Nominations of Members To Serve on the National Advisory Committee on Racial, Ethnic, and Other Populations AGENCY:

    Bureau of the Census, Commerce.

    ACTION:

    Notice of request for nominations.

    SUMMARY:

    The Bureau of the Census (Census Bureau) is requesting nominations of individuals and organizations to the National Advisory Committee on Racial, Ethnic, and Other Populations. The Census Bureau will consider nominations received in response to this notice, as well as from other sources. The “SUPPLEMENTARY INFORMATION” section of this notice provides committee and membership criteria.

    DATES:

    Please submit nominations by July 6, 2015.

    ADDRESSES:

    Please submit nominations by Email to the [email protected] (subject line “2015 NAC Nominations”), or by letter submission to the Committee Liaison Officer, 2015 NAC Nominations, Department of Commerce, U.S. Census Bureau, Room 8H185, 4600 Silver Hill Road, Washington, DC 20233.

    FOR FURTHER INFORMATION CONTACT:

    Kimberly L. Collier, Assistant Division Chief, Customer Liaison Marketing Services Offices, U.S. Census Bureau, Room 8H185, 4600 Silver Hill Road, Washington, DC 20233, telephone (301) 763-6590, or by Email to [email protected] For TTY callers, please use the Federal Relay Service 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    The National Advisory Committee on Racial, Ethnic, and Other Populations (“The Committee”) was established in accordance with the Federal Advisory Committee Act (FACA), Title 5, United States Code, Appendix 2. The following provides information about the Committee, membership, and the nomination process.

    Objectives and Duties

    1. The Committee provides insight, perspectives, expertise and advice to the Director of the Census Bureau on the full spectrum of Census surveys and programs. The Committee assists the Census Bureau in developing appropriate research/methodological, operational, and communication strategies to reduce program/survey costs, improve coverage and operational efficiency, improve the quality of data collected, protect the public's and business units' privacy and enhance public participation and awareness of Census programs and surveys, and make data products more useful and accessible.

    2. The Committee advises on topics such as: Hidden households, language barriers, students and youth, aging populations, American Indian and Alaska Native tribal considerations, new immigrant populations, populations affected by natural disasters, highly mobile and migrant populations, complex households, poverty populations, race/ethnic minorities, rural populations and population segments with limited access to technology. The Committee also advises on data privacy and confidentiality concerns, administrative records, marketing, social media, the dynamic nature of new businesses, minority ownership of businesses, as well as other concerns impacting Census survey design and implementation.

    3. The Committee discusses census policies, research and methodology, tests, operations, communications/messaging and other activities and advises regarding best practices to improve censuses, surveys, operations and programs. The Committee's expertise and experiences help identify cost efficient ways to increase participation among hard to count segments of the population as well as ensuring that the Census Bureau's statistical programs are inclusive and continue to provide the Nation with accurate, relevant, and timely statistics.

    4. The Committee uses formal advisory committee meetings, webinars, web conferences, working groups, and other methods to accomplish its goals, consistent with the requirements of the FACA. The Committee is encouraged to use Census Regional Office knowledge to help identify regional, local, tribal and grass roots issues, and capture regional and local perspectives about Census Bureau surveys and programs. The Committee should use technology and video/web conferencing to reduce meeting and travel costs, and to more fully engage local and regional working groups and hard to count populations.

    5. The Committee functions solely as an advisory body under the FACA.

    Membership

    1. The Committee will consist of up to 32 members who serve at the discretion of the Director.

    2. The Committee aims to have a balanced representation among its members, considering such factors as geography, age, gender, race, ethnicity, technical expertise, community involvement, knowledge of hard to count populations, and familiarity with Census Bureau programs and/or activities.

    3. The Committee aims to include members from diverse backgrounds, including state, local and tribal governments, academia, research, national and community-based organizations, and the private sector.

    4. Membership shall include individuals, Special Government Employees (SGE), who are selected for their personal expertise with the topics highlighted above and/or representatives of organizations reflecting diverse populations, national, state, local and tribal interests, organizations serving hard to count populations, and community-based organizations. SGEs will be subject to the ethical standards applicable to SGEs. Members will be individually advised of the capacity in which they will serve through their appointment letters.

    5. Membership is open to persons who are not seated on other Census Bureau stakeholder entities (e.g., State Data Centers, Census Information Centers, Federal State Cooperative on Populations Estimates program, other Census Advisory Committees, etc.). No employee of the federal government can serve as a member of the Committee.

    6. Generally, members will serve for a three-year term. All members will be reevaluated at the conclusion of each term with the prospect of renewal, pending advisory committee needs. Active attendance and participation in meetings and activities (e.g., conference calls and assignments) will be considered when determining term renewal or membership continuance. Generally, members may be appointed for a second three-year term at the discretion of the Director.

    7. Members are selected in accordance with applicable Department of Commerce guidelines.

    Miscellaneous

    1. Members of the Committee serve without compensation, but receive reimbursement for committee-related travel and lodging expenses.

    2. The Committee meets at least twice a year, budget permitting, but additional meetings may be held as deemed necessary by the Census Director or Designated Federal Officer. All Advisory Committee meetings are open to the public in accordance with the FACA.

    Nomination Process

    1. Nominations should satisfy the requirements described in the Membership section above.

    2. Individuals, groups, and/or organizations may submit nominations on behalf of candidates. A summary of the candidate's qualifications (resume´ or curriculum vitae) must be included along with the nomination letter. Nominees must be able to actively participate in the tasks of the Committee, including, but not limited to regular meeting attendance, committee meeting discussant responsibilities, review of materials, as well as participation in conference calls, webinars, working groups, and/or special committee activities.

    3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a diverse Advisory Committee membership.

    Dated: May 27, 2015. John H. Thompson, Director, Bureau of the Census.
    [FR Doc. 2015-13431 Filed 6-2-15; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE International Trade Administration [Application No. 99-9A005] Export Trade Certificate of Review ACTION:

    Notice of Application to Amend the Export Trade Certificate of Review Issued to California Almond Export Association, LLC (“CAEA”), Application No. (99-9A005).

    SUMMARY:

    The Office of Trade and Economic Analysis (“OTEA”) of the International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed amendment and requests comments relevant to whether the amended Certificate should be issued.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) (“the Act”) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325 (2015). Section 302(b)(1) of the Export Trade Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the Federal Register identifying the applicant and summarizing its application. Under 15 CFR 325.6(a), interested parties may, within twenty days after the date of this notice, submit written comments to the Secretary on the application.

    Request for Public Comments

    Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be nonconfidential.

    An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 21028, Washington, DC 20230.

    Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the amended Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 99-9A005.”

    Summary of the Application

    Applicant: California Almond Export Association, LLC (“CAEA”), 4800 Sisk Road Modesto, CA 95356.

    Contact: Bill Morecraft, Chairman, Telephone: (916) 446-8537.

    Application No.: 99-9A005.

    Date Deemed Submitted: May 18, 2015.

    Proposed Amendment: CAEA seeks to amend its Certificate to add the following company as a Member of CAEA's Certificate: RPAC Almonds, LLC, Los Banos, CA.

    CAEA's proposed amendment of its Export Trade Caertificate of Review would result in the following companies as Members under the Certificate: Almonds California Pride, Inc., Caruthers, CA, Baldwin-Minkler Farms, Orland, CA, Blue Diamond Growers, Sacramento, CA, Campos Brothers, Caruthers, CA, Chico Nut Company, Chico, CA, Del Rio Nut Company, Inc., Livingston, CA, Fair Trade Corner, Inc., Chico, CA, Fisher Nut Company, Modesto, CA, Hilltop Ranch, Inc., Ballico, CA, Hughson Nut, Inc., Hughson, CA, Mariani Nut Company, Winters, CA, Nutco, LLC d.b.a. Spycher Brothers, Turlock, CA, Paramount Farms, Inc., Los Angeles, CA, P-R Farms, Inc., Clovis, CA, Roche Brothers International Family Nut Co., Escalon, CA, RPAC Almonds, LLC, Los Banos, CA, South Valley Almond Company, LLC, Wasco, CA, Sunny Gem, LLC, Wasco, CA, Western Nut Company, Chico, CA.

    Dated: May 28, 2015. Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration.
    [FR Doc. 2015-13444 Filed 6-2-15; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration Civil Nuclear Energy Export Opportunity Seminar AGENCY:

    ITA, DOC.

    ACTION:

    Notice of Civil Nuclear Energy Export Opportunity Seminar.

    SUMMARY:

    This notice sets forth the proposed agenda for a Civil Nuclear Energy Export Opportunity Seminar.

    DATES:

    The meeting is scheduled for Thursday, June 18, 2015, at 1:00 p.m. Eastern Daylight Time (EDT).

    ADDRESSES:

    The meeting will be held at Westinghouse Electric Company (1000 Westinghouse Drive, Cranberry Township, PA, 16066).

    FOR FURTHER INFORMATION CONTACT:

    Mr. Jonathan Chesebro, Office of Energy & Environmental Industries, ITA, Room 4053, 1401 Constitution Ave. NW., Washington, DC 20230. (Phone: 202-482-1297; Fax: 202-482-5665; email: [email protected]).

    SUPPLEMENTARY INFORMATION:

    Background: Hosted by the U.S. Department of Energy, National Nuclear Security Administration (NNSA), the purpose of this event is to provide a forum for U.S. Government (USG) officials to brief companies on recent developments in U.S. civil nuclear export controls, 123 Agreements for Peaceful Nuclear Cooperation, and export market opportunities. There will also be a Question and Answer session after each topic. This is an opportunity to hear from USG experts on these topics to get information on U.S. civil nuclear export opportunities. Additional Export Opportunity Seminars will be scheduled in Charlotte, NC and Washington, DC in July.

    Topics to be considered: The agenda for the Thursday, June 18, 2015 Civil Nuclear Energy Export Opportunity Seminar is as follows:

    1:00 p.m.-5:00 p.m. 1:00-1:15—Introduction—USG Support for the U.S. Civil Nuclear Industry 1:15-1:45—123 Agreements for Peaceful Nuclear Cooperation Jim Warden—Office of Nuclear Energy, Safety & Security—U.S. Department of State 1:45-2:30—Part 810 Export Control Rule Rich Goorevich/Katie Strangis/Jason Greenfeld—U.S. Department of Energy, National Nuclear Security Administration (NNSA) 2:30-3:00—Part 110 Export Control Rule Brooke Smith—Chief, Export Controls & Nonproliferation Branch, Nuclear Regulatory Commission (NRC) 3:00-3:30—Export Administration Regulations Steven Clagett—Director, Nuclear and Missile Technology Division, Bureau of Industry and Security (BIS), U.S. Department of Commerce 3:30-4:00—Demonstration of Part 810 e-licensing system (e810) 4:00-5:00—Question & Answer Session

    The meeting will be disabled-accessible. Seating is limited and available on a first-come, first-served basis.

    How To RSVP

    Email your name, title, and organization to [email protected] by 5:00 p.m. EDT on Tuesday June 16. The event is free but space is limited.

    Edward A. O'Malley, Director, Office of Energy and Environmental Industries.
    [FR Doc. 2015-13416 Filed 6-2-15; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Meeting of the Advisory Committee on Commercial Remote Sensing AGENCY:

    National Oceanic and Atmospheric Administration, Department of Commerce.

    ACTION:

    Notice of Public Meeting.

    SUMMARY:

    The Advisory Committee on Commercial Remote Sensing (ACCRES) will meet June 30, 2015.

    DATES:

    The meeting is scheduled as follows: June 30, 2015, 9:00 a.m.-12:00 p.m. The meeting will be open to the public.

    ADDRESSES:

    The meeting will be held at the Department of Commerce Room 1412, 1401 Constitution Avenue, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    As required by section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1982), notice is hereby given of the meeting of ACCRES. ACCRES was established by the Secretary of Commerce (Secretary) on May 21, 2002, to advise the Secretary through the Under Secretary of Commerce for Oceans and Atmosphere on long- and short-range strategies for the licensing of commercial remote sensing satellite systems.

    Matters To Be Considered

    The meeting will be open to the public pursuant to Section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended by Section 5(c) of the Government in Sunshine Act, Public Law 94-409 and in accordance with Section 552b(c)(1) of Title 5, United States Code.

    The Committee will receive a presentation on commercial remote sensing issues and updates of NOAA's licensing activities. The committee will also receive comments on its activities.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for special accommodations may be directed to ACCRES, NOAA/NESDIS/CRSRA, 1335 East West Highway, Room 8260, Silver Spring, Maryland 20910.

    Additional Information and Public Comments

    Any member of the public wishing further information concerning the meeting or who wishes to submit oral or written comments should contact Tahara Dawkins, Designated Federal Officer for ACCRES, NOAA/NESDIS/CRSRA, 1335 East West Highway, Room 8260, Silver Spring, Maryland 20910. Copies of the draft meeting agenda can be obtained from Richard James at (301) 713-0572, fax (301) 713-1249, or email [email protected]

    The ACCRES expects that public statements presented at its meetings will not be repetitive of previously-submitted oral or written statements. In general, each individual or group making an oral presentation may be limited to a total time of five minutes. Written comments (please provide at least 15 copies) received in the NOAA/NESDIS/CRSRA on or before June 15, 2015; will be provided to Committee members in advance of the meeting. Comments received too close to the meeting date will normally be provided to Committee members at the meeting.

    FOR FURTHER INFORMATION CONTACT:

    Tahara Dawkins, NOAA/NESDIS/CRSRA, 1335 East West Highway, Room 8260, Silver Spring, Maryland 20910; telephone (301) 713-3385, fax (301) 713-1249, email [email protected], or Richard James at telephone (301) 713-0572, email [email protected].

    Tahara Dawkins, Director, Commercial Remote Sensing and Regulatory Affairs.
    [FR Doc. 2015-13439 Filed 6-2-15; 8:45 am] BILLING CODE 3510-HR-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD955 Caribbean Fishery Management Council (CFMC); Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The Caribbean Fishery Management Council's (Council) Panel of Experts will hold a meeting.

    DATES:

    The meeting will be held on June 16-18, 2015, from 9 a.m. to 5 p.m.

    ADDRESSES:

    The meeting will be held at the CFMC Headquarters, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918.

    FOR FURTHER INFORMATION CONTACT:

    Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918, telephone: (787) 766-5926.

    SUPPLEMENTARY INFORMATION:

    The Panel of Experts will meet to discuss the items contained in the following agenda:

    Tuesday, June 16, 2015 9 a.m.-9:20 a.m.: Call to Order 9:20 a.m.-9:30 a.m.: Adoption of Agenda 9:30 a.m.-10 a.m.: Charge from Council: Developing a Draft List of Species to Manage Using Criteria Defined in Action 1 alternatives 10 a.m.-10:30 a.m.: Review of National Standards Guidelines on General Factors to Consider when Determining if a Fishery Needs Management 10:30 a.m.-noon: Species Selection for the Island Base FMPs Management Units (Puerto Rico) Noon-1:30 p.m.: Lunch 1:30 p.m.-5 p.m.: Species Selection for the Island Base FMPs Management Units (Puerto Rico) Wednesday, June 17, 2015 9 a.m.-noon: Species Selection for the Island Base FMPs Management Units (Puerto Rico) Noon-1:30 p.m.: Lunch 1:30 p.m.-5 p.m.: Species Selection for the Island Base FMPs Management Units (Puerto Rico) Thursday, June 18, 2015 9 a.m.-noon: Species Selection for the Island Base FMPs Management Units (St. Thomas/St. John) Noon-1:30 p.m.: Lunch 1:30 p.m.-5 p.m.: Species Selection for the Island Base FMPs Management Units (St. Croix) —Other Business —Adjourn

    The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. To further accommodate discussion and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice.

    The meeting is open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be subjects for formal action during the meeting. Actions will be restricted to those issues specifically identified in this notice, and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918, telephone (787) 766-5926, at least 5 days prior to the meeting date.

    Dated: May 29, 2015. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-13469 Filed 6-2-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD979 Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits AGENCY:

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

    ACTION:

    Notice; request for comments.

    SUMMARY:

    The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrants further consideration. This Exempted Fishing Permit would allow four commercial fishing vessels to fish outside of the limited access sea scallop regulations in support of bycatch reduction research.

    Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.

    DATES:

    Comments must be received on or before June 18, 2015.

    ADDRESSES:

    You may submit written comments by any of the following methods:

    Email: [email protected] Include in the subject line “DA15-036 CFF Dredge Speed on Bycatch Reduction Study EFP.”

    Mail: John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope ” DA15-036 CFF Dredge Speed on Bycatch Reduction Study EFP.”

    FOR FURTHER INFORMATION CONTACT:

    Shannah Jaburek, Fisheries Management Specialist, 978-282-8456.

    SUPPLEMENTARY INFORMATION:

    NOAA awarded the Coonamesset Farm Foundation (CFF) a grant through the 2015 Atlantic sea scallop research set-aside program, in support of a project titled, “Determination of the Impacts of Dredge Speed on Bycatch Reduction and Scallop Selectivity.”

    CFF submitted a complete application for an EFP on March 30, 2015. The project would look at how high towing speeds using the Turtle Deflector Dredge (TDD) impact scallop catch per unit of effort, scallop size selectivity, and fish bycatch. The study was funded in response to feedback from the fishing industry that the TDD must be towed at relatively high speeds to perform effectively.

    CFF is requesting exemptions that would allow four commercial fishing vessels be exempt from the Atlantic sea scallop days-at-sea (DAS) allocations at 50 CFR 648.53(b); crew size restriction at § 648.51(c); Closed Area I Closed Area at § 648.58(a), Closed Area II Closed Area at § 648.58(b); and Nantucket Lightship Closed Area at § 648.58(c). It would also exempt the from possession limits and minimum size requirements specified in 50 CFR part 648, subparts B and D through O, for sampling purposes only. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.

    Four vessels would conduct scallop dredging in June-September 2015, on a total of four 7-day trips, for a total of 28 DAS. Each trip would complete approximately 15 tows per day for an overall total of 420 tows for the project. All trips would take place in the open areas of Southern New England and Georges Bank as well as in Georges Bank scallop closed areas. Trips would be centralized around areas with high yellowtail and winter flounder bycatch and in areas that contain a wide range of scallop sizes to examine changes in size selectivity due to tow speed.

    All tows would be conducted with two tandem 15-foot (4.57-meter) TDD dredges for a duration of 60 minutes with a tow speed range of 4-5.5 knots. One dredge would be rigged with a 7-row apron and twine top hanging ratio of 2:1, while the other dredge would be rigged with a 5-row ring apron and 1.5:1 twine top hanging ratio. Both dredge aprons would use 4-inch (10.16-cm) rings. Each tow pair would be conducted in a straight line varying between higher and lower speeds with dredge positions in an AB-BA alternating pattern with a wire scope of three to one plus ten fathoms.

    For all tows the sea scallop catch would be counted into baskets and weighed. One basket from each dredge would be randomly selected and the scallops would be measured in 5-mm increments to determine size selectivity. Finfish catch would be sorted by species and then counted, weighed and measured in 1-mm increments. Depending on the volume of scallops and finfish captured, the catch would be subsampled as necessary. No catch would be retained for longer than needed to conduct sampling and no catch would be landed for sale.

    Project Catch Estimates Species SNE lbs mt GB lbs mt Scallops 52,300 23.72 22,700 10.30 Yellowtail 1,100 0.50 2,200 1.00 Winter Flounder 400 0.18 1,300 0.59 Windowpane Flounder 2,800 1.27 3,000 1.36 Monkfish 3,100 1.41 9,400 4.26 Other Fish 1,800 0.82 2,200 1.00 Barndoor Skate 300 0.14 4,300 1.95 NE Skate Complex 84,000 38.10 60,900 27.62

    CFF has requested these exemptions to allow them to conduct experimental dredge towing without being charged DAS, as well as deploy gear in access areas that are currently closed to scallop fishing. Participating vessels would need crew size waivers to accommodate science personnel and possession waivers would enable them to conduct finfish sampling activities.

    If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: May 29, 2015. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-13468 Filed 6-2-15; 8:45 am] BILLING CODE 3510-22-P
    CONSUMER PRODUCT SAFETY COMMISSION [CPSC Docket No. 15-C0004] Office Depot, Inc., Provisional Acceptance of a Settlement Agreement and Order AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Notice.

    SUMMARY:

    It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the Federal Register in accordance with the terms of 16 CFR 1118.20(e). Published below is a provisionally-accepted Settlement Agreement with Office Depot, Inc., containing a civil penalty of $3,400,000, within twenty (20) days of service of the Commission's final Order accepting the Settlement Agreement.1

    1 Chairman Elliot F. Kaye and Commissioners Robert S. Adler and Marietta S. Robinson voted to provisionally accept the Settlement Agreement and Order. Commissioners Joseph P. Mohorovic and Ann Marie Buerkle voted to reject the Settlement Agreement and Order. Commissioner Mohorovic submitted a statement regarding the matter. The statement will be available from the Office of the Secretariat and the CPSC Web site, www.cpsc.gov.

    DATES:

    Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by June 18, 2015.

    ADDRESSES:

    Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 15-C0004 Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.

    FOR FURTHER INFORMATION CONTACT:

    Sean R. Ward, Trial Attorney, Office of the General Counsel, Division of Compliance, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7602.

    SUPPLEMENTARY INFORMATION:

    The text of the Agreement and Order appears below.

    Dated: May 28, 2015. Todd A. Stevenson, Secretary. UNITED STATES OF AMERICA CONSUMER PRODUCT SAFETY COMMISSION In the Matter of: Office Depot, Inc. CPSC Docket No.: 15-C0004 SETTLEMENT AGREEMENT

    1. In accordance with the Consumer Product Safety Act, 15 U.S.C. 2051-2089 (“CPSA”) and 16 CFR 1118.20, Office Depot, Inc. (“Office Depot” or “Firm”), and the United States Consumer Product Safety Commission (“Commission”), through its staff, hereby enter into this Settlement Agreement (“Agreement”). The Agreement, and the incorporated attached Order, resolve staff's charges set forth below.

    THE PARTIES

    2. The Commission is an independent federal regulatory agency, established pursuant to, and responsible for the enforcement of, the CPSA, 15 U.S.C. 2051-2089. By executing the Agreement, staff is acting on behalf of the Commission, pursuant to 16 CFR 1118.20(b). The Commission issues the Order under the provisions of the CPSA.

    3. Office Depot is a corporation, organized and existing under the laws of the state of Delaware, with its principal place of business in Boca Raton, Florida.

    STAFF CHARGES Quantum Chair

    4. Between May 2006 and August 2009, Office Depot sold in the United States approximately 150,000 Quantum Realspace PROTM 9000 Series Mid-Back Multifunction Mesh Chairs and Quantum Realspace PROTM 9000 Series Mid-Back Multifunction Mesh Chairs with Headrest (“Quantum Chair”).

    5. The Quantum Chair is a “consumer product” “distributed in commerce,” as those terms are defined or used in sections 3(a)(5), (8) of the CPSA, 15 U.S.C. 2052(a)(5), (8). Office Depot was a “retailer” of the Quantum Chair, as such term is defined in section 3(a)(13) of the CPSA, 15 U.S.C. 2052(a)(13).

    6. The Quantum Chair is defective and creates an unreasonable risk of serious injury because the bolts attaching the seatback on the Quantum Chair can loosen and detach, posing a fall and injury hazard to consumers.

    7. Office Depot first received notice of a Quantum Chair failure in 2007 when a consumer reported to Office Depot that the seatback loosened or detached on the Quantum Chair, causing the consumer to sustain injuries.

    8. In 2008, Office Depot became aware that, in an effort to eliminate seatback detachment, the manufacturer of the Quantum Chair made two design changes to the Quantum Chair and a change to the accompanying instructions.

    9. In 2008 and 2009, Office Depot received 13 additional reports of injury, some requiring medical attention, and 33 total reports of the seatback detaching.

    10. Despite having information regarding the defect in and risk of injury relating to the Quantum Chair, Office Depot did not notify the Commission immediately of such defect or risk, as required by section 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4). Office Depot never notified the Commission about the Quantum Chair as required by the CPSA.

    Gibson Chair

    11. Between 2003 and 2012, Office Depot imported into the United States and sold approximately 1.4 million Gibson Leather Task Chairs (“Gibson Chair”).

    12. The Gibson Chair is a “consumer product” “distributed in commerce,” as those terms are defined or used in sections 3(a)(5), (8) of the CPSA, 15 U.S.C. 2052(a)(5), (8). Office Depot was a “manufacturer” of the Gibson Chair, as such term is defined in section 3(a)(11) of the CPSA, 15 U.S.C. 2052(a)(11). Office Depot also was a “retailer” of the Gibson Chair, as such term is defined in section 3(a)(13) of the CPSA, 15 U.S.C. 2052(a)(13).

    13. The Gibson Chair is defective and creates an unreasonable risk of serious injury because the mounting weld can break and separate the seat from the base of the Gibson Chair, posing a fall hazard to consumers.

    14. Office Depot first received notice of a Gibson Chair failure in 2005, when one consumer reported to Office Depot that the seat broke and separated from the base of the Gibson Chair, causing the consumer to sustain injuries.

    15. Office Depot continued to receive reports of injuries and incidents involving breakage of the Gibson Chair mounting plate weld and the resulting separation of the seat from the base of the Gibson Chair, with some injuries requiring medical attention. Office Depot settled the claims of several consumers who reported injuries resulting from the Gibson Chair's failure.

    16. In all, Office Depot received 25 reports of injuries and 153 incident reports from consumers of the seat breaking and separating from the base of the Gibson Chair.

    17. Despite having information regarding the defect in and risk of injury relating to the Gibson Chair, Office Depot did not notify the Commission immediately of such defect or risk, as required by section 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4). Office Depot failed to notify the Commission about the Gibson Chair until December 14, 2012, after receiving staff's letter requesting a Full Report. Office Depot recalled the Gibson Chair on May 22, 2014.

    Failure to Report

    18. In failing to inform the Commission immediately about the Quantum Chair and the Gibson Chair (together, “Subject Products”), Office Depot knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).

    19. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Office Depot is subject to civil penalties for its knowing failure to report, as required under section 15(b) of the CPSA, 15 U.S.C. 2064(b).

    RESPONSE OF OFFICE DEPOT

    20. This Agreement does not constitute an admission by Office Depot that the law has been violated. Office Depot neither admits nor denies the staff's charges set forth above, including but not limited to the contention that the Subject Products “contain[] a defect which could create a substantial product hazard . . . or create[] an unreasonable risk of serious injury or death,” 15 U.S.C. 2064(b); that Office Depot did not notify the Commission in a timely manner, in accordance with 15 U.S.C. 2064(b); and that there was any allegedly “knowing” violation of the CPSA as that term is defined in 15 U.S.C. 2069(d).

    21. The Quantum recall notice states that Office Depot received 14 reports of injuries in connection with about 150,000 Quantum chairs sold. There were fewer reports of consumers seeking medical treatment in connection with any reported injuries. The Gibson recall notice states that Office Depot received 25 reports of injuries in connection with about 1.4 million Gibson chairs sold. There were fewer reports of consumers seeking medical treatment in connection with any reported injuries. Office Depot investigated the reports, including by contacting the manufacturers of the Subject Products and the consumers making the reports.

    22. The Subject Products passed multiple safety tests administered by independent third party testing organizations.

    23. Following discussions with Office Depot, the manufacturer of the Quantum Chair reported the Quantum Chair to the CPSC in April 2009. Therefore, Office Depot did not make its own report.

    24. At all relevant times, Office Depot has had a product safety compliance program, including dedicated product safety personnel and appropriate product safety testing.

    25. As a retailer, Office Depot sells thousands of products and relies on product testing, conducted pursuant to voluntary industry standards, in order to protect its consumers. Office Depot reviews and reacts to consumer complaints and parts requests associated with office chairs.

    26. Office Depot enters into this Agreement to settle this matter without the delay and expense of litigation. Office Depot enters into this Agreement and agrees to pay the amount referenced below in compromise of staff's charges.

    AGREEMENT OF THE PARTIES

    27. Under the CPSA, the Commission has jurisdiction over the matter involving the Subject Products described herein and over Office Depot.

    28. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by Office Depot or a determination by the Commission that Office Depot violated the CPSA's reporting requirements.

    29. In settlement of staff's charges, and to avoid the cost, distraction, delay, uncertainty, and inconvenience of protracted litigation or other proceedings, Office Depot shall pay a civil penalty in the amount of three million, four hundred thousand dollars ($3,400,000) (“Settlement Payment”) within thirty (30) calendar days after receiving service of the Commission's final Order accepting the Agreement. The payment shall be made by electronic wire transfer to the Commission via: http://www.pay.gov.

    30. After staff receives this Agreement executed on behalf of Office Depot, staff shall promptly submit the Agreement to the Commission for provisional acceptance. Promptly following provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the Federal Register, in accordance with the procedures set forth in 16 CFR 1118.20(e). If the Commission does not receive any written request not to accept the Agreement within fifteen (15) calendar days, the Agreement shall be deemed finally accepted on the 16th calendar day after the date the Agreement is published in the Federal Register, in accordance with 16 CFR 1118.20(f).

    31. This Agreement is conditioned upon, and subject to, the Commission's final acceptance, as set forth above, and it is subject to the provisions of 16 CFR 1118.20(h). Upon the later of: (i) Commission's final acceptance of this Agreement and service of the accepted Agreement upon Office Depot, and (ii) the date of issuance of the final Order, this Agreement shall be in full force and effect and shall be binding upon the parties.

    32. Effective upon the later of: (i) the Commission's final acceptance of the Agreement and service of the accepted Agreement upon Office Depot, and (ii) and the date of issuance of the final Order, for good and valuable consideration, Office Depot hereby expressly and irrevocably waives and agrees not to assert any past, present, or future rights to the following, in connection with the matter described in this Agreement: (i) an administrative or judicial hearing; (ii) judicial review or other challenge or contest of the Commission's actions; (iii) a determination by the Commission of whether Office Depot failed to comply with the CPSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.

    33. Office Depot has and shall maintain a compliance program designed to ensure compliance with the CPSA with respect to any consumer product imported, manufactured, distributed, or sold by Office Depot. Office Depot's compliance program shall contain the following elements: (i) written standards and policies, including those designed to convey effectively to personnel responsible for CPSA compliance information (whether in the form of complaints, parts requests, incident reports, or otherwise) that may relate to or impact CPSA compliance; (ii) a mechanism for confidential employee reporting of compliance-related questions or concerns to either a compliance officer or to another senior manager with authority to act as necessary; (iii) effective communication of company compliance-related policies and procedures regarding the CPSA to the appropriate employees through training programs or otherwise; (iv) Office Depot senior management responsibility for, and general board oversight of, CPSA compliance; and (v) retention of all CPSA compliance-related records for at least five (5) years, and reasonable availability of such records, insofar as they are not protected by attorney-client, work product, or other privilege, to staff upon reasonable request.

    34. Office Depot has, and shall maintain and enforce, a system of internal controls and procedures designed to ensure that, with respect to all consumer products imported, manufactured, distributed, or sold by Office Depot: (i) information required to be disclosed by Office Depot to the Commission is recorded, processed, and reported in accordance with applicable law; (ii) all reporting made to the Commission is timely, truthful, complete, accurate, and in accordance with applicable law; and (iii) prompt disclosure is made to Office Depot's management of any significant deficiencies or material weaknesses in the design or operation of such internal controls that are reasonably likely to affect adversely, in any material respect, Office Depot's ability to record, process, and report to the Commission in accordance with applicable law.

    35. Upon reasonable request of staff, Office Depot shall provide written documentation of its internal controls and procedures, including, but not limited to, the effective dates of the procedures and improvements thereto. Office Depot shall cooperate fully and truthfully with staff and shall make available all non-privileged information and materials, and personnel deemed necessary by staff to evaluate Office Depot's compliance with the terms of the Agreement.

    36. The parties acknowledge and agree that the Commission may publicize the terms of the Agreement and the Order.

    37. Office Depot represents that the Agreement: (i) is entered into freely and voluntarily, without any degree of duress or compulsion whatsoever; (ii) has been duly authorized; and (iii) constitutes the valid and binding obligation of Office Depot, enforceable against Office Depot in accordance with its terms. Office Depot will not directly or indirectly receive any reimbursement, indemnification, insurance-related payment, or other payment in connection with the civil penalty to be paid by Office Depot pursuant to the Agreement and Order. The individuals signing the Agreement on behalf of Office Depot represent and warrant that they are duly authorized by Office Depot to execute the Agreement.

    38. The signatories represent that they are authorized to execute this Agreement.

    39. The Agreement is governed by the laws of the United States.

    40. The Agreement and the Order shall apply to, and be binding upon, Office Depot and each of its successors, transferees, and assigns, and a violation of the Agreement or Order may subject Office Depot, and each of its successors, transferees and assigns, to appropriate legal action.

    41. The Agreement and the Order constitute the complete agreement between the parties on the subject matter contained therein.

    42. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. For purposes of construction, the Agreement shall be deemed to have been drafted by both of the parties and shall not, therefore, be construed against any party for that reason in any subsequent dispute.

    43. The Agreement may not be waived, amended, modified, or otherwise altered, except as in accordance with the provisions of 16 CFR 1118.20(h). The Agreement may be executed in counterparts.

    44. If any provision of the Agreement or the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and Office Depot agree in writing that severing the provision materially affects the purpose of the Agreement and the Order.

    Dated: May 11, 2015

    OFFICE DEPOT, INC. By: Heather Stern Vice President, Associate General Counsel Office Depot, Inc. 6600 North Military Trail Boca Raton, FL 33496

    Dated: May 11, 2015

    By: Daniel F. Katz Luba Shur Counsel to Office Depot, Inc. Williams & Connolly LLP 725 Twelfth Street NW. Washington, DC 20005 U.S. CONSUMER PRODUCT SAFETY COMMISSION Stephanie Tsacoumis General Counsel Mary T. Boyle Deputy General Counsel Mary B. Murphy Assistant General Counsel

    Dated: May 11, 2015

    By: Sean R. Ward Trial Attorney Division of Compliance Office of the General Counsel UNITED STATES OF AMERICA CONSUMER PRODUCT SAFETY COMMISSION In the Matter of: Office Depot, Inc. CPSC Docket No.: 15-C0004 ORDER

    Upon consideration of the Settlement Agreement entered into between Office Depot, Inc. (“Office Depot”), and the U.S. Consumer Product Safety Commission (“Commission”), and the Commission having jurisdiction over the subject matter and over Office Depot, and it appearing that the Settlement Agreement and the Order are in the public interest, it is:

    ORDERED that the Settlement Agreement be, and is, hereby, accepted; and it is

    FURTHER ORDERED that Office Depot shall comply with the terms of the Settlement Agreement and shall pay a civil penalty in the amount of three million, four hundred thousand dollars ($3,400,000) within thirty (30) days after service of the Commission's final Order accepting the Settlement Agreement. The payment shall be made by electronic wire transfer to the Commission via: http://www.pay.gov. Upon the failure of Office Depot to make the foregoing payment when due, interest on the unpaid amount shall accrue and be paid by Office Depot at the federal legal rate of interest set forth at 28 U.S.C. 1961(a) and (b). If Office Depot fails to make such payment or to comply in full with any other provision of the Settlement Agreement, such conduct will be considered a violation of the Settlement Agreement and Order.

    Provisionally accepted and provisional Order issued on the 28th day of May, 2015.

    By order of the Commission.

    Todd A. Stevenson, Secretariat, U.S. Consumer Product Safety Commission.
    [FR Doc. 2015-13422 Filed 6-2-15; 8:45 am] BILLING CODE 6355-01-P
    DEPARTMENT OF DEFENSE Department of the Army Intent To Grant an Exclusive License of U.S. Government-Owned Patents AGENCY:

    Department of the Army, DoD.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with 35 U.S.C. 209 (e) and 37 CFR 404.7 (a)(1)(i), announcement is made of the intent to grant an exclusive, royalty-bearing, revocable license to US Patent number 7,702,473, issued April 20, 2010, entitled, “Submersible portable in-situ automated water quality biomonitoring apparatus and method” and US Patent number 6,988,394, issued January 24, 2006, entitled, “Apparatus and method of portable automated biomonitoring of water quality” and US Patent number 6,393,899, issued May 28, 2002, entitled, “Apparatus and method for automated biomonitoring of water quality” and US Patent number 6,058,763 issued May 9, 2000, entitled, “Apparatus and method for automated biomonitoring of water quality” and Canada Patent number 2,515,062 issued April 17, 2012, entitled “Apparatus and method of portable automated biomonitoring of water quality” to Solution Resources, LLC, with its principal place of business at 7906 Juniper Drive, Frederick, MD 21702.

    ADDRESSES:

    Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, MD 21702-5012.

    FOR FURTHER INFORMATION CONTACT:

    For licensing issues, Mr. Barry Datlof, Office of Research & Technology Assessment, (301) 619-0033. For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808, both at telefax (301) 619-5034.

    SUPPLEMENTARY INFORMATION:

    Anyone wishing to object to the grant of this license can file written objections along with supporting evidence, if any, within 15 days from the date of this publication. Written objections are to be filed with the Command Judge Advocate (see ADDRESSES).

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2015-13419 Filed 6-2-15; 8:45 am] BILLING CODE 3710-08-P
    DEPARTMENT OF DEFENSE Department of the Army Intent To Grant an Exclusive License for a U.S. Government-Owned Invention AGENCY:

    Department of the Army, DoD.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with 35 U.S.C. 209(e), and 37 CFR 404.7 (a)(1)(i), announcement is made of the intent to grant an exclusive, revocable license, to U.S. Provisional Patent No. 61/884,630, filed September 30, 2013, entitled “Intelligent Focused Assessment with Sonography for Trauma,” and foreign filing PCT/US2014/058374, filed September 30, 2014, entitled, “Automatic Focused Assessment with Sonography for Trauma Exams.” The intended licensee is Cherokee Nation Diagnostic Innovations, with its principal place of business at 10838 E. Marshall St., Tulsa, OK, 74116.

    ADDRESSES:

    Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, MD 21702-5012.

    FOR FURTHER INFORMATION CONTACT:

    For licensing issues, Barry M. Datlof, Office of Research and Technology Applications (ORTA), (301) 619-0033. For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808, both at telefax (301) 619-5034.

    SUPPLEMENTARY INFORMATION:

    Anyone wishing to object to the grant of this license can file written objections along with supporting evidence, if any, within 15 days from the date of this publication. Written objections are to be filed with the Command Judge Advocate (see ADDRESSES).

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2015-13420 Filed 6-2-15; 8:45 am] BILLING CODE 3710-08-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal No. 15-36] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 15-36 with attached transmittal, policy justification, and Sensitivity of Technology.

    Dated: May 29, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. BILLING CODE 5001-06-P EN03JN15.017 BILLING CODE 5001-06-C Transmittal No. 15-36 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as amended

    (i) Prospective Purchaser: Israel

    (ii) Total Estimated Value:

    Major Defense Equipment * $1.353 billion Other $ .526 billion TOTAL $1.879 billion * as defined in Section 47(6) of the Arms Export Control Act.

    (iii) Description and Quantity or Quantities of Articles or Services under Consideration for Purchase: 14,500 KMU-556C/B Joint Direct Attack Munitions (JDAM) tail kits consisting of 10,000 for Mk-84; 500 for Mk-83; and 4,000 for Mk-82; 3,500 Mk-82 bombs; 4,500 Mk-83 bombs; 50 BLU-113 bombs; 4,100 GBU-39 Small Diameter bombs; 1,500 Mk-83 Paveway kits; 700 BLU-109 Paveway kits; 3,000 AGM-114K/R Hellfire Missiles, 250 AIM-120C-7 Advanced Medium Range Air-to-Air Missiles; and 500 DSU-38A/B Detector Laser Illuminated Target kits for JDAMs.

    (iv) Military Department: Air Force (YAB)

    (v) Prior Related Cases, if any:

    FMS case YEQ-$34M-9Feb00 FMS case YET-$22M-9Sep02 FMS case YEV-$18M-16Jul04 FMS case YEX-$18M-14Jul04 FMS case AMD-$3M-6Jul06 FMS case AMF-$4M-18Jul06 FMS case AMG-$44M-18Jul06 FMS case AMH-$3M-25Jul06 FMS case AMI-$12M-23Jul06 FMS case AMJ-$18M-25Jul06 FMS case AMK-$6M-25Jul06 FMS case AML-$5M-5Oct06 FMS case AMM-$6M-8Jul06 FMS case AMN-$60M-5Oct06 FMS case AMP-$10M-31Aug06 FMS case AMQ-$26-5Oct06 FMS case AMR-$1M-15Sep06 FMS case AMS-$14M-5Mar07 FMS case AMV-$25M-20Jun07 FMS case QDQ-$1M-21Jul06 FMS case ABF-$109M-13Nov14 FMS case QEG-$86M-20Jun13 FMS case ZWX-$47M-29Aug14

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: See Attached Annex

    (viii) Date Report Delivered to Congress: 18 May 2015

    Policy Justification

    Israel—Joint Direct Attack Munition Tail Kits and Munitions

    The Government of Israel has requested a possible sale of 14,500 KMU-556C/B Joint Direct Attack Munitions (JDAM) tail kits consisting of 10,000 for Mk-84; 500 for Mk-83; and 4,000 for Mk-82; 3,500 Mk-82 bombs; 4,500 Mk-83 bombs; 50 BLU-113 bombs; 4,100 GBU-39 Small Diameter bombs; 1,500 Mk-83 Paveway kits; 700 BLU-109 Paveway kits; 3,000 AGM-114K/R Hellfire Missiles, 250 AIM-120C Advanced Medium Range Air-to-Air Missiles; and 500 DSU-38A/B Detector Laser Illuminated Target kits for JDAMs. The total estimated cost $1.879 billion.

    The United States is committed to the security of Israel, and it is vital to U.S. national interests to assist Israel to develop and maintain a strong and ready self-defense capability. This proposed sale is consistent with those objectives.

    The proposed sale of this equipment will provide Israel the ability to support its self-defense needs. These munitions will enable Israel to maintain operational capability of its existing systems and will enhance Israel's interoperability with the United States. Israel, which already has these munitions in its inventory, will have no difficulty absorbing the additional munitions into its armed forces.

    The proposed sale of these munitions will not alter the basic military balance in the region.

    The principal contractors will be The Boeing Company in St. Charles, Missouri; Lockheed-Martin Company in Archbald, Pennsylvania; General Dynamics in Garland, Texas; Elwood National Forge Co. in Irvine, Pennsylvania; and Raytheon Missile Systems in Tucson, Arizona. There are no known offset agreements in connection with this proposed sale.

    Implementation of this proposed sale will require travel of U.S. Government or contractor representatives to Israel on a temporary basis for program technical support and management oversight.

    There is no adverse impact on U.S. defense readiness as a result of this sale.

    Transmittal No. 15-36 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act Annex Item No. vii

    (vii) Sensitivity of Technology:

    1. The Joint Direct Attack Munition (JDAM) is a guidance tail kit that converts unguided free-fall bombs into accurate, adverse weather “smart” munitions. With the addition of a new tail section that contains an inertial navigational system and a global positioning system guidance control unit, JDAM improves the accuracy of unguided, general-purpose bombs in any weather condition. JDAM can be launched from very low to very high altitudes in a dive, toss and loft, or in straight and level flight with an on-axis or off-axis delivery. JDAM enables multiple weapons to be directed against single or multiple targets on a single pass. The JDAM All Up Round (AUR) and all of its components are Unclassified, and technical data for JDAM is classified up to Secret.

    2. The GBU-39 Small Diameter Bomb (SDB) is a 250-lb class precision guided munition that is intended to provide aircraft with an ability to carry a high number of bombs. The weapon offers day- or night-, adverse weather-, precision-engagement capability against pre-planned fixed or stationary soft, non-hardened, and hardened targets, and provides greater than 50 Nautical Miles of standoff range. Aircraft are able to carry four SDBs in place of one 2,000-lb bomb. The SDB is equipped with a Global Positioning Satellite (GPS)-aided inertial navigation system. The SDB and all of its components are Unclassified; technical data are classified up to Secret.

    3. The AIM-120C-7 Advanced Medium Range Air-to-Air Missile (AMRAAM) is a radar guided missile featuring digital technology and micro-miniature solid-state electronics. AMRAAM capabilities include look-down/shoot-down, multiple launches against multiple targets, resistance to electronic countermeasures, and interception of high- and low-flying and maneuvering targets. The AMRAAM All Up Round (AUR) is classified Confidential, major components and subsystems range from Unclassified to Confidential, and technical data and other documentation are classified up to Secret.

    4. The DSU-38A/B is a laser-illuminated target detector that adds a Precision Laser Guidance Set (PLGS) to inventory JDAMs, giving the weapon system optional semi-active laser guidance in addition to its other Global Positioning System/Inrertial Navigation System (GPS/INS) guidance modes. The DSU-38A/B is a DSU-33 form-factored passive laser seeker that can be easily installed in the field to the front of existing JDAM weapons and is connected to the Guidance Set via an externally mounted strap-on harness kit. The DSU-38 provides an additional capability to engage mobile targets moving up to 70 mph. The addition of the DSU-38 Laser sensor combined with additional cabling and mounting hardware turns a standard GBU-38 JDAM into a GBU-54 Laser JDAM. The DSU-38 hardware is Unclassified; technical data and other documentation are classified up to Secret.

    5. The AGM-114R Hellfire II is an air-to-ground missile used against heavy and light armored targets, thin-skinned vehicles, urban structures, bunkers, caves and personnel. The missile is Inertial Measurement Unit (IMU) based, with a variable delay fuse, improved safety and reliability. The highest level of release for the Hellfire missile is Secret, based upon the software. The highest level of classified information that could be disclosed by a proposed sale or by testing of the end item is Secret; the highest level that must be disclosed for production, maintenance, or training is Confidential. Reverse engineering could reveal confidential information. Vulnerability data, countermeasures, vulnerability/susceptibility analyses, and threat definitions are classified Secret or Confidential.

    6. If a technologically advanced adversary obtained knowledge of the specific hardware and software elements in the systems described above, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.

    7. A determination has been made that Government of Israel can provide substantially the same degree of protection of the sensitive technology associated with these systems as the U.S. Government. This proposed sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.

    8. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Israel.

    [FR Doc. 2015-13478 Filed 6-2-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Transmittal Nos. 15-17] 36(b)(1) Arms Sales Notification AGENCY:

    Defense Security Cooperation Agency, Department of Defense.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.

    FOR FURTHER INFORMATION CONTACT:

    Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.

    The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 15-17 with attached transmittal, policy justification, and Sensitivity of Technology.

    Dated: May 29, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. BILLING CODE 5001-06-P EN03JN15.020 BILLING CODE 5001-06-C Transmittal No. 15-17 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as Amended

    (i) Prospective Purchaser: Saudi Arabia

    (ii) Total Estimated Value:

    Major Defense Equipment * $1.25 billion Other $ .65 billion Total $1.90 billion * as defined in Section 47(6) of the Arms Export Control Act.

    (iii) Description and Quantity or Quantities of Articles or Services under Consideration for Purchase: ten (10) MH-60R multi-mission helicopters with fourteen (14) APS-153(V) Multi-Mode radars (10 installed, 2 spares and 2 for testing); twenty-four T-700 GE 401 C engines (20 installed and 4 spares); twelve (12) APX-123 Identification Friend or Foe transponders (10 installed and 2 spares); fourteen (14) AN/AAS-44C(V) Multi-Spectral Targeting Systems Forward Looking Infrared Radars (10 installed, 2 spares, and 2 for testing); twenty-six (26) Embedded Global Positioning System/Inertial Navigation Systems with Selective Availability/Anti-Spoofing Module (20 installed and 6 spares); Link-16 capability; one-thousand (1,000) AN/SSQ-36/53/62 Sonobuoys; thirty-eight (38) AGM-114R Hellfire II missiles; five (5) AGM-114 M36-E9 Captive Air Training missiles; four (4) AGM-114Q Hellfire Training Missiles; three-hundred eighty (380) Advanced Precision Kill Weapons System rockets; twelve (12) M-240D crew served weapons; and twelve (12) GAU-21 crew served weapons. Also included are spare engine containers; facilities study and design; spare and repair parts; support and test equipment; communication equipment; aerial refueling services; ferry support; publications and technical documentation; personnel training and training equipment; U.S. Government and contractor engineering, technical and logistics support services; and other related elements of logistical and program support.

    (iv) Military Department: Navy (SBU, GBQ, TCZ) Army (HEW).

    (v) Prior Related Cases, if any: None.

    (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed to be Paid: None.

    (vii) Sensitivity of Technology Contained in the Defense Article or Defense Services Proposed to be Sold: See Attached Annex.

    (viii) Date Report Delivered to Congress: 20 May 2015.

    POLICY JUSTIFICATION Kingdom of Saudi Arabia—MH-60R Multi-Mission Helicopters

    The Government of Saudi Arabia has requested a sale of ten (10) MH-60R multi-mission helicopters fourteen (14) APS-153(V) Multi-Mode radars (10 installed, 2 spares and 2 for testing); twenty-four T-700 GE 401 C engines (20 installed and 4 spares); twelve (12) APX-123 Identification Friend or Foe transponders (10 installed and 2 spares); fourteen (14) AN/AAS-44C(V) Multi-Spectral Targeting Systems Forward Looking Infrared Radars (10 installed, 2 spares, and 2 for testing); twenty-six (26) Embedded Global Positioning System/Inertial Navigation Systems with Selective Availability/Anti-Spoofing Module (20 installed and 6 spares); and Link-16 capability; one-thousand (1,000) AN/SSQ-36/53/62 Sonobuoys; thirty-eight (38) AGM-114R Hellfire II missiles; five (5) AGM-114 M36-E9 Captive Air Training missiles; four (4) AGM-114Q Hellfire Training Missiles; three-hundred eighty (380) Advanced Precision Kill Weapons System rockets; twelve (12) M-240D crew served weapons; and twelve (12) GAU-21 crew served weapons. Also included are spare engine containers; facilities study and design; spare and repair parts; support and test equipment; communication equipment; aerial refueling services; ferry support; publications and technical documentation; personnel training and training equipment; U.S. Government and contractor engineering, technical and logistics support services; and other related elements of logistical and program support. The estimated cost is $1.9 billion.

    This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a strategic regional partner, which has been, and continues to be, an important force for political stability and economic progress in the Middle East.

    The proposed sale will improve Saudi Arabia's capability to meet current and future threats from enemy weapon systems. The MH-60R Multi-Mission Helicopter will provide the capability to identify, engage, and defeat maritime security threats along with the ability to perform secondary missions including vertical replenishment, search and rescue, and communications relay. Saudi Arabia will use the enhanced capability as a deterrent to regional threats and to strengthen its homeland defense.

    The proposed sale of this equipment and support will not alter the basic military balance in the region.

    The principal contractors will be Sikorsky Aircraft Corporation in Stratford, Connecticut; and Lockheed Martin Corporation in Owego, New York. There are no known offset agreements in connection with this potential sale.

    Implementation of this proposed sale will require the assignment of additional U.S. Government and/or contractor representatives to Saudi Arabia.

    There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.

    Transmittal No. 15-17 Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Arms Export Control Act, as Amended Annex—Item No. vii

    (vii) Sensitivity of Technology

    1. The MH-60R Multi-Mission Helicopter focuses primarily on anti-submarine and anti-surface warfare missions. The MH-60R carries several sensors and data links to enhance its ability to work in a network centric battle group and as an extension of its home ship/main operating base. The mission equipment subsystem consists of the following sensors and subsystems: An acoustics systems consisting of a dipping sonar and sonobuoys, Multi-Mode Radar (MMR) with integral Identification Friend or Foe (IFF) interrogator, Electronic Support Measures (ESM), Integrated Self-Defense (ISD), and Multi-Spectral Targeting System (MTS). The aircraft processes sensor data onboard, and transmits data via Common Data Link (CDL) (also referred to as Hawklink), or Link-16. It can carry AGM-114A/B/K/R Hellfire missiles, as well as Mk 46 or Mk 54 torpedoes to engage surface and sub-surface targets. The Saudi MH-60R platform will include provisions for both the Mk 46 and the Mk 54 light weight torpedo. The MH-60R weapons system is classified up to Secret. Unless otherwise noted below, MH-60R hardware and support equipment, test equipment and maintenance spares are unclassified except when electrical power is applied to hardware containing volatile data storage. Technical data and documentation for MH-60R weapons systems (to include sub-systems and weapons listed below) are classified up to Secret. The sensitive technologies include:

    a. The AGM-114R HELLFIRE missile is an air-to-surface missile with a multi-mission, multi-target, precision strike capability. The HELLLFIRE can be launched from multiple air platforms and is the primary precision weapon for the United States Army. The highest level for release of the AGM-114R HELLFIRE II is Secret, based upon the software. The highest level of classified information that could be disclosed by a proposed sale or by testing of the end item is Secret; the highest level that must be disclosed for production, maintenance, or training is Confidential. Reverse engineering could reveal Confidential information. Vulnerability data, countermeasures, vulnerability/susceptibility analyses, and threat definitions are classified Secret or Confidential.

    b. Advanced Precision Kill Weapons System (APKWS) laser guided rocket to counter the fast attack craft and fast inshore attack craft threat. APKWS hardware is Unclassified.

    c. Communications security devices contain sensitive encryption algorithms and keying material. The purchasing country has previously been released and utilizes COMSEC devices in accordance with set procedures and without issue. COMSEC devices will be classified up to Secret when keys are loaded.

    d. Identification Friend or Foe (IFF) (KIV-77) contains embedded security devices containing sensitive encryption algorithms and keying material. The purchasing country will utilize COMSEC devices in accordance with set procedures. The AN/APX-123 is classified up to Secret.

    e. GPS/PPS/SAASM—Global Positioning System (GPS) provides a space-based Global Navigation Satellite System (GNSS) that has reliable location and time information in all weather and at all times and anywhere on or near the Earth when and where there is an unobstructed line of sight to four or more GPS satellites. Selective Availability/Anti-Spoofing Module (SAASM) (AN/PSN-11) is used by military GPS receivers to allow decryption of precision GPS coordinates. In addition, the GPS Antenna System (GAS-1) provides protection from enemy manipulation of the GPS system. The GPS hardware is Unclassified. When electrical power is applied, the system is classified up to Secret.

    f. Ku-Band CDL (AN/ARQ-59; also referred to as Hawklink) and Link-16 capability to enable network centric capabilities, and improve data communications leading to a Common Operating Picture (COP). Link-16 implementation will be consistent with capabilities already in operation with Saudi Arabian defense forces. CDL implementation will utilize commercial encryption. The AN/ARQ-59 hardware is unclassified when COMSEC module is not loaded with a key, when a key is loaded it is classified up to Secret. The Link-16 hardware is Unclassified. When electrical power is applied it is classified up to Secret.

    g. Acoustics algorithms are used to process dipping sonar and sonobuoy data for target tracking and for the Acoustics Mission Planner (AMP), which is a tactical aid employed to optimize the deployment of sonobuoys and the dipping sonar. Acoustics hardware is Unclassified. The acoustics system is classified up to Secret when environmental and threat databases are loaded and/or the system is processing acoustic data.

    h. The AN/APS-153 multi-mode radar with an integrated IFF and Inverse Synthetic Aperture (ISAR) provides target surveillance/detection capability. The AN/APS-153 hardware is unclassified. When electrical power is applied and mission data loaded, the AN/APS-153 is classified up to Secret.

    i. The AN/ALQ-210 (ESM) system identifies the location of an emitter. The ability of the system to identify specific emitters depends on the data provided by Saudi Arabia. The AN/ALQ-210 hardware is Unclassified. When electrical power is applied and mission data loaded, the AN/ALQ-210 system is classified up to Secret.

    j. The AN/AAS-44C(V) Forward Looking Infrared Radar (FLIR) uses the Multi-spectral Targeting System (MTS) that allows it to operate in day/night and adverse weather conditions. Imagery is provided by an Infrared sensor, a color/monochrome DTV, and a Low-Light TV. The AN/AAS-44C(V) hardware is Unclassified. When electrical power is applied, the AN/AAS-44C(V) is classified up to Secret.

    k. Ultra High Frequency/Very High Frequency (UHF/VHF) Radios (ARC 210) contain embedded sensitive encryption algorithms and keying material. The purchasing country will utilize COMSEC devices in accordance with set procedures. The ARC-210 hardware is Unclassified. When electrical power is applied and mission data loaded, the ARC-210 is classified up to Secret.

    l. Satellite Communications Demand Assigned Multiple Access (SATCOM DAMA) and Single Channel Ground to Air Radio Systems (SINCGARS), which provide increased, interoperable communications capabilities with US forces. SATCOM DAMA and SINCGARS hardware is Unclassified. When electrical power is applied and mission data loaded these systems are classified up to Secret.

    2. All the mission data, including sensitive parameters, is loaded from an off board station before each flight and does not stay with the aircraft after electrical power has been removed. Sensitive technologies are protected as defined in the program protection and anti-tamper plans. The mission data and off board station are classified up to Secret.

    3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.

    4. A determination has been made that the recipient country can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.

    5. All defense articles and services listed in this transmittal have been authorized for release and export to Saudi Arabia.

    [FR Doc. 2015-13497 Filed 6-2-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee Meeting AGENCY:

    Department of Defense.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Judicial Proceedings since Fiscal Year 2012 Amendments Panel (“the Judicial Proceedings Panel” or “the Panel”). The meeting is open to the public.

    DATES:

    A meeting of the Judicial Proceedings Panel will be held on Thursday, June 18, 2015. The Public Session will begin at 9:00 a.m. and end at 5:00 p.m.

    ADDRESSES:

    The George Washington University, School of Law, Faculty Conference Center, 2000 H St. NW., Washington, DC 20052.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Julie Carson, Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, VA 22203. Email: [email protected]. Phone: (703) 693-3849. Web site: http://jpp.whs.mil.

    SUPPLEMENTARY INFORMATION:

    This public meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.

    Purpose of the Meeting: In Section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), as amended, Congress tasked the Judicial Proceedings Panel to conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice involving adult sexual assault and related offenses since the amendments made to the Uniform Code of Military Justice by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81; 125 Stat. 1404), for the purpose of developing recommendations for improvements to such proceedings. At this meeting, the Panel will consider the issues of social and professional retaliation against individuals who report incidents of sexual assault within the military, as well as restitution and compensation for victims. The Panel is interested in written and oral comments from the public, including non-governmental organizations, relevant to these issues or any of the Panel's tasks.

    Agenda • 8:30-9:00 Administrative Work (41 CFR 102-3.160, not subject to notice & open meeting requirements) • 9:00-10:30 SVC Perspectives on Retaliation Against Victims of Sexual Assault Crimes in the Military (public meeting begins) Presenters: Service SVCs and VLCs • 10:30-12:00 Deliberations on Prevention and Response to Retaliation • 12:00-12:30 Lunch • 12:30-1:00 Administrative Work (41 CFR 102-3.160, not subject to notice & open meeting requirements) • 1:00-2:00 Review of Relevant UCMJ Provisions, Fines, and Forfeitures and Further Deliberations on Restitution as an Authorized Punishment at Court-Martial (public meeting resumes) Presenters: Subject matter experts on UCMJ, Fines and Forfeitures • 2:00-3:30 Overview of the Continuation of Care for Former Active-Duty Service Members and Dependents who are Victims of Sexual Assault Presenters: Subject matter experts from DoD, Defense Health Agency, Veterans Health Administration and Veterans Benefits Administration • 3:30-4:30 Deliberations on Developing a DoD Uniform Crime Victim Compensation Program with Consultation from Claims System Experts Presenters: Subject matter experts on military claims and crime victim compensation boards • 4:30-4:45 Recommendations Regarding Restitution and Compensation • 4:45-5:00 Public Comment

    Availability of Materials for the Meeting: A copy of the June 18, 2015 meeting agenda or any updates to the agenda, to include individual speakers not identified at the time of this notice, as well as other materials presented related to the meeting, may be obtained at the meeting or from the Panel's Web site at http://jpp.whs.mil.

    Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Seating is limited and is on a first-come basis.

    Special Accommodations: Individuals requiring special accommodations to access the public meeting should contact Ms. Julie Carson at [email protected] at least five (5) business days prior to the meeting so that appropriate arrangements can be made.

    Procedures for Providing Public Comments: Pursuant to 41 CFR 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written comments to the Panel about its mission and topics pertaining to this public session. Written comments must be received by Ms. Julie Carson at least five (5) business days prior to the meeting date so that they may be made available to the Judicial Proceedings Panel for their consideration prior to the meeting. Written comments should be submitted via email to Ms. Carson at [email protected] in the following formats: Adobe Acrobat or Microsoft Word. Please note that since the Judicial Proceedings Panel operates under the provisions of the Federal Advisory Committee Act, as amended, all written comments will be treated as public documents and will be made available for public inspection. If members of the public are interested in making an oral statement, a written statement must be submitted along with a request to provide an oral statement. Oral presentations by members of the public will be permitted between 4:45 p.m. and 5:00 p.m. on June 18, 2015 in front of the Panel. The number of oral presentations to be made will depend on the number of requests received from members of the public on a first-come basis. After reviewing the requests for oral presentation, the Chairperson and the Designated Federal Officer will, having determined the statement to be relevant to the Panel's mission, allot five minutes to persons desiring to make an oral presentation.

    Committee's Designated Federal Officer: The Panel's Designated Federal Officer is Ms. Maria Fried, Judicial Proceedings Panel, 1600 Defense Pentagon, Room 3B747, Washington, DC 20301-1600.

    Dated: May 28, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2015-13400 Filed 6-2-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DoD-2015-OS-0058] Proposed Collection; Comment Request AGENCY:

    Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics, DoD.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by August 3, 2015.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

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

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.

    Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at http://www.regulations.gov for submitting comments. Please submit comments on any given form identified by docket number, form number, and title.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of Economic Adjustment, 2231 Crystal Drive, Suite 520, Arlington, Virginia 22202, ATTN: Nia Hope, or call at 571-213-6791.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Application Information Public Schools on Military Installations; OMB Control Number 0790-0006.

    Needs and Uses: This is a request for information to qualify for noncompetitive funds. OEA is authorized to provide up to $945 million “to make grants, conclude cooperative agreements, or supplement other Federal funds to construct, renovate, repair, or expand elementary and secondary public schools on military installations in order to address capacity or facility condition deficiencies at such schools.” Local Education Agencies (LEAs) representing the schools with the most serious capacity and facility condition deficiencies will be invited to submit a request for funding. Only LEAs that operate a public school on a military installation, and receive a written invitation from OEA, may request funds under this program. LEAs that are invited to apply will be asked by OEA to submit a project proposal within 90 days using the Application for Federal Assistance Standard Form 424 (OMB Number: 4040-0004). Proposal information listed in the Federal Register notice will supplement the application and assist OEA in determining compliance with legal and programmatic requirements. Grant awards will be made to successful applicants until the available funds are exhausted.

    Affected Public: State, local, or tribal government.

    Annual Burden Hours: 1,100 hours.

    Number of Respondents: 50.

    Responses per Respondent: 1.

    Annual Responses: 50.

    Average Burden per Response: 22 hours.

    Frequency: On occasion.

    Dated: May 29, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2015-13454 Filed 6-2-15; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Native American-Serving Nontribal Institutions Program AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    Overview Information: Native American-Serving Nontribal Institutions (NASNTI) Program

    Notice inviting applications for new awards for fiscal year (FY) 2015.

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.031X.

    DATES:

    Applications Available: June 3, 2015.

    Deadline for Transmittal of Applications: July 6, 2015.

    Deadline for Intergovernmental Review: September 1, 2015.

    SUPPLEMENTARY INFORMATION:

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The NASNTI Program provides grants to eligible institutions of higher education (IHEs) that have an undergraduate enrollment of at least 10 percent Native American students to assist such institutions to plan, develop, undertake, and carry out activities to improve and expand such institutions' capacity to serve Native American and low-income individuals.

    Background: We encourage applicants to read carefully the Selection Criteria section of this notice. Consistent with the Department's increasing emphasis in recent years on promoting evidence-based practices through our grant competitions, the Secretary will evaluate applications on the extent to which the proposed project is supported by a logic model that meets the evidence standard of “strong theory” (as defined in this notice). Resources to assist applicants in creating a logic model can be found here: http://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014007.pdf.

    Priorities: This notice contains one absolute priority, two competitive preference priorities, and one invitational priority. The absolute priority is from the Department's notice of final supplemental priorities and definitions for discretionary grant programs (Supplemental Priorities), published in the Federal Register on December 10, 2014 (79 FR 73425). Competitive Preference Priority 1 is from section 320(c)(2)(H) of the Higher Education Act of 1965, as amended (HEA). Competitive Preference Priority 2 is from the Supplemental Priorities.

    Absolute Priority: For FY 2015 and any subsequent year in which we make awards from the list of unfunded applicants from this competition, this priority is an absolute priority. Under 34 CFR 75.105(c)(3), we consider only applications that meet this priority.

    This priority is:

    Projects that are designed to increase the number and proportion of high-need students (as defined in this notice) who are academically prepared for, enroll in, or complete on time college, other postsecondary education, or other career and technical education.

    Competitive Preference Priorities: For FY 2015 and any subsequent year in which we make awards from the list of unfunded applicants from this competition, these priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2)(i), we award an application up to three additional points for each priority, for a total of up to six additional points, depending on how well the application meets each of these priorities.

    These priorities are:

    Competitive Preference Priority 1 (up to 3 additional points).

    Academic tutoring and counseling programs and student support services.

    Competitive Preference Priority 2 (up to 3 additional points).

    Projects that are designed to leverage technology through implementing high-quality accessible digital tools, assessments, and materials that are aligned with rigorous college- and career-ready standards.

    Invitational Priority: For FY 2015 and any subsequent year in which we make awards from the list of unfunded applicants from this competition, this priority is an invitational priority. Under 34 CFR 75.105(c)(1), we do not give an application that meets this invitational priority a competitive or absolute preference over other applications.

    This priority is:

    Projects that support activities that strengthen Native American language preservation and revitalization. Definitions: The following definitions are from the Supplemental Priorities and from 34 CFR 77.1 and apply to the priorities and selection criteria in this notice:

    High-minority school means a school as that term is defined by a local educational agency (LEA), which must define the term in a manner consistent with its State's Teacher Equity Plan, as required by section 1111(b)(8)(C) of the Elementary and Secondary Education Act of 1965, as amended (ESEA). The applicant must provide the definition(s) of high-minority schools used in its application.

    High-need students means students who are at risk of educational failure or otherwise in need of special assistance and support, such as students who are living in poverty, who attend high-minority schools, who are far below grade level, who have left school before receiving a regular high school diploma, who are at risk of not graduating with a diploma on time, who are homeless, who are in foster care, who have been incarcerated, who have disabilities, or who are English learners.

    Logic model (also referred to as theory of action) means a well-specified conceptual framework that identifies key components of the proposed process, product, strategy, or practice (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the relationships among the key components and outcomes, theoretically and operationally.

    Note:

    In developing logic models, applicants may want to use resources such as the Pacific Education Laboratory's Education Logic Model Application (http://relpacific.mcrel.org/resources/elm-app or http://files.eric.ed.gov/fulltext/ED544779.pdf) to help design their logic models.

    Regular high school diploma means the standard high school diploma that is awarded to students in the State and that is fully aligned with the State's academic content standards or a higher diploma and does not include a General Education Development credential, certificate of attendance, or any alternative award.

    Strong theory means a rationale for the proposed process, product, strategy, or practice that includes a logic model.

    Program Authority:

    Title III, part A, section 319 of the HEA (20 U.S.C. 1059f).

    Applicable Regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 75, 77, 79, 82, 84, 86, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended in 2 CFR part 3474. (d) The regulations for this program in 34 CFR part 607. (e) The Supplemental Priorities.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: $3,113,000.

    Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2016 from the list of unfunded applicants from this competition.

    Estimated Range of Awards: $300,000-$400,000 per year.

    Estimated Average Size of Awards: $350,000 per year.

    Maximum Award: We will reject any application that proposes a budget exceeding $400,000 for a single budget period of 12 months. The Assistant Secretary for Postsecondary Education may change the maximum amount through a notice published in the Federal Register.

    Estimated Number of Awards: 8.

    Note:

    The Department is not bound by any estimates in this notice.

    Project Period: Up to 60 months.

    III. Eligibility Information

    1. Eligible Applicants: (a) An IHE is eligible to receive funds under the NASNTI Program if it qualifies as a Native American-Serving Nontribal Institution. At the time of application, IHEs applying for funds under the NASNTI Program must have an enrollment of undergraduate students that is at least 10 percent Native American, as defined as follows:

    Native American means a person who is of a tribe, people, or culture that is indigenous to the United States.

    At the time of submission of their applications, applicants must certify their total undergraduate headcount enrollment and that 10 percent of the IHE's enrollment is Native American. An assurance form, which is included in the application materials for this competition, must be signed by an official for the applicant and submitted.

    To qualify as an eligible institution under the NASNTI Program, an institution must also be—

    (i) Accredited or pre-accredited by a nationally recognized accrediting agency or association that the Secretary has determined to be a reliable authority as to the quality of education or training offered;

    (ii) Legally authorized by the State in which it is located to be a junior or community college or to provide an educational program for which it awards a bachelor's degree; and

    (iii) Designated as an “eligible institution” by demonstrating that it has: (A) an enrollment of needy students as described in 34 CFR 607.3; and (B) below average educational and general expenditures per full-time equivalent (FTE) undergraduate student as described in 34 CFR 607.4.

    Note:

    The notice for applying for designation as an eligible institution was published in the Federal Register on November 3, 2014 (79 FR 65197) and applications were due on December 22, 2014. Only institutions that submitted applications by the deadline date and that the Department determined are eligible may apply for a grant.

    (b) A grantee under the Developing Hispanic-Serving Institutions (HSI) Program, which is authorized by title V, part A of the HEA, may not receive a grant under any HEA, title III, part A program, including the NASNTI Program. Further, a current HSI Program grantee may not give up its HSI grant in order to receive a grant under any title III, part A program.

    An eligible HSI that is not a current grantee under the HSI Program may apply for a FY 2015 grant under all title III, part A programs for which it is eligible, as well as under the HSI Program. However, a successful applicant may receive only one grant.

    2. a. Cost Sharing or Matching: This program does not require cost sharing or matching unless funds are used for an endowment.

    b. Supplement-Not-Supplant: This program involves supplement-not-supplant funding requirements. Grant funds must be used to supplement and, to the extent practical, increase the funds that would otherwise be available for the activities to be carried out under the grant and in no case supplant those funds (34 CFR 607.30(b)).

    IV. Application and Submission Information

    1. Address to Request Application Package: Bora Mpinja or Don Crews, U.S. Department of Education, 1990 K Street NW., 6th floor, Washington, DC 20006-8513. You may contact these individuals at the following email addresses or telephone numbers: [email protected]; (202) 502-7629, [email protected]; (202) 502-7574.

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    You can also obtain an application via the Internet using the following address: www.Grants.gov.

    Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting one of the program contact people listed in this section.

    2. Content and Form of Application Submission: Requirements concerning the content of an application, together with the forms you must submit, are in the application package for this program.

    Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria, the absolute priority, the competitive preference priorities, and the invitational priority that reviewers use to evaluate your application. We have established mandatory page limits. You must limit the section of the application narrative that addresses:

    • The selection criteria to no more than 50 pages.

    • The absolute priority to no more than three pages.

    • A competitive preference priority, if you are addressing one or both, to no more than three pages (for a total of six pages if you address both).

    • The invitational priority to no more than two pages, if you address it.

    Accordingly, under no circumstances may the application narrative exceed 61 pages.

    Please include a separate heading for the absolute priority and for each competitive preference priority and invitational priority that you address.

    For the purpose of determining compliance with the page limits, each page on which there are words will be counted as one full page. Applicants must use the following standards:

    • A “page” is 8.5″ x 11″, on one side only, with 1” margins at the top, bottom, and both sides. Page numbers and an identifier may be within the 1″ margins.

    • Double space (no more than three lines per vertical inch) all text in the application narrative, except titles, headings, footnotes, quotations, references, and captions and all text in charts, tables, figures, and graphs. These items may be single-spaced. Charts, tables, figures, and graphs in the application narrative count toward the page limits.

    • Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch). However, you may use a 10-point font in charts, tables, figures, graphs, footnotes, and endnotes.

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.

    The page limit does not apply to Part I, the Application for Federal Assistance (SF 424); the Supplemental Information for SF 424 Form; Part II, the Budget Information Summary Form (ED Form 524); and Part IV, the assurances and certifications. The page limit also does not apply to the table of contents, the one-page abstract, the resumes, the bibliography, or the letters of support. If you include any attachments or appendices, these items will be counted as part of the application narrative for purposes of the page-limit requirement. You must include your complete response to the selection criteria and priorities in the application narrative.

    We will reject your application if you exceed the page limits.

    3. Submission Dates and Times:

    Applications Available: June 3, 2015.

    Deadline for Transmittal of Applications: July 6, 2015.

    Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7. Other Submission Requirements of this notice.

    We do not consider an application that does not comply with the deadline requirements.

    Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the application process, the individual's application remains subject to all other requirements and limitations in this notice.

    Deadline for Intergovernmental Review: September 1, 2015.

    4. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this competition.

    5. Funding Restrictions: We reference regulations outlining funding restrictions in the Applicable Regulations section of this notice.

    6. Data Universal Numbering System Number, Taxpayer Identification Number, and System for Award Management: To do business with the Department of Education, you must—

    a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);

    b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;

    c. Provide your DUNS number and TIN on your application; and

    d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.

    You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.

    If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.

    The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.

    Note:

    Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.

    If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.

    Information about SAM is available at www.SAM.gov. To further assist you with obtaining and registering your DUNS number and TIN in SAM or updating your existing SAM account, we have prepared a SAM.gov Tip Sheet, which you can find at: www2.ed.gov/fund/grant/apply/sam-faqs.html.

    In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page: www.grants.gov/web/grants/register.html.

    7. Other Submission Requirements: Applications for grants under the NASNTI Program must be submitted electronically unless you qualify for an exception to this requirement in accordance with the instructions in this section.

    a. Electronic Submission of Applications

    Applications for grants under the NASNTI Program, CFDA number 84.031X, must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.

    We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under Exception to Electronic Submission Requirement.

    You may access the electronic grant application for the NASNTI Program at www.Grants.gov. You must search for the downloadable application package for this competition by the CFDA number. Do not include the CFDA number's alpha suffix in your search (e.g., search for 84.031, not 84.031X).

    Please note the following:

    • When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.

    • Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.

    • The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.

    • You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at www.G5.gov.

    • You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.

    • You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.

    • You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.

    • Your electronic application must comply with any page-limit requirements described in this notice.

    • After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).

    • We may request that you provide us original signatures on forms at a later date.

    Application Deadline Date Extension in Case of Technical Issues With the Grants.gov System: If you are experiencing problems submitting your application through Grants.gov, please contact the Grants.gov Support Desk, toll free, at 1-800-518-4726. You must obtain a Grants.gov Support Desk Case Number and must keep a record of it.

    If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.

    If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact one of the people listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice and provide an explanation of the technical problem you experienced with Grants.gov, along with the Grants.gov Support Desk Case Number. We will accept your application if we can confirm that a technical problem occurred with the Grants.gov system and that that problem affected your ability to submit your application by 4:30:00 p.m., Washington, DC time, on the application deadline date. The Department will contact you after a determination is made on whether your application will be accepted.

    Note:

    The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.

    Exception to Electronic Submission Requirement: You qualify for an exception to the electronic submission requirement, and may submit your application in paper format, if you are unable to submit an application through the Grants.gov system because—

    • You do not have access to the Internet; or

    • You do not have the capacity to upload large documents to the Grants.gov system;

    and

    • No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.

    If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.

    Address and mail or fax your statement to: Bora Mpinja, U.S. Department of Education, 1990 K Street NW., Room 6023, Washington, DC 20006-8513. FAX: (202) 502-7681.

    Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.

    b. Submission of Paper Applications by Mail

    If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address:

    U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.031X), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260

    You must show proof of mailing consisting of one of the following:

    (1) A legibly dated U.S. Postal Service postmark.

    (2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.

    (3) A dated shipping label, invoice, or receipt from a commercial carrier.

    (4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.

    If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:

    (1) A private metered postmark.

    (2) A mail receipt that is not dated by the U.S. Postal Service.

    If your application is postmarked after the application deadline date, we will not consider your application.

    Note:

    The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.

    c. Submission of Paper Applications by Hand Delivery.

    If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:

    U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.031X), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260

    The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.

    Note for Mail or Hand Delivery of Paper Applications:

    If you mail or hand deliver your application to the Department—

    (1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and

    (2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.

    V. Application Review Information

    1. Selection Criteria: The following selection criteria for this program are from 34 CFR 75.210. We will award up to 100 points to an application under the selection criteria; the total possible points for each selection criterion are noted in parentheses.

    a. Need for project. (Maximum 20 points) The Secretary considers the need for the proposed project. In determining the need for the proposed project, the Secretary considers:

    1. The magnitude of the need for the services to be provided or the activities to be carried out by the proposed project. (10 points)

    2. The extent to which the proposed project will focus on serving or otherwise addressing the needs of disadvantaged individuals. (5 points)

    3. The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses. (5 points)

    b. Quality of the project design. (Maximum 25 points) The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers:

    1. The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable. (10 points)

    2. The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs. (5 points)

    3. The extent to which the proposed project is supported by strong theory (as defined in this notice). (10 points)

    c. Quality of project services. (Maximum 10 points) The Secretary considers the quality of the services to be provided by the proposed project. In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. In addition, the Secretary considers:

    1. The extent to which the services to be provided by the proposed project are appropriate to the needs of the intended recipients or beneficiaries of those services. (5 points)

    2. The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice. (5 points)

    d. Quality of project personnel. (Maximum 10 points) The Secretary considers the quality of the personnel who will carry out the proposed project. In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.

    In addition, the Secretary considers:

    1. The qualifications, including relevant training and experience, of the project director or principal investigator. (5 points)

    2. The qualifications, including relevant training and experience, of key project personnel. (5 points)

    e. Adequacy of resources. (Maximum 5 points) The Secretary considers the adequacy of resources for the proposed project. In determining the adequacy of resources for the proposed project, the Secretary considers:

    1. The extent to which the budget is adequate to support the proposed project. (3 points)

    2. The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project. (2 points)

    f. Quality of the management plan. (Maximum 15 points) The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers:

    1. The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (10 points)

    2. The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project. (2.5 points)

    3. The adequacy of mechanisms for ensuring high-quality products and services from the proposed project. (2.5 points)

    g. Quality of the project evaluation. (Maximum 15 points) The Secretary considers the quality of the evaluation to be conducted of the proposed project. In determining the quality of the evaluation, the Secretary considers:

    1. The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project. (5 points)

    2. The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible. (5 points)

    3. The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes. (5 points)

    2. Review and Selection Process: We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    Awards will be made in rank order according to the average score received from a panel of three non-Federal reviewers.

    3. Tie-breaker. In tie-breaking situations, we award one additional point to an application from an IHE that has an endowment fund of which the current market value, per FTE enrolled student, is less than the average current market value of the endowment funds, per FTE enrolled student, at comparable institutions that offer similar instruction. We also award one additional point to an application from an IHE that has expenditures for library materials per FTE enrolled student that are less than the average expenditures for library materials per FTE enrolled student at comparable institutions that offer similar instruction. We also award one additional point to an application from an IHE that proposes to carry out one or more of the following activities—

    (1) Faculty development;

    (2) Funds and administrative management;

    (3) Development and improvement of academic programs;

    (4) Acquisition of equipment for use in strengthening management and academic programs;

    (5) Joint use of facilities; and

    (6) Student services.

    For the purpose of these funding considerations, we use 2012-2013 data. If a tie remains after applying the tie-breaker mechanism above, priority will be given to applications from IHEs that have the lowest endowment values per FTE enrolled student.

    4. Special Conditions: Under 2 CFR 3474.10, the Secretary may impose special conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We may notify you informally, also.

    If your application is not evaluated or not selected for funding, we notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Reporting: (a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    4. Performance Measures: The Secretary has established the following key performance measures for assessing the effectiveness of the NASNTI Program:

    a. The percentage change, over the five-year period, in the number of full-time degree-seeking undergraduates enrolled at NASNTIs (Note: This is a long-term measure that will be used to periodically gauge performance);

    b. The percentage of first-time, full-time degree-seeking undergraduate students at two-year NASNTIs who were in their first year of postsecondary enrollment in the previous year and are enrolled in the current year at the same NASNTI;

    c. The percentage of first-time, full-time degree-seeking undergraduate students enrolled at four-year NASNTIs who graduate within six years of enrollment; and

    d. The percentage of first-time, full-time degree-seeking undergraduate students enrolled at two-year NASNTIs who graduate within three years of enrollment.

    5. Continuation Awards: In making a continuation award under 34 CFR 75.253, the Secretary considers, among other things: whether a grantee has made substantial progress in achieving the goals and objectives of the project; whether the grantee has expended funds in a manner that is consistent with its approved application and budget; and, if the Secretary has established performance measurement requirements, the performance targets in the grantee's approved application. In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    VII. Agency Contacts FOR FURTHER INFORMATION CONTACT:

    Bora Mpinja or Don Crews, U.S. Department of Education, 1990 K Street NW., 6th floor, Washington, DC 20006-8513. You may contact these individuals at the following email addresses or telephone numbers: [email protected]; (202) 502-7629, [email protected]; (202) 502-7574.

    If you use a TDD or a TTY, call the FRS, toll free, at 1-800-877-8339.

    Applicants should periodically check the Department's Web site for the title III, part A programs for further information. The address is: www.ed.gov/programs/nasnti/index.html.

    VIII. Other Information

    Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to either of the program contacts listed under FOR FURTHER INFORMATION CONTACT in section VII of this notice.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Delegation of Authority: The Secretary of Education has delegated authority to Jamienne S. Studley, Deputy Under Secretary, to perform the functions and duties of the Assistant Secretary for Postsecondary Education.

    Dated: May 29, 2015. Jamienne S. Studley, Deputy Under Secretary.
    [FR Doc. 2015-13480 Filed 6-2-15; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Catalog of Federal Domestic Assistance Number: 84.220A, 84.229A, 84.015A, and 84.016A] Authorization of Subgrants AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    Pursuant to the Education Department General Administrative Regulations, this notice authorizes institutions of higher education and consortia of institutions of higher education that are grant recipients under the Centers for International Business Education (CIBE) Program (CFDA 84.220A), Language Resource Centers (LRC) Program (CFDA 84.229A), National Resource Centers (NRC) Program (CFDA 84.015A), and the Undergraduate International Studies and Foreign Language (UISFL) Program (CFDA 84.016A) to make subgrants, subject to the limitations described in this notice. The subgrants must support project activities, including, but not limited to, the development of international business training programs, the development of area studies, international studies, and world language courses, teacher training workshops, the dissemination of instructional materials, faculty development opportunities, and outreach.

    DATES:

    Effective: June 3, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Cheryl E. Gibbs, U.S. Department of Education, 1990 K Street NW., Room 6087, Washington, DC 20006. Telephone: (202) 502-7634 or by email: [email protected]

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Purpose of Programs: Through Title VI, Part A and Part B of the Higher Education Act of 1965, as amended (HEA), eligible institutions of higher education or consortia of institutions of higher education receive funding to implement projects to strengthen institutional and national capacity in area studies, international studies, world languages, and the international context in which business is transacted. Institutions design and implement projects to meet the goal of producing graduates and trained personnel with knowledge and expertise in area and international studies, world languages, and international business.

    Parts A and B of Title VI of the HEA do not authorize grantees to make subgrants. Through this notice, pursuant to 34 CFR 75.708(b), we authorize grantees under the CIBE, NRC, LRC, and UISFL programs to make subgrants under certain circumstances.

    Program Authority: 20 U.S.C. 1122, 1123, 1124, 1130-1, and 1132-1137.

    Applicable Regulations: (a) The Education Department General Administrative Regulations 34 CFR parts 75, 77, 79, 82, 86, 97, 98, 99. (b) The OMB Guidelines to Agencies on Government wide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485, and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended in 2 CFR part 3474. (c) The International Education Programs—General Provisions in 34 CFR part 655. (d) The NRC Program regulations in 34 CFR part 656. (e) The LRC Program regulations in 34 CFR part 658. (f) The UISFL Program regulations in 34 CFR part 669.

    Eligible Entities for Subgrants: Eligible entities for subgrants are the non-Federal entities with whom the HEA, Title VI grantee institutions are in collaboration with to conduct the activities in the Title VI funded applications. The non-Federal entities or subrecipients include, but are not limited to, community colleges, Minority-Serving Institutions, local educational agencies, State educational agencies, school districts, and elementary, middle, or secondary schools. An individual at a non-Federal entity who receives a benefit from the CIBE, LRC, NRC or UISFL program does not qualify as an eligible subrecipient.

    Discussion: International and Foreign Language Education (IFLE), Office of Postsecondary Education authorizes grantees to make subgrants to support a more efficient, effective, and seamless delivery of international education activities to non-Federal entities. These include activities to meet the fiscal year 2014 competitive preference priorities through which grantees establish partnerships with community colleges, Minority-Serving Institutions, and teacher education programs, in addition to the other activities identified in the HEA and program regulations. The current absence of subgranting authority limits the extent to which the program grantees and non-Federal entities can collaborate to conduct the activities described in funded applications.

    Requirements: Grantees in the CIBE, NRC, LRC, and UISFL programs may make subgrants only to directly carry out project activities described in their applications. Consistent with 34 CFR 75.708(d), grantees must ensure that subgrants are awarded on the basis of the approved budget that is consistent with the grantee's approved application and all applicable Federal statutory, regulatory, and other requirements. Grantees under these programs must ensure that every subgrant includes any conditions required by Federal statutes and executive orders and their implementing regulations. Grantees must ensure that subgrantees are aware of the requirements imposed upon them by Federal statutes and regulations, including the Federal anti-discrimination laws in 34 CFR 75.500 and enforced by the Department.

    Note:

    This notice does not solicit applications.

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Delegation of Authority: The Secretary of Education has delegated authority to Jamienne S. Studley, Deputy Under Secretary, to perform the functions and duties of the Assistant Secretary for Postsecondary Education.

    Dated: May 29, 2015. Jamienne S. Studley, Deputy Under Secretary.
    [FR Doc. 2015-13481 Filed 6-2-15; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2015-0022 FRL-9928-24] Pesticide Product Registration; Receipt of Applications for New Uses; Correction and Reopening of Comment Period AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; correction and reopening of comment period.

    SUMMARY:

    EPA issued a notice in the Federal Register of April 15, 2015, concerning Pesticide Product Registration; Receipt of Applications for New Uses. The notice inadvertently identified the applications listed as being new active ingredients rather than new uses. This document corrects that error and also reopens the comment period for an additional 30 days. EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.

    DATES:

    Comments, identified by the docket identification (ID) listed in the body of this document, must be received on or before July 6, 2015.

    ADDRESSES:

    Follow the detailed instructions as provided under ADDRESSES in the Federal Register document of April 15, 2015 (80 FR 20223) (FRL-9924-89).

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

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

    The Agency included in the April 15, 2015 Federal Register notice a list of those who may be potentially affected by this action.

    B. How can I get copies of this document and other related information?

    The dockets for these actions, identified by docket identification (ID) numbers EPA-HQ-OPP-2015-0180 for Cyprodinil; EPA-HQ-OPP-2015-0014 for Mefenoxam; EPA-HQ-OPP-2015-0179 for Flutriafol; EPA-HQ-OPP-2014-0922 for Zoxamide; and EPA-HQ-OPP-2014-0232 for Novaluron, are available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 204600-0001. The public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, except legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    C. Why is the comment period being reopened?

    This document reopens the public comment period for the Pesticide Product Registration; Receipt of Applications for New Uses notice, which was published in the Federal Register of April 15, 2015. EPA is hereby reopening the comment period 30 days because EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the provision of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications.

    II. What does this correction do?

    FR Doc. 2015-08478 published in the Federal Register of April 15, 2015 (80 FR 20222) (FRL-9924-89) is corrected to read as follows:

    1. On page 20222, third column, under the document entitled “Pesticide Product Registration; Receipt of Applications for New Uses”, under the heading SUMMARY, the first paragraph, third line, correct “active ingredients” to read “new uses”.

    2. On page 20223, first column, 7 lines from the bottom of the page, correct “active ingredients” to read “new uses”.

    Authority:

    7 U.S.C. 136 et seq.

    Dated: May 22, 2015. Daniel J. Rosenblatt, Director, Registration Division, Office of Pesticide Programs.
    [FR Doc. 2015-13423 Filed 6-2-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2009-1017; FRL-9926-88] Product Cancellation Order for Certain Pesticide Registrations AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    This notice announces EPA's order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Table 1 of Unit III., pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Any distribution, sale, or use of the products subject to this cancellation order is permitted only in accordance with the terms of this order, including any existing stocks provisions.

    DATES:

    The cancellations are effective June 3, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Nevola, Pesticide Re-Evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 308-8037; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.

    B. How can I get copies of this document and other related information?

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2009-1017, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    II. What is the agency's authority for taking this action?

    Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the Federal Register. Thereafter, following the public comment period, the EPA Administrator may approve such a request.

    III. What action is the agency taking?

    This notice announces the cancellation, as requested by registrants, of products registered under FIFRA section 3 (7 U.S.C. 136a). These registrations are listed in sequence by registration number in Table 1 of this unit.

    Table 1—Product Cancellations EPA Registration No. Product name Chemical name 000279-09556 Intruder Residual Cylinder with Cyfluthrin Piperonyl butoxide, Pyrethrins, and Cyfluthrin. 000769-00881 Pratt 25-5 ULV Mosquito Adulticide Concentrate Pyrethrins and Piperonyl butoxide. 002693-00214 Micron Extra P-Blue Tolylfluanid and Cuprous oxide. 002693-00215 Ultra P-Blue Cuprous oxide and Tolylfluanid. 002724-00779 Permethrin Plus Home and Carpet Spray Permethrin, MGK 264, and Pyriproxyfen. 004787-00043 Malathion Technical Malathion. 004787-00046 Atrapa 8E Malathion. 005382-00046 Chlorite Plus CD-2 Sodium chlorite. 005481-00350 Metam Sodium Metam sodium. 005481-00418 Metam Sodium Soil Fumigant For All Crops Metam sodium. 005481-00420 AMVAC Metam Metam sodium. 005481-00446 Metacide 42 Metam sodium. 007969-00081 Pyramin DF Herbicide Pyrazon. 007969-00108 Pyramin Super Herbicide Pyrazon. 010088-00097 Insect Repellent Towel MGK 264, MGK 326, and Diethyl toluamide. 010163-00174 Fireban Fire Ant Insecticide Phosmet. 010163-00224 Ambush 0.5% Bait Permethrin. 011603-00045 Nitrapyrin Technical Nitrapyrin. 021164-00003 DURA KLOR Sodium chlorite. 021164-00005 AKTA KLOR 80 Sodium chlorite. 035559-00002 Diesel STA-BIL 1,3,2-Dioxaborinane, 2,2'-((1-methyl-1,3-propanediyl) bis(oxy))bis(4-methyl- and 1,3,2-Dioxaborinane, 2,2'-oxybis(4,4,6-trimethyl-. 042750-00259 Glufosinate-Ammonium TGAI Glufosinate-Ammonium. 047158-00002 Synergy 201 Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2-ethanediyl (dimethylimino)-1,2-ethanediyl dichloride). 059639-00028 Orthene Tree and Ornamental Spray Acephate. 059639-00086 Orthene 90 WSP Acephate. 059639-00089 Orthene 75 WSP (Insecticide in a Water Soluble Bag). Acephate. 062190-00028 Chemonite Part B Cuprous oxide. 065217-00001 Biobor JF 1,3,2-Dioxaborinane, 2,2'-((1-methyl-1,3-propanediyl) bis(oxy))bis(4-methyl- and 1,3,2-Dioxaborinane, 2,2'-oxybis(4,4,6-trimethyl-. 066222-00108 Bromoxynil and Atrazine Herbicide Atrazine and Bromoxynil octanoate. 066222-00119 Bromoxynil 2EC Herbicide Bromoxynil octanoate. 066222-00120 Bromoxynil and MCPA Herbicide MCPA, 2-ethylhexyl ester and Bromoxynil octanoate. 069361-00029 Pendim Weed and Feed Pendimethalin. 069361-00030 Pendimethalin Technical Pendimethalin. 069361-00031 Pendim 3.3 EC Herbicide Pendimethalin. 069361-00032 Pendim H2O Herbicide Pendimethalin. 069461-00002 Revablue Poly(oxy-1,2-ethanediyl(dimethylimino)-1,2-ethanediyl (dimethylimino)-1,2-ethanediyl dichloride). 071368-00070 Bromoxynil Technical Bromoxynil. 071368-00071 Bromox Octanoic Acid Technical Bromoxynil octanoate. 071995-00003 Kleeraway Grass & Weed Killer 2 Sodium acifluorfen and Glyphosate-isopropylammonium. 073801-00001 Deltamethrin Technical Deltamethrin. 073801-00003 Sulfentrazone Technical Sulfentrazone. 073801-00004 Deltamethrin 4.75% SC Deltamethrin. 089118-00001 VCP-01 10WG Bifenthrin. CA-090010 Ethrel Brand Ethephon Plant Regulator Ethephon. HI-840004 AMCHEM Ethrel Pineapple Growth Regulator Ethephon. MA-090002 B-CAP 35 Antimicrobial Agent Hydrogen peroxide. PA-080004 B-CAP 50 Antimicrobial Agent Hydrogen peroxide.

    Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1 of this unit.

    Table 2—Registrants of Cancelled Products EPA company No. Company name and address 279 FMC Corp. Agricultural Products Group, 1735 Market Street, RM 1978, Philadelphia, PA 19103. 769 Value Gardens Supply, LLC, Agent: AllPro Vector Group, 640 Griswold Street, Suite 200, Northville, MI 48167. 2693 AkzoNobel, Agent: International Paint, LLC, 2270 Morris Ave., Union, NJ 07083. 2724 Wellmark International, 1501 E. Woodfield Road, Suite 200 West, Schaumburg, IL 60173. 4787 Cheminova A/S, Agent: Cheminova Inc., 1600 Wilson Blvd., Suite 700, Arlington, VA 22209. 5382, 21164 Basic Chemicals Company, LLC, 5005 LBJ Freeway, Dallas, TX 75244. 5481 AMVAC Chemical Corporation, 4695 MacArthur Court, Suite 1200, Newport Beach, CA 92660-1706. 7969 BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709-3528. 10088 Athea Laboratories Inc., P.O. Box 240014, Milwaukee, WI 53224. 10163 Gowan Company, P.O. Box 5569, Yuma, AZ 85366. 11603 ADAMA, Agent: MANA, Inc., 3120 Highwoods Blvd, Suite 100, Raleigh, NC 27604. 35559 Gold Eagle Co., Agent: Delta Analytical Corp., 12510 Prosperity Drive, Suite 160, Silver Spring, MD 20904. 42750 Albaugh, LLC, P.O. Box 2127, Valdosta, GA 31604-2127. 47158 Industrial Water Consulting, Inc., P.O. Box 36238, Indianapolis, IN 46236. 59639 Valent U.S.A. Corporation, 1600 Riviera Avenue, Suite 200, Walnut Creek, CA 94596. 62190 Arch Wood Protection, Inc., 360 Interstate North Parkway, Suite 450, Atlanta, GA 30339. 65217 Hammonds Fuel Additives, Inc., Agent: Delta Analytical Corp., 12510 Prosperity Drive, Suite 160, Silver Spring, MD 20904. 66222 Makhteshim Agan Of North America, Inc., 3120 Highwoods Blvd., Suite 100, Raleigh, NC 27604. 69361 Repar Corporation, Agent: Mandava Associates, LLC, 1050 Conn. Ave. NW., Suite 1000, Washington, DC 20036. 69461 Laboratoire Pareva, Agent: Technology Sciences Group Inc., 1150 18th Street NW., Suite 1000, Washington, DC 20036. 71368 Nufarm Inc., Agent: Nufarm Americas, Inc., 4020 Aerial Center Parkway, Suite 101, Morrisville, NC 27560. 71995 Monsanto Company, 1300 I Street NW., Suite 450 East, Washington, DC 20005. 73801 Tagos Chemicals India, LTD., Agent: Biologic, Inc., 115 Obtuse Hill Road, Brookfield, CT 06804. 89118 Vive CorpProtection, Inc., Agent: OMC Ag Consulting, 828 Tanglewood Ln., East Lansing, MI 48823. CA-090010, HI-840004 Bayer CropScience, LP, 2 T.W. Alexander Drive, P.O. Box 12014, Research Triangle Park, NC 27709. MA-090002, PA-080004 PeroxyChem, LLC, 2005 Market Street, Suite 3200, Philadelphia, PA 19103.

    This cancellation order follows a notice of receipt of voluntary cancellation requests received from the registrants that issued in the Federal Register of March 12, 2015 (80 FR 12996) (FRL-9923-27). In the March 2015 document, EPA indicated that it would issue an order implementing the cancellations, unless the Agency received substantive comments within the 30-day comment period that would merit its further review of these requests, or unless the registrants withdrew their requests.

    IV. Summary of Public Comments Received and Agency Response to Comments

    The comment period closed on April 13, 2015. EPA received three comments. The comments agreed with the product cancellations. For this reason, the Agency does not believe that the comments submitted during the comment period merit further review or a denial of the requests for voluntary cancellation.

    Further, the registrants did not withdraw their requests.

    V. Cancellation Order

    Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)), EPA hereby approves the requested cancellations of the registrations identified in Table 1 of Unit III. Accordingly, the Agency hereby orders that the product registrations identified in Table 1 of Unit III. are canceled. The effective date of the cancellations that are the subject of this order is June 3, 2015. Any distribution, sale, or use of existing stocks of the products identified in Table 1 of Unit III. in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI. will be a violation of FIFRA.

    VI. Provisions for Disposition of Existing Stocks

    Existing stocks are those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the cancellation action. The existing stocks provisions for the products subject to this order are as follows.

    A. For Products (069361-00030, 073801-00003, and 089118-00001)

    The registrants have indicated to the Agency via written response that there are no existing stocks because no production has ever occurred. Therefore, no existing stocks date is necessary. Registrants are prohibited from selling or distributing the existing stocks of products listed in Table 1 of Unit III., except for export consistent with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal. In addition, because no production has ever occurred, persons other than the registrants are prohibited from selling, distributing, or using the existing stocks.

    B. For the Product (010163-00174)

    The registrant has indicated to the Agency via written response that they will not sell or distribute any existing stocks after December 31, 2014, and as of that date will no longer have any current stock. Therefore, no existing stocks date for the registrant is necessary. The registrant is prohibited from selling or distributing existing stocks of the product listed in Table 1 of Unit III., except for export consistent with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal. Persons other than the registrant may sell, distribute, or use the existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled product.

    C. For Products (059639-00028, 059639-00086, and 059639-00089)

    Since the notice in the Federal Register of March 12, 2015 (80 FR 12996) (FRL-9923-27), EPA received clarification from the registrant which indicates that the manufacture and distribution for these products ended about 6 to 7 years ago. Therefore, no existing stocks date is necessary for the registrant. The registrant is prohibited from selling or distributing the existing stocks of products listed in Table 1 of Unit III., except for export consistent with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal. In addition, because 6 to 7 years has passed, the Agency believes that existing stocks have been exhausted and no existing stocks date is necessary for persons other than the registrant. Persons other than the registrant are prohibited from selling, distributing, or using the existing stocks.

    D. For All Other Products Identified in Table 1 of Unit III

    The registrants may continue to sell and distribute existing stocks of products listed in Table 1 of Unit III. until June 2, 2016, which is 1 year after the publication of this Cancellation Order in the Federal Register. Thereafter, the registrants are prohibited from selling or distributing products listed in Table 1 of Unit III. except for export in accordance with FIFRA section 17 (7 U.S.C. 136o), or proper disposal. Persons other than the registrants may sell, distribute, or use existing stocks of products listed in Table 1 of Unit III. until existing stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products.

    Authority:

    7 U.S.C. 136 et seq.

    Dated: May 14, 2015. Richard P. Keigwin, Jr., Director, Pesticide Re-Evaluation Division, Office of Pesticide Programs.
    [FR Doc. 2015-13513 Filed 6-2-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL—9928-70-OAR] Alternative Method for Calculating Off-Cycle Credits Under the Light-Duty Vehicle Greenhouse Gas Emissions Program: Applications From Fiat Chrysler Automobiles, Ford Motor Company, and General Motors Corporation AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA) is requesting comment on applications from Fiat Chrysler Automobiles LLC (“FCA”), Ford Motor Company (Ford) and General Motors Corporation (GM) for off-cycle carbon dioxide (CO2) credits under EPA's light-duty vehicle greenhouse gas emissions standards. “Off-cycle” emission reductions can be achieved by employing technologies that result in real-world benefits, but where that benefit is not adequately or entirely captured on the test procedures used by manufacturers to demonstrate compliance with emission standards. EPA's light-duty vehicle greenhouse gas program acknowledges these benefits by giving automobile manufacturers several options for generating “off-cycle” carbon dioxide (CO2) credits. Under the regulations, a manufacturer may apply for CO2 credits for technologies that result in off-cycle benefits. In these cases, a manufacturer must provide EPA with a proposed methodology for determining the real-world off-cycle benefit. FCA and Ford have submitted applications that describe methodologies for determining off-cycle credits from high efficiency exterior lighting, solar reflective glass/glazing, solar reflective paint, and active seat ventilation. Ford's application also proposes methodologies for determining the off-cycle benefits from active aerodynamic improvements (grill shutters), active transmission warm-up, active engine warm-up technologies, and engine idle stop-start. GM's application proposes a methodology to determine the real-world benefits of an air conditioning compressor with variable crankcase suction valve technology. Pursuant to applicable regulations, EPA is making descriptions of the manufacturers' off-cycle credit calculation methodologies available for public comment.