Federal Register Vol. 80, No.118,

Federal Register Volume 80, Issue 118 (June 19, 2015)

Page Range35177-35564
FR Document

80_FR_118
Current View
Page and SubjectPDF
80 FR 35306 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
80 FR 35195 - Addition of Certain Persons to the Entity ListPDF
80 FR 35357 - Sunshine Act MeetingPDF
80 FR 35358 - Sunshine Act; Notice of MeetingPDF
80 FR 35330 - President's Council of Advisors on Science and Technology MeetingPDF
80 FR 35421 - In the Matter of Enterologics, Inc., Midas Medici Group Holdings, Inc., and SEFE, Inc., Order of Suspension of TradingPDF
80 FR 35417 - In The Matter of Revolutionary Concepts, Inc.; Order of Suspension of TradingPDF
80 FR 35421 - In the Matter of Neologic Animation Inc., Order of Suspension of TradingPDF
80 FR 35422 - In the Matter of Oraco Resources, Inc., SaviCorp (a/k/a SaVi Media Group, Inc.), Smoky Market Foods, Inc., Soltera Mining Corp., and Wolverine Holding Corp. (a/k/a Mobility Plus Medical Equipment, Inc.); Order of Suspension of TradingPDF
80 FR 35405 - Information Collection Request Submission for OMB ReviewPDF
80 FR 35188 - Orders: Reporting by Regulated Entities of Stress Testing Results as of September 30, 2014PDF
80 FR 35299 - Notice of Funds Availability (NOFA) for the Rural Microentrepreneur Assistance Program for Fiscal Year 2015PDF
80 FR 35323 - Application for New Awards; National Center for Information and Technical Support for Postsecondary Students With DisabilitiesPDF
80 FR 35241 - Drawbridge Operation Regulation; Niantic River, Niantic, CTPDF
80 FR 35423 - Oklahoma Disaster Number OK-00092PDF
80 FR 35244 - Safety Zone; Bridgefest Regatta Fireworks, Portage Canal, Hancock, MIPDF
80 FR 35423 - Oklahoma Disaster Number OK-00081PDF
80 FR 35239 - Special Local Regulations; Grand National Drag Boat Races, Atlantic Intracoastal Waterway; Bucksport, SCPDF
80 FR 35281 - Special Local Regulations for Marine Events, Manasquan River; Seaside Park, New JerseyPDF
80 FR 35236 - Special Local Regulations for Marine Events, Atlantic Ocean; Atlantic City, New JerseyPDF
80 FR 35350 - Use of High Throughput Assays and Computational Tools; Endocrine Disruptor Screening Program; Notice of Availability and Opportunity for CommentPDF
80 FR 35348 - Pesticide Product Registration; Receipt of Applications for New UsesPDF
80 FR 35355 - Proposed Information Collection Request; Comment Request; Trade Secret Claim Submissions under the Emergency Planning and Community Right-to-Know Act.PDF
80 FR 35347 - Proposed Information Collection Request; Comment Request; Emergency Planning and Release Notification Requirements under the Emergency Planning and Community Right-to-Know Act.PDF
80 FR 35295 - Approval and Promulgation of State Implementation Plan Revisions; Rules, General Requirements and Test Methods; UtahPDF
80 FR 35373 - Office of Direct Service and Contracting Tribes; National Indian Health Outreach and Education-Health Reform Funding Opportunity Announcement Type: New Limited CompetitionPDF
80 FR 35373 - Dental Preventive and Clinical Support Centers Program; CorrectionPDF
80 FR 35356 - Environmental Impact Statements; Notice of AvailabilityPDF
80 FR 35405 - Hispanic Council on Federal EmploymentPDF
80 FR 35393 - Deepwater Horizon Oil Spill; Draft Phase IV Early Restoration Plan and Environmental AssessmentsPDF
80 FR 35299 - Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560PDF
80 FR 35304 - Silicomanganese From Australia: Postponement of Preliminary Determination of Antidumping Duty InvestigationPDF
80 FR 35303 - Grant of Authority; Establishment of a Foreign-Trade Zone Under the Alternative Site Framework Limon, ColoradoPDF
80 FR 35303 - Foreign-Trade Zone (FTZ) 27-Boston, Massachusetts, Notification of Proposed Production Activity, Claremont Flock, (Textile Flock), Leominster, MassachusettsPDF
80 FR 35302 - Notification of Proposed Production Activity, BMW Manufacturing Co., LLC, Subzone 38A, (Motor Vehicles), Spartanburg, South CarolinaPDF
80 FR 35207 - Amendments for Small and Additional Issues Exemptions Under the Securities Act (Regulation A)PDF
80 FR 35387 - Texas; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
80 FR 35387 - Oklahoma; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
80 FR 35388 - Oklahoma; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
80 FR 35363 - Medicare Program; Request for an Exception to the Prohibition on Expansion of Facility Capacity Under the Hospital Ownership and Rural Provider Exceptions to the Physician Self-Referral ProhibitionPDF
80 FR 35331 - Environmental Impact Statement for the Recapitalization of Infrastructure Supporting Naval Spent Nuclear Fuel Handling at the Idaho National LaboratoryPDF
80 FR 35386 - Information Collection Request to Office of Management and BudgetPDF
80 FR 35388 - Agency Information Collection Activities: Application for Action on an Approved Application or Petition, Form I-824; Revision of a Currently Approved Collection.PDF
80 FR 35403 - Adjustment of Cable Statutory License Royalty RatesPDF
80 FR 35317 - Fisheries of the South Atlantic; Southeast Data, Assessment and Review (SEDAR); Public MeetingPDF
80 FR 35304 - Fisheries of the South Atlantic; South Atlantic Fishery Management Council (SAFMC); Public MeetingsPDF
80 FR 35358 - Information Collection; Professional Employee Compensation PlanPDF
80 FR 35359 - Federal Acquisition Regulation; Information Collection; Integrity of Unit PricesPDF
80 FR 35364 - Medicare Program; Oncology Care Model: Request for Applications; Extension of the Submission Deadline for ApplicationsPDF
80 FR 35360 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
80 FR 35389 - Notice of Federal Advisory Committee Manufactured Housing Consensus Committee Structure and Design Subcommittee TeleconferencePDF
80 FR 35365 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 35362 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
80 FR 35372 - Announcement of Food and Drug Administration Demo Day for the 2014 Food and Drug Administration Food Safety Challenge; Public MeetingPDF
80 FR 35321 - Procurement List; Additions and DeletionsPDF
80 FR 35320 - Procurement List; Proposed AdditionsPDF
80 FR 35372 - Food Allergen Labeling Exemption Petitions and Notifications; Guidance for Industry; AvailabilityPDF
80 FR 35394 - Notice of Availability of the Draft Programmatic Environmental Impact Statement To Evaluate the Use of Herbicides on Public Lands Administered by the Bureau of Land ManagementPDF
80 FR 35318 - Practitioner Conduct and DisciplinePDF
80 FR 35318 - Submission for OMB Review; Comment Request; “Clearance for the Collection of Qualitative Feedback on Agency Service Delivery”PDF
80 FR 35302 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
80 FR 35334 - Columbia Gas Transmission, LLC; Notice of ApplicationPDF
80 FR 35336 - Idaho Irrigation District, New Sweden Irrigation District; Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study RequestsPDF
80 FR 35341 - Notice of Commission Staff AttendancePDF
80 FR 35346 - 87RL 8me LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 35345 - Notice of Effectiveness of Exempt Wholesale Generator StatusPDF
80 FR 35343 - Natural Gas Pipeline Company of America LLC; Notice of ApplicationPDF
80 FR 35345 - Comanche Trail Pipeline, LLC; Notice of ApplicationPDF
80 FR 35335 - Combined Notice of Filings #1PDF
80 FR 35343 - Combined Notice of Filings #2PDF
80 FR 35345 - Combined Notice of Filings #1PDF
80 FR 35335 - SPS of Oregon; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
80 FR 35340 - Mountain Village, CO; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
80 FR 35339 - Mountain Village, CO; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
80 FR 35337 - N.E.W. Hydro, Inc.; Notice of Application Accepted for Filing, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments, Recommendations, Terms and Conditions, and PrescriptionsPDF
80 FR 35342 - Notice of Commission Staff AttendancePDF
80 FR 35343 - West Chicago Battery Storage LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 35344 - Joliet Battery Storage LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 35346 - AZ721 LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 35342 - Dominion Carolina Gas Transmission, LLC; Notice of ApplicationPDF
80 FR 35253 - Hazardous Materials Safety Permit (HMSP) Program: Amendment to Enforcement PolicyPDF
80 FR 35356 - Agency Information Collection Activities: Comment RequestPDF
80 FR 35425 - Hours of Service of Drivers: California Farm Bureau Federation; Granting of Application for ExemptionPDF
80 FR 35306 - Endangered and Threatened Wildlife and Plants; Notice of 12-Month Finding on a Petition To List Bottlenose Dolphins in Fiordland, New Zealand as Threatened or Endangered Under the Endangered Species ActPDF
80 FR 35255 - Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2015PDF
80 FR 35195 - Pacific Halibut Fisheries; Revisions to Charter Halibut Fisheries Management in AlaskaPDF
80 FR 35357 - Agency Information Collection Activities: Comment RequestPDF
80 FR 35393 - Notice of Filing of Plats of Survey, New MexicoPDF
80 FR 35243 - Drawbridge Operation Regulation; Isle of Wight (Sinepuxent) Bay, Ocean City, MDPDF
80 FR 35423 - Agency Information Collection Activities: Comment RequestPDF
80 FR 35358 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies; CorrectionPDF
80 FR 35358 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 35370 - Agency Information Collection Activities; Proposed Collection; Comment Request; Early Food Safety Evaluation of New Non-Pesticidal Proteins Produced by New Plant Varieties Intended for Food UsePDF
80 FR 35367 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Survey on the Occurrence of Foodborne Illness Risk Factors in Selected Institutional Foodservice and Retail Food Stores Facility TypesPDF
80 FR 35366 - Size, Shape, and Other Physical Attributes of Generic Tablets and Capsules; Guidance for Industry; AvailabilityPDF
80 FR 35395 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Currently Approved Collection; National Crime Victimization Survey (NCVS)PDF
80 FR 35394 - Agency Information Collection Activities; Approval of a New Collection; Privacy Industry Feedback SurveyPDF
80 FR 35392 - Agency Information Collection Activities: Request for CommentsPDF
80 FR 35396 - Autoliv ASP, Inc., Autoliv Electronics Division, Production Operations Department, Including On-Site Leased Workers From Technical Needs, Lowell, Massachusetts; Aerotek, Working On-Site at Autoliv ASP, Inc., Autoliv Electronics Division, Production Operations Department, Lowell, Massachusetts; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 35399 - Rockwell Automation Shared Service Center Including On-Site Leased Workers From Allegis, Milwaukee, Wisconsin; Rockwell Automation-Anorad Financial Division, East Setauket, New York; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 35401 - Brayton International; A Subsidiary of Steelcase, Inc.; Including On-Site Leased Workers From Manpower Group, Experis, Bradley Personnel Inc., Graham Personnel Services, Aerotek, Workforce Unlimited, Experis, Impact Business Group, and Century Employer Organization LLC; High Point, North Carolina; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 35397 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment AssistancePDF
80 FR 35402 - Riverside Publishing Company, Technical Production Services Group, A Subsidiary of Houghton Mifflin Harcourt Publishing Company, Including On-Site Leased Workers From Zero Chaos, Apex Systems, and Pro Unlimited, Inc., Rolling Meadows, Illinois; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 35396 - Cambia Health Solutions, Inc., Claims Department and Membership Team, Portland, Oregon; Cambia Health Solutions, Inc., Claims Department and Membership Team, Lewiston, Idaho; Cambia Health Solutions, Inc., Claims Department and Sales Operations, Medford, Oregon; Cambia Health Solutions, Inc., Claims Department and Sales Operations, Salt Lake City, Utah; Cambia Health Solutions, Inc., Claims Department, Membership Team and Sales Operations, Seattle, Washington; Cambia Health Solutions, Inc., Claims Department and Membership Team, Tacoma, Washington; Cambia Health Solutions, Inc., Membership Team, Burlington, Oregon; Cambia Health Solutions, Inc., Sales Operations, Bend, Oregon; Cambia Health Solutions, Inc., Sales Operations, Boise, Idaho; Cambia Health Solutions, Inc., Sales Operations, Spokane, Washington; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 35322 - Availability of the Supplemental Draft Environmental Impact Statement for the Northern Integrated Supply Project, Larimer and Weld Counties, ColoradoPDF
80 FR 35401 - Microsemi Corporation, Including On-Site Leased Workers From Duran Hcp, Allentown, Pennsylvania, Microsemi Corporation, Including On-Site Leased Workers From Duran Human Capital, Superior Group, and Clearpath, San Jose, California; Notice of Revised Determination on ReconsiderationPDF
80 FR 35397 - Energizer; One Worker Reporting to the Westlake Facility Located in Marietta, Ohio; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 35399 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 35404 - Agency Information Collection Activities; Proposed CollectionPDF
80 FR 35416 - TCP Capital Corp., et al.; Notice of ApplicationPDF
80 FR 35407 - FFI Advisors, LLC, et al.; Notice of ApplicationPDF
80 FR 35406 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Update Regulatory Related ReferencesPDF
80 FR 35418 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Natural Gas Spot Contracts PoliciesPDF
80 FR 35391 - Proposed Information Collection; Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE)PDF
80 FR 35383 - National Human Genome Research Institute; Notice of Closed MeetingPDF
80 FR 35384 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
80 FR 35382 - National Eye Institute; Notice of Closed MeetingsPDF
80 FR 35382 - National Eye Institute; Notice of Closed MeetingPDF
80 FR 35383 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingsPDF
80 FR 35384 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 35384 - Center for Scientific Review Amended; Notice of MeetingPDF
80 FR 35383 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed MeetingPDF
80 FR 35385 - National Institute of Mental Health; Notice of Closed MeetingPDF
80 FR 35386 - National Center for Advancing Translational Sciences; Notice of Closed MeetingPDF
80 FR 35330 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; School Leadership Program (SLP) Annual Performance ReportPDF
80 FR 35329 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; The College Assistance Migrant Program (CAMP) Annual Performance Report (APR)PDF
80 FR 35357 - Agency Information Collection Activities: Final Collection; Comment RequestPDF
80 FR 35402 - OSHA Strategic Partnership Program (OSPP) for Worker Safety and HealthPDF
80 FR 35246 - Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to HerbicidePDF
80 FR 35192 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
80 FR 35260 - Airworthiness Directives; AlliedSignal Inc. and Rajay Inc. Oil Scavenge PumpsPDF
80 FR 35191 - Airworthiness Directives; Pratt & Whitney Division Turbofan EnginesPDF
80 FR 35260 - Airworthiness Directives; Pratt & Whitney Canada Corp. Turboshaft EnginesPDF
80 FR 35305 - Final NOAA Restoration Center Programmatic Environmental Impact StatementPDF
80 FR 35297 - Proposal To Mitigate Exposure to Bees From Acutely Toxic Pesticide Products; Extension of Comment PeriodPDF
80 FR 35262 - Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014PDF
80 FR 35349 - Agency Information Collection Activities; Proposed Renewal and Comment Request; TSCA Section 8(a) Preliminary Assessment Information Rule (PAIR)PDF
80 FR 35207 - Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014PDF
80 FR 35249 - Thiram; Pesticide TolerancePDF
80 FR 35220 - Partitions of Eligible Multiemployer PlansPDF
80 FR 35177 - National Organic Program: USDA Organic RegulationsPDF
80 FR 35390 - Federal Property Suitable as Facilities To Assist the HomelessPDF
80 FR 35424 - Air Traffic Procedures Advisory CommitteePDF
80 FR 35430 - Head Start Performance StandardsPDF
80 FR 35284 - Partial Approval and Disapproval of Air Quality State Implementation Plans (SIP); State of Nebraska; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality StandardPDF
80 FR 35178 - Control of Listeria monocytogenes in Ready-to-Eat Meat and Poultry ProductsPDF

Issue

80 118 Friday, June 19, 2015 Contents Agricultural Marketing Agricultural Marketing Service RULES National Organic Program: USDA Organic Regulations, 35177-35178 2015-14865 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Food Safety and Inspection Service

See

Forest Service

See

Rural Business-Cooperative Service

Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35360-35362 2015-15128 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35362-35363, 35365-35366 2015-15125 2015-15126 Medicare Programs: Oncology Care Model; Application Extension, 35364-35365 2015-15129 Request for an Exception, Prohibition on Expansion of Facility Capacity under the Hospital Ownership, etc., 35363-35364 2015-15141 Children Children and Families Administration PROPOSED RULES Head Start Performance Standards, 35430-35564 2015-14379 Coast Guard Coast Guard RULES Drawbridge Operations: Isle of Wight (Sinepuxent) Bay, Ocean City, MD, 35243-35244 2015-15082 Niantic River, Niantic, CT, 35241-35243 2015-15190 Safety Zones: Bridgefest Regatta Fireworks, Portage Canal, Hancock, MI, 35244-35246 2015-15188 Special Local Regulations: Grand National Drag Boat Races, Atlantic Intracoastal Waterway; Bucksport, SC, 35239-35241 2015-15186 Marine Events, Atlantic City, NJ, 35236-35239 2015-15184 PROPOSED RULES Special Local Regulations: Marine Events, Manasquan River; Seaside Park, NJ, 35281-35283 2015-15185 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35386-35387 2015-15139 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 35320-35322 2015-15121 2015-15122 Copyright Royalty Board Copyright Royalty Board NOTICES Adjustment of Cable Statutory License Royalty Rates, 35403-35404 2015-15137 Defense Department Defense Department See

Engineers Corps

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Acquisition Regulation; Integrity of Unit Prices, 35359-35360 2015-15131 Federal Acquisition Regulation; Professional Employee Compensation Plan, 35358-35359 2015-15132
Economic Development Economic Development Administration NOTICES Eligibility to Apply for Trade Adjustment Assistance; Petitions, 35302 2015-15113 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: College Assistance Migrant Program Annual Performance Report, 35329-35330 2015-15015 School Leadership Program Annual Performance Report, 35330 2015-15016 Application for New Awards: National Center for Information and Technical Support for Postsecondary Students with Disabilities, 35323-35329 2015-15191 Employment and Training Employment and Training Administration NOTICES Eligibility to Apply for Alternative Trade Adjustment Assistance: Microsemi Corp., et al., Allentown, PA and San Jose, CA, 35401-35402 2015-15053 Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance; Determinations, 35397-35399 2015-15066 Eligibility to Apply for Worker Adjustment Assistance; Amended Certifications: Autoliv ASP, Inc., et al., Lowell, MA, 35396 2015-15069 Brayton International, et al., High Point, NC, 35401 2015-15067 Cambia Health Solutions, Inc., et al., Portland, OR, et al., 35396-35397 2015-15060 Energizer, Marietta, OH, 35397 2015-15052 Riverside Publishing Co., et al., Rolling Meadows, IL, 35402 2015-15061 Rockwell Automation, et al., Milwaukee, WI and East Setauket, NY, 35399 2015-15068 Worker Adjustment Assistance Eligibility; Investigations, 35399-35400 2015-15051 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Environmental Impact Statements; Availability, etc.: Idaho National Laboratory; Recapitalization of Infrastructure Supporting Naval Spent Nuclear Fuel Handling, 35331-35334 2015-15140 Meetings: President's Council of Advisors on Science and Technology, 35330-35331 2015-15278
Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Northern Integrated Supply Project, Larimer and Weld Counties, CO, 35322-35323 2015-15055 Environmental Protection Environmental Protection Agency RULES Pesticide Tolerances: Thiram, 35249-35253 2015-14944 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Nebraska; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standard, 35284-35295 2015-14336 Utah -- General Requirements and Test Methods, 35295-35297 2015-15158 Mitigating Exposure to Bees from Acutely Toxic Pesticide Products; Extension of Comment Period, 35297-35298 2015-14950 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Emergency Planning and Release Notification Requirements under the Emergency Planning and Community Right-to-Know Act, 35347-35348 2015-15160 Trade Secret Claim Submissions under the Emergency Planning and Community Right-to-Know Act, 35355-35356 2015-15178 TSCA Section 8(a) Preliminary Assessment Information Rule, 35349-35350 2015-14946 Endocrine Disruptor Screening Program: Use of High Throughput Assays and Computational Tools, 35350-35355 2015-15182 Environmental Impact Statements; Availability, etc.; Weekly Receipts, 35356 2015-15154 Pesticide Product Registrations: Applications for New Uses, 35348-35349 2015-15180 Export Import Export-Import Bank NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35356-35357 2015-15012 2015-15084 2015-15089 Federal Accounting Federal Accounting Standards Advisory Board RULES Addition of Certain Persons to the Entity List, 35195 C1--2014--17196 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Fokker Services B.V. Airplanes, 35192-35195 2015-14994 Pratt and Whitney Division Turbofan Engines, 35191-35192 2015-14992 PROPOSED RULES Airworthiness Directives: AlliedSignal Inc. and Rajay Inc. Oil Scavenge Pumps, 35260 2015-14993 Pratt & Whitney Canada Corp. Turboshaft Engines, 35260-35262 2015-14986 NOTICES Meetings: Air Traffic Procedures Advisory Committee, 35424-35425 2015-14801 Federal Emergency Federal Emergency Management Agency NOTICES Major Disaster Declarations: Oklahoma; Amendment No. 2, 35387-35388 2015-15143 Oklahoma; Amendment No. 3, 35388 2015-15142 Texas; Amendment No. 2, 35387 2015-15144 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Columbia Gas Transmission, LLC, 35334-35335 2015-15111 Comanche Trail Pipeline, LLC, 35345-35346 2015-15104 Dominion Carolina Gas Transmission, LLC, 35342 2015-15092 N.E.W. Hydro, Inc., 35337-35339 2015-15097 Natural Gas Pipeline Co. of America, LLC, 35343-35344 2015-15105 Combined Filings, 35335, 35343, 35345 2015-15101 2015-15102 2015-15103 Exempt Wholesale Generator or Foreign Utility Company Status: Oak Grove Management Co. LLC, et al., 35345 2015-15106 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: 87RL 8me LLC, 35346 2015-15107 AZ721, LLC, 35346-35347 2015-15093 Joliet Battery Storage LLC, 35344-35345 2015-15094 West Chicago Battery Storage, LLC, 35343 2015-15095 License Applications: Idaho Irrigation District; New Sweden Irrigation District, 35336-35337 2015-15109 Qualifying Conduit Hydropower Facilities: Mountain Village, CO, 35339-35341 2015-15098 2015-15099 SPS of Oregon, 35335-35336 2015-15100 Staff Attendances, 35341-35342 2015-15096 2015-15108 Federal Housing Finance Agency Federal Housing Finance Agency RULES Orders: Reporting by Regulated Entities of Stress Testing Results, 35188-35191 2015-15194 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 35357-35358 2015-15326 Federal Motor Federal Motor Carrier Safety Administration RULES Hazardous Materials Safety Permit Program: Amendment to Enforcement Policy, 35253-35255 2015-15091 NOTICES Hours of Service of Drivers; Applications for Exemptions: California Farm Bureau Federation, 35425-35427 2015-15088 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 35358 2015-15079 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies; Corrections, 35358 2015-15080 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings; Sunshine Act, 35358 2015-15311 Fish Fish and Wildlife Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 35391-35392 2015-15035 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Early Food Safety Evaluation of New Non-Pesticidal Proteins Produced by New Plant Varieties Intended for Food Use, 35370-35372 2015-15078 Survey on the Occurrence of Foodborne Illness Risk Factors in Selected Institutional Foodservice and Retail Food Stores Facility Types, 35367-35370 2015-15077 Guidance for Industry and Staff: Size, Shape, and Other Physical Attributes of Generic Tablets and Capsules, 35366-35367 2015-15076 Guidance: Food Allergen Labeling Exemption Petitions and Notifications, 35372 2015-15119 Meetings: Demo Day for the 2014 Food and Drug Administration Food Safety Challenge, 35372-35373 2015-15124 Food Safety Food Safety and Inspection Service RULES Control of Listeria monocytogenes in Ready-to-Eat Meat and Poultry Products, 35178-35188 2015-13507 Foreign Trade Foreign-Trade Zones Board NOTICES Establishments under Alternative Site Frameworks: Limon, CO, 35303-35304 2015-15149 Proposed Production Activities: BMW Manufacturing Co., LLC, Subzone 38A, Spartanburg, SC, 35302-35303 2015-15147 Claremont Flock, Foreign-Trade Zone 27, Boston, MA, 35303 2015-15148 Forest Forest Service NOTICES Proposed Directive on Groundwater Resource Management; Withdrawal, 35299 2015-15151 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Acquisition Regulation; Integrity of Unit Prices, 35359-35360 2015-15131 Federal Acquisition Regulation; Professional Employee Compensation Plan, 35358-35359 2015-15132 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35392-35393 2015-15073 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Indian Health Service

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

Housing Housing and Urban Development Department NOTICES Federal Properties Suitable as Facilities to Assist the Homeless, 35390-35391 2015-14835 Meetings: Manufactured Housing Consensus Committee Structure and Design Subcommittee; Teleconferences, 35389 2015-15127 Indian Health Indian Health Service NOTICES Funding Availability: Dental Preventive and Clinical Support Centers Program; Correction, 35373 2015-15156 Office of Direct Service and Contracting Tribes; National Indian Health Outreach and Education, 35373-35382 2015-15157 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

NOTICES Environmental Impact Statements; Availability, etc.: Deepwater Horizon Oil Spill; Draft Phase IV Early Restoration Plan, 35393 2015-15152
Internal Revenue Internal Revenue Service RULES Suspension of Benefits under the Multiemployer Pension Reform Act of 2014, 35207-35220 2015-14945 PROPOSED RULES Suspension of Benefits under the Multiemployer Pension Reform Act of 2014, 35262-35280 2015-14948 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Silicomanganese from Australia, 35304 2015-15150 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Crime Victimization Survey, 35395-35396 2015-15075 Privacy Industry Feedback Survey, 35394-35395 2015-15074 Labor Department Labor Department See

Employment and Training Administration

See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Use of Herbicides on Public Lands, 35394 2015-15118 Plats of Survey: New Mexico, 35393-35394 2015-15083 Library Library of Congress See

Copyright Royalty Board

Merit Merit Systems Protection Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35404-35405 2015-15047 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Acquisition Regulation; Integrity of Unit Prices, 35359-35360 2015-15131 Federal Acquisition Regulation; Professional Employee Compensation Plan, 35358-35359 2015-15132 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 35384-35385 2015-15025 2015-15026 National Center for Advancing Translational Sciences, 35386 2015-15021 National Eye Institute, 35382-35383 2015-15028 2015-15029 National Human Genome Research Institute, 35383 2015-15031 National Institute of Allergy and Infectious Diseases, 35384 2015-15030 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 35383 2015-15023 2015-15024 National Institute of Diabetes and Digestive and Kidney Diseases, 35383-35384 2015-15027 National Institute of Mental Health, 35385 2015-15022 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Summer Flounder, Scup, and Black Sea Bass Fisheries; Recreational Management Measures; Fishing Year 2015, 35255-35259 2015-15086 Pacific Halibut Fisheries: Charter Halibut Fisheries Management in Alaska; Revisions, 35195-35207 2015-15085 NOTICES Endangered and Threatened Wildlife and Plants: Bottlenose Dolphins; Fiordland, NZ; Petition Finding, 35306-35317 2015-15087 Environmental Impact Statements; Availability, etc.: Final NOAA Restoration Center, 35305-35306 2015-14984 Meetings: Fisheries of the South Atlantic Southeast Data, Assessment and Review, 35317 2015-15136 Fisheries of the South Atlantic; South Atlantic Fishery Management Council, 35304-35305 2015-15135 Mid-Atlantic Fishery Management Council, 35306 C1--2015--13766 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: OSHA Strategic Partnership Program for Worker Safety and Health, 35402-35403 2015-15011 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Clearance for the Collection of Qualitative Feedback on Agency Service Delivery, 35318 2015-15116 Practitioner Conduct and Discipline, 35318-35320 2015-15117 Peace Peace Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35405 2015-15213 Pension Benefit Pension Benefit Guaranty Corporation RULES Partitions of Eligible Multiemployer Plans, 35220-35236 2015-14930 Personnel Personnel Management Office NOTICES Meetings: Hispanic Council on Federal Employment, 35405 2015-15153 Rural Business Rural Business-Cooperative Service NOTICES Funding Availability: Rural Microentrepreneur Assistance Program, 35299-35302 2015-15193 Securities Securities and Exchange Commission RULES Small and Additional Issues Exemptions under the Securities Act; Corrections, 35207 2015-15146 NOTICES Applications: FFI Advisors, LLC, et al., 35407-35416 2015-15045 TCP Capital Corp., et al., 35416-35417 2015-15046 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 35406-35407 2015-15044 ICE Clear Europe Ltd., 35418-35421 2015-15043 Trading Suspension Orders: Enterologics, Inc., Midas Medici Group Holdings, Inc., and SEFE, Inc., 35421-35422 2015-15229 Neologic Animation, Inc., 35421 2015-15223 Oraco Resources, Inc., et al., 35422-35423 2015-15221 Revolutionary Concepts, Inc., 35417-35418 2015-15224 Small Business Small Business Administration NOTICES Disaster Declarations: Oklahoma; Amendment 3, 35423 2015-15187 Oklahoma; Amendment 4, 35423 2015-15189 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 35423-35424 2015-15081 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

Treasury Treasury Department See

Internal Revenue Service

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Action on an Approved Application or Petition, 35388-35389 2015-15138 Veteran Affairs Veterans Affairs Department RULES Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide, 35246-35249 2015-14995 Separate Parts In This Issue Part II Health and Human Services Department, Children and Families Administration, 35430-35564 2015-14379 Reader Aids

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

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

80 118 Friday, June 19, 2015 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Document Number AMS-NOP-15-0009; NOP-15-01] National Organic Program: USDA Organic Regulations AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Notice of 2015 Sunset Review.

SUMMARY:

This document addresses the 2015 Sunset Review submitted to the Secretary of Agriculture (Secretary) through the Agricultural Marketing Service's (AMS) National Organic Program (NOP) by the National Organic Standards Board (NOSB) following the NOSB's May and October 2014 meetings. The 2015 Sunset Review pertains to the NOSB's review of the need for the continued allowance for seven substances on the U.S. Department of Agriculture's (USDA) National List of Allowed and Prohibited Substances (National List). Consistent with the NOSB's review, this publication provides notice on the renewal of three synthetic and two nonsynthetic substances on the National List, along with any restrictive annotations. For substances that have been renewed on the National List, this document completes the 2015 National List Sunset Process.

DATES:

This document is effective June 22, 2015.

FOR FURTHER INFORMATION CONTACT:

Requests for a copy of this document should be sent to Jennifer Tucker, Ph.D., Associate Deputy Administrator, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW., Room 2646-S., Ag Stop 0268, Washington, DC 20250-0268. Telephone: (202) 720-3252, email: [email protected] or by accessing the Web site at http://www.ams.usda.gov/nop.

SUPPLEMENTARY INFORMATION:

The National Organic Program (NOP) is authorized by the Organic Foods Protection Act (OFPA) of 1990, as amended (7 U.S.C. 6501—6522). The USDA Agricultural Marketing Service (AMS) administers the NOP. Final regulations implementing the NOP, also referred to as the USDA organic regulations, were published December 21, 2000 (65 FR 80548), and became effective on October 21, 2002. Through these regulations, the AMS oversees national standards for the production, handling, and labeling of organically produced agricultural products. Since becoming fully effective, the USDA organic regulations have been frequently amended, mostly for changes to the National List in 7 CFR 205.601-205.606.

This National List identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling. The OFPA and the USDA organic regulations, as indicated in § 205.105, specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural substance, and any nonsynthetic nonagricultural substance used in organic handling appear on the National List.

As stipulated by OFPA, recommendations to propose or amend the National List are developed by the 15 member NOSB, organized under the Federal Advisory Committee Act (5 U.S.C. App. 2 et seq.) to assist in the evaluation of substances to be used or not used in organic production and handling, and to advise the Secretary on the USDA organic regulations. OFPA also requires a review of all substances included on the National List within 5 years of their addition to or renewal on the list. If a listed substance is not reviewed by NOSB and renewed by USDA within the five year period, its allowance or prohibition on the National List is no longer in effect. The NOSB sunset review includes considering any new information pertaining to a substance's impact on human health and the environment, its necessity, and its compatibility with organic production and handling.

To implement the sunset review requirement, AMS initially published an advanced notice of proposed rulemaking on the National List sunset review process on June 17, 2005 (70 FR 35177). This document described the process used by the NOSB to complete their responsibility to review National List substances within the OFPA required five year period. Since announcing the first sunset review process, the NOSB and the USDA completed five separate sunset reviews in 2007 (72 FR 58469), 2008 (73 FR 59479), 2011 (76 FR 46595), 2012 (77 FR 33290) and in 2013 (78 FR 61154).

AMS published a revised sunset review process in the Federal Register on September 16, 2013 (78 FR 56811). This provides public notice on the renewal of National List substances. This renewal occurs after the NOSB review.

At its May and October 2014 meetings, the NOSB considered seven substances that were added to the National List in 2010. AMS has reviewed and accepted the NOSB sunset review and recommendations. Substances in Table 1 having final actions of “renew” will continue to be listed on the National List and will be included in the 2020 sunset review.

Table 1—Overview of Final Action for Sunset 2015 National list section Substance listing Final action Synthetic substances allowed for use in organic crop production § 205.601(a)(8) Sodium carbonate peroxyhydrate (CAS #-15630-89-4)—Federal law restricts the use of this substance in food crop production to approved food uses identified on the product label Renew. § 205.601(e)(2) Aqueous potassium silicate (CAS #-1312-76-1)—the silica, used in the manufacture of potassium silicate, must be sourced from naturally occurring sand Renew. § 205.601(i)(1) Aqueous potassium silicate (CAS #-1312-76-1)—the silica, used in the manufacture of potassium silicate, must be sourced from naturally occurring sand Renew. § 205.601(j)(9) Sulfurous acid (CAS # 7782-99-2) for on-farm generation of substance utilizing 99% purity elemental sulfur per paragraph (j)(2) of this section Renew. Nonagricultural (nonorganic) substances allowed as ingredients in or on processed products labeled as “organic” or “made with organic (specified ingredients or food group(s)).” § 205.605(a) Gellan gum—(CAS # 71010-52-1)—high-acyl form only Renew. Nonorganically produced agricultural products allowed as ingredients in or on processed products labeled as “organic.” § 205.606(w) Tragacanth gum (CAS #-9000-65-1) Renew. Authority:

7 U.S.C. 6501-6522.

Rex A. Barnes, Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2015-14865 Filed 6-18-15; 8:45 am] BILLING CODE P
DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Part 430 [Docket No. FSIS-2014-0033] RIN 0583-AD53 Control of Listeria monocytogenes in Ready-to-Eat Meat and Poultry Products AGENCY:

Food Safety and Inspection Service, USDA.

ACTION:

Affirmation of the interim final rule with amendments; request for comments.

SUMMARY:

The Food Safety and Inspection Service (FSIS) is affirming, with changes and a request for comment, the interim final rule “Control of Listeria monocytogenes in Ready-to-Eat Meat and Poultry Products,” which was published in the Federal Register on June 6, 2003. FSIS is making minor changes to the regulatory provisions in response to comments that the Agency received, on the basis of experience in implementing the provisions, and because the way FSIS obtains establishment profile information electronically has changed. FSIS is clarifying in the regulations that establishments may not release into commerce product that has been in contact with Listeria monocytogenes (Lm)-contaminated surfaces without reprocessing the product. In addition, FSIS is removing the requirement for establishments to report production volume and related information to FSIS because the Agency now routinely collects this information through its Public Health Information System (PHIS).

DATES:

Effective September 17, 2015. Comments must be received on or before August 18, 2015.

ADDRESSES:

FSIS invites interested persons to submit comments on the changes. Comments may be submitted by one of the following methods:

Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.

Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, Patriots Plaza 3, 1400 Independence Avenue SW., Mailstop 3782, Room 8-163A, Washington, DC 20250-3700.

Hand- or courier-delivered submittals: Deliver to Patriots Plaza 3, 355 E. Street SW., Room 8-163A, Washington, DC 20250-3700.

Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2014-0033. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Dr. Daniel L. Engeljohn, Assistant Administrator, Office of Policy and Program Development; Telephone: (202) 205-0495.

SUPPLEMENTARY INFORMATION: Background

On February 27, 2001, FSIS proposed (66 FR 12589) to establish several new requirements for the processing of ready-to-eat (RTE) and other meat and poultry products. The Agency proposed food safety performance standards for all RTE and all partially heat-treated meat and poultry products. FSIS also proposed to eliminate its regulations that require both RTE and not-ready-to eat pork and products containing pork to be treated to destroy trichina (Trichinella spiralis).

Finally, FSIS proposed environmental testing requirements for establishments to verify whether their processes were addressing Lm in RTE meat and poultry products. Specifically, FSIS proposed to require establishments that produce RTE meat and poultry products to test food contact surfaces for Listeria species to verify that the establishments are controlling the presence of Lm within their processing environments. Under the proposal, establishments that developed and implemented Hazard Analysis and Critical Control Point (HACCP) controls for Lm would have been exempt from these testing requirements.

Interim Final Rule

On June 6, 2003, FSIS published the interim final rule “Control of Listeria monocytogenes in Ready-to-Eat Meat and Poultry Products” (68 FR 34208). In the interim final rule, FSIS amended its regulations only in regard to the control of Lm in RTE products. The Agency decided to adopt these regulations before completing action on the other provisions of the proposed rule because of outbreaks of foodborne listeriosis, and because of recalls of meat and poultry products adulterated by Lm. FSIS plans to address the other proposed provisions in future Federal Register publications.

The interim final regulations remain in effect. Under these regulations, an establishment that manufactures post-lethality-exposed RTE meat or poultry products must control Lm in the processing environment through its HACCP plan or prevent contamination of products by the pathogen through sanitation standard operating procedures (Sanitation SOPs) or other prerequisite program. The regulations (9 CFR 430.4(b)(1)-(3)) identify three alternative means of controlling Lm: Alternative 1—use of a post-lethality treatment (e.g., steam pasteurization, hot water pasteurization, radiant heating, high pressure processing (HPP), ultraviolet treatment, infrared treatment, or drying) that reduces or eliminates populations of the organism and use of an antimicrobial agent (e.g., potassium lactate or sodium diacetate) or process (e.g., freezing) that suppresses or limits growth of the organism; Alternative 2—use of either a post-lethality treatment that reduces or eliminates Lm or an antimicrobial agent (Alternative 2a) or process that suppresses or limits growth of the organism (Alternative 2b); Alternative 3—use of only sanitation to control the organism. The regulations require an establishment that uses a post-lethality treatment for controlling Lm to validate the treatment's effectiveness and incorporate it in its HACCP plan. Under the regulations (9 CFR 430.4(b)(1)-(3)), an establishment that uses an antimicrobial agent (Alternative 2a) or process that suppresses or limits growth of Lm (Alternative 2b), or that uses only a sanitation program (Alternative 3) for controlling the pathogen must include food-contact surface testing in its sanitation program.

Under the regulations, an establishment that produces hotdog or deli-meat products considered to be at high risk for Lm contamination and that uses only sanitation to control the pathogen must, after two tests of food-contact surfaces that are positive for Lm or an indicator organism under the conditions described in the regulation, withhold affected product from commerce until the food-contact surface contamination problem is corrected. The establishment may release the held product only after statistically valid sampling shows the product not to be adulterated with Lm, or after the product has been reworked using a process that destroys Lm (9 CFR 430.4 (b)(3)(ii)).

The regulations include requirements for proper documentation of an establishment's Listeria controls, the verification of those controls, and the availability of the documentation to FSIS personnel. In addition, the regulations require an establishment that produces post-lethality-exposed RTE products to provide FSIS, at least annually, with estimates of annual production volume and related information on the types of products it processes under each of the Lm control alternatives (9 CFR 430.4(d)).

FSIS decided to establish the regulatory requirements for preventing Lm contamination of RTE meat and poultry products based on two studies on the public health risk posed by the pathogen in RTE food products. The first study, an FSIS-Food and Drug Administration (FDA) risk ranking of RTE food products, placed hotdog and deli-meat products among products that pose the highest risk in terms of listeriosis cases per annum.1 The second study, a quantitative risk assessment by FSIS of Lm in deli meats, identified combinations of in-plant control measures that showed the greatest potential for reducing the public health risks posed by Lm. 2 The second study enabled FSIS to determine that the first Lm control alternative identified in the interim final rule—post-lethality treatment plus growth limitation or suppression—provided the greatest risk reduction potential, while the third alternative—sanitation only—provided the least.

1 FDA/Center for Food Safety and Applied Nutrition; USDA/FSIS. September 2003. Quantitative Assessment of the Relative Risk to Public Health from Foodborne Listeria Monocytogenes among Selected Categories of Ready-to-Eat Foods. Washington, DC. http://www.fda.gov/downloads/Food/FoodScienceResearch/UCM197329.pdf.

2 USDA/FSIS. May 2003. FSIS Risk Assessment for Listeria monocytogenes in Deli Meats. Washington, DC. http://www.fsis.usda.gov/OPPDE/rdad/FRPubs/97-013F/ListeriaReport.pdf.

In the regulations, FSIS advised establishments that it would conduct more testing at establishments if their Lm control measures provide less potential risk reduction than other available control measures. Thus, the regulations provide that FSIS will conduct more testing at an establishment that chooses alternative 2 and uses a post-lethality treatment of product than if it had chosen Alternative 1. Similarly, FSIS will conduct more testing at an establishment that chooses alternative 2 and uses an antimicrobial agent or process that suppresses or limits the growth of Lm than at an establishment that uses a post-lethality treatment (9 CFR 430.4(b)(2)(iv)). FSIS conducts more testing at an establishment that chooses Alternative 3 than at an establishment that has chosen Alternative 1 or 2 (9 CFR 430.4(b)(3)(iii)).

Finally, the regulations allow establishments that use post-lethality treatments or antimicrobial agents or processes that are effective in destroying Lm or in limiting its growth to declare this fact on the labels of their products (9 CFR 430.4(e)). The purpose of the voluntary labeling is to inform consumers about measures that have been taken to ensure the safety of the products and thus to enable the consumers to select such products in preference to others.

On October 6, 2003, the Agency supplemented the interim final rule with the “FSIS Compliance Guideline: Controlling Listeria monocytogenes in Post-lethality Exposed Ready-to-Eat Meat and Poultry Products” (the Compliance Guideline). The Agency also conducted a series of workshops on the interim final rule at several locations around the country during the pre-implementation period before October 6, 2003, when the interim final rule became effective. On January 10, 2014, FSIS made available an updated version of the Compliance Guideline is available on FSIS's Web site at http://www.fsis.usda.gov/wps/wcm/connect/d3373299-50e6-47d6-a577-e74a1e549fde/Controlling-Lm-RTE-Guideline.pdf?MOD=AJPERES.

Based on available data, FSIS is confident that it is successfully carrying out its mission to protect public health by enforcing safeguards designed to control Lm. In the 10 years since FSIS issued the interim final rule described above, the percent positive in FSIS testing for Lm in RTE products has decreased from 0.76 percent in CY 2003 to 0.34 percent in CY 2013. The Agency considers the RTE regulatory results to be an excellent indicator of the trends in pathogen presence in RTE products over several years. This downward trend shows that the interim final rule has been effective in controlling Lm in RTE meat and poultry products. Therefore, FSIS is affirming the interim rule as final with only the minor changes discussed below.

Opportunities To Comment

Because some of the approaches to Lm control addressed in the interim final rule were novel, FSIS provided an 18-month comment period (69 FR 70051; December 2, 2004). FSIS also assembled a team of Agency experts to make a preliminary assessment of the interim final rule. FSIS announced in the Federal Register (69 FR 70051; December 2, 2004) that the report “Assessing the Effectiveness of the Listeria Monocytogenes Interim Final Rule” was available in the Agency's Docket Room and on line at http://www.fsis.usda.gov/wps/wcm/connect/4174b07e-8b39-4617-acdf-adc38a249cd7/LM_Assessment_Report_2004.pdf?MOD=AJPERES.

In addition, FSIS asked the National Advisory Committee on Meat and Poultry Inspection (NACMPI) to review the interim final rule and the assessment team's report and to make its own recommendations (69 FR 29124). NACMPI made recommendations on the assessment at its June 2-3, 2004, meeting. The Agency responded to the recommendations at the NACMPI meeting held on November 16-17, 2004 (69 FR 64902). NACMPI recommended that the assessment team focus on the differences among small, very small, and large plants and assess the economic impact on very small and large plants. NACMPI also recommended that FSIS conduct focus groups to determine whether consumers are confused by the provisions for labeling statements explaining that product has undergone post-lethality treatments or has been treated with an antimicrobial. Finally, NACMPI recommended that FSIS determine whether the assumptions on product risk made in the FDA/USDA Quantitative Risk Assessment are accurate.

FSIS agreed to consider variables such as product types and the frequency of production, which reflect differences among small, very small, and large plants. The Agency also agreed to review whether the rule has caused firms, particularly small firms, to go out of business. FSIS also continued to assess the effects of the informational labeling statements allowed under the rule. However, FSIS stated that the informational labeling provision should remain in the final version of the Lm rule as an encouragement to industry to declare that products have undergone post-lethality treatments or have been treated with anti-microbial agents or processes to destroy Lm. FSIS agreed to assess the three alternatives in the rule and evaluate their effectiveness for risk mitigation.

NACMPI's recommendations and FSIS's responses can be viewed at http://www.fsis.usda.gov/wps/wcm/connect/d8be3905-5f3c-458d-a5e7-f5149457b20e/LM_Assessment_Response.pdf?MOD=AJPERES.

Finally, FSIS received comments on the impact of the interim final rule on small businesses from the Office of Management and Budget (OMB) in response to OMB's 2004 Draft Report to Congress on the Costs and Benefits of Federal Regulation (69 FR 7987; February 20, 2004). The commenters stated that FSIS underestimated the costs and overestimated the benefits of the interim final rule. The commenters stated that the rule should be rescinded or amended to replace the regulatory requirements for small and very small processors with a pre-HACCP regulatory environment. In response, FSIS stated that the Agency would consider all comments and respond to them in a final rule.

A summary of the comments and FSIS's response is reflected in the March 2005 OMB report “Regulatory Reform in the U.S. Manufacturing Sector,” which is available at http://www.whitehouse.gov/omb/inforeg_regpol_reports_congress.

In developing this final rule, FSIS considered all comments received in response to the documents described above. Based on information provided by comments, FSIS's experience enforcing the interim final regulations, and analysis of available data, FSIS has decided to affirm the provisions in the interim final rule with two minor changes. The minor changes are explained below and are discussed in more detail in the Agency's responses to comments.

Summary of Amendments to the Interim Final Rule

FSIS is clarifying that product that has tested positive for Lm or that has been in contact with an equipment surface that has tested positive for Lm is adulterated and may not be released into commerce. FSIS is also making explicit in 9 CFR 430.4(a), however, that the product may be reprocessed using a method that destroys Lm.

9 CFR 430.4(a) clearly states that “RTE product is adulterated if it contains L. monocytogenes or if it comes into direct contact with a food contact surface which is contaminated with L. monocytogenes.” However, the wording of paragraphs 9 CFR 430.4(b)(2)(iii)(B), (b)(3)(i)(B), and (b)(3)(ii)(B) and (C) has led some establishments to question whether they may perform further confirmation testing after a finding of Lm in RTE product and then release the product into commerce. Therefore, FSIS removed from paragraphs 9 CFR 430.4(b)(2)(iii)(B), (b)(3)(i)(B), and (b)(3)(ii)(B) provisions concerning additional establishment testing in response to Lm results. As revised, the regulations will refer only to additional establishment testing in response to positive indicator organism results. In addition in paragraph 9 CFR 430.4(b)(3)(ii)(C), FSIS has removed provisions that may suggest that establishments may “be able to release into commerce the lots of product that may have become contaminated with L. monocotogenes” because, as is stated in 9 CFR 430.4(a), such product is adulterated and cannot be released into commerce.

FSIS is also removing the requirement that establishments report production volume and related information to FSIS because the Agency now collects this information through PHIS.

In accordance with section 553 of the Administrative Procedure Act (5 U.S.C. 553), the Agency finds good cause for making these changes effective September 17, 2015. This rule provides minor conforming amendments to FSIS's regulations and imposes no new or substantive requirements on the public. For these reasons, FSIS has determined that notice and opportunity for public comment on these changes are unnecessary. However, FSIS is providing the public with an opportunity to comment on these minor, conforming changes.

Comments and Responses

FSIS received comments from five trade associations that represent meat and poultry processors, two consumer organizations, an association that represents small businesses, an association that represents manufacturers, an organization that represents scientists, a very small establishment, and an individual consumer on the interim final and on the other opportunities for comment described above. Following are FSIS's responses to the issues that they raised.

Applicability of Rule; Exemption of Certain Products

Comment: Several commenters stated that certain classes of products should be exempt from the rule. For example, these commenters stated that products that are exposed to the environment but that receive a validated, post-packaging lethality, such as products that are cooked, repackaged, and then irradiated, thermally processed, or high-pressure processed in their final package, should be exempt from the requirements in the rule. These commenters stated that the fact that there was product exposure to the post-lethality processing environment during the repackaging operation that followed the initial cook should not subject such a product to the Lm control rule. In addition, the commenters stated that, products that remain at a temperature lethal to Lm until the products are filled into the final packaging should be exempt.

Response: An establishment that produces post-lethality exposed RTE products is appropriately required to control Lm through HACCP or a sanitation program because an RTE product that is not free of pathogens, including Lm, can easily cause illness because it will not be subject to a lethality step before consumption. Therefore, FSIS is not exempting such post-lethality-treated products from the requirements in this rule.

Post-lethality exposed product may be at risk of contamination and thus needs to be subject to the requirements in this rule. However, a product that is not post-lethality exposed (not removed from the container in which it is processed) is not subject to the requirements in this rule.

Regarding HPP of RTE product, in most cases that FSIS is aware of, HPP is applied to an RTE product that was previously subject to a lethality treatment, such as cooking, and then was exposed to the environment before being packaged. Thus, HPP is considered a post-lethality treatment that is subject to the Alternative 1 or Alternative 2 requirements of 9 CFR 430.4.

There may be cases in which a treatment is applied to a post-lethality exposed RTE product in such a manner that the product could no longer be regarded as post-lethality exposed and thus would be exempt from the interim final rule. For example, if HPP is validated to achieve at least a 5-log reduction of Lm and other pathogens of concern (e.g., Escherichia coli O157:H7 and Salmonella) for cooked uncured meat patties or at least a 7-log reduction in cooked chicken strips, the process would be considered to achieve full lethality, and the product would not be considered to be post-lethality exposed (see 9 CFR 318.23).

FSIS has explained in its Compliance Guideline (http://www.fsis.usda.gov/wps/wcm/connect/d3373299-50e6-47d6-a577-e74a1e549fde/Controlling-Lm-RTE-Guideline.pdf?MOD=AJPERES) that it considers certain RTE products as not post-lethality exposed; that is, they are not exposed to the environment after the lethality treatment and before packaging. They include fully cooked “cook-in-bag” product that is shipped from the establishment in an intact cooking bag, thermally processed commercially sterile products, and products that receive a lethality treatment and are hot-filled at the lethality temperature.

A product that has undergone a lethality treatment and is hot-filled into packaging may be considered to be an RTE product that has not been post-lethality exposed if the temperature lethal to pathogens and the sanitary handling of the product are continuously maintained to the point where the product is packaged. In this situation, the establishment needs to have documentation on file showing that the lethality temperature and sanitary handling are maintained continuously from the point of lethality to the point of packaging.

Comment: A few commenters objected to the assessment team's statement that Lm is reasonably likely to occur in the production of RTE meat and poultry products. The commenters argued that the assessment team ignored the value of post-lethality treatments.

Response: In the assessment report, the assessment team was expressing a view that Lm is reasonably likely to occur in the absence of controls to eliminate or reduce it. Many in industry, Government, and academe share the view that Lm is ubiquitous in the RTE processing environment, and that a prudent establishment would maintain controls in its production process to prevent the contamination of its food products. Establishments use post-lethality treatments because the pathogen is reasonably likely to occur in the product in the absence of the treatment. For this reason, the regulations require that an establishment that uses a post-lethality treatment include the treatment in its HACCP plan or Sanitation SOP or other prerequisite program (9 CFR 430.4(b)(1)(i)).

Comment: A few commenters suggested that the statements in the questions and answers accompanying FSIS Form 10,240-1 should be reflected in the final rule. According to one such statement on the questions and answers accompanying FSIS Form 10,240-1, products intended for further processing and labeled for further processing are not subject to the rule. According to another, products that otherwise would be considered RTE, but that are shipped to another establishment for use in a non-RTE product (e.g. frozen entrée), should not be subject to the rule.

Response: FSIS has addressed these issues in the Compliance Guideline. A product that is intended for further processing at another FSIS inspected establishment and that is labeled “for further processing” is not considered RTE and, therefore, is not covered by the rule. However, products that are commonly understood to be RTE, such as cooked sausages subject to the standard of identity in 9 CFR 319.180, are commonly understood to be RTE and cannot be labeled for “further processing” as a non-RTE product. In addition, a product that otherwise would be considered RTE, but that is shipped to another FSIS inspected establishment for use in a non-RTE product, is not considered RTE and therefore, is not covered by the rule.

It should be noted that FSIS Form 10,240-1 was discontinued on September 30, 2011. As mentioned above, FSIS continues to collect the same information through PHIS.

Comment: One commenter asked FSIS to explain the criteria for determining when antimicrobial processes also act as post-lethality treatments. In particular, the commenter wanted FSIS to explain why products with a water activity (aw) of less than 0.85 rather than of 0.92 or less will not support Lm growth.

Response: FSIS has addressed this issue in the Compliance Guideline. Low water activity limits the amount of water available to pathogens such as Lm and will not allow them to grow. An aw less than or equal to 0.92 will not support the growth of Lm, and an aw of 0.85 or less (the aw for achieving shelf stability) can sometimes even reduce Lm numbers. FSIS will consider an aw of ≤0.85 at the time the product is packed to be a post-lethality treatment and to be an antimicrobial treatment if the establishment provides supporting documentation that Lm is reduced by at least 1-log before the product leaves the establishment, and that no more than 2-logs of growth of Lm occurs over the shelf life of the product.

Comment: One commenter asked FSIS to clarify for establishments the distinction between RTE and not-RTE products. The commenter stated that documentation for making the determination is not available for a number of products.

Response: In Attachment 1.2 of the Compliance Guideline, FSIS provides a chart that distinguishes three types of products, two not-RTE and one RTE. One type of not-RTE product is a product that contains a meat or poultry product ingredient that has not received a full lethality treatment sufficient to destroy pathogens (e.g., raw products, partially cooked products, or products that are irradiated or HPP-treated and do not achieve at least a 5-log reduction of Lm and other pathogens of concern). This type of not-RTE product could also be a product that has received an adequate lethality for Salmonella but is not defined by a standard of identity or bear a common or usual name that consumers understand to refer to RTE product. The product also does not meet the definition of RTE in 9 CFR 430.1 (e.g., not-RTE ham). The other type of not-RTE product is a product that contains a meat or poultry component that has received a full lethality treatment for pathogens and that also contains non-meat or non-poultry components to which the intended user must apply a lethality treatment (e.g., a meal, dinner, or frozen entrée). An RTE product, on the other hand, may be a heat-treated or not-heat-treated shelf-stable product, a fully cooked, not-shelf-stable product (e.g., hotdogs), or a not-shelf-stable product containing secondary inhibitors (e.g., RTE sausage). The chart in the Compliance Guideline lists HACCP process categories for each product type, the applicability of safe handling labeling, and significant matters that the HACCP plan should address for the product and process.

Listeria Control Alternative Requirements

Comment: A few commenters recommended that the determination of which Lm control alternative is being used at a given establishment should take into account documented processes applied at the establishment to which its RTE product is shipped. For example, the commenters stated that if an Alternative-3 product is shipped to an establishment where it is subject to an Alternative 2-type of process, then FSIS should consider the product as an Alternative 2 product.

Response: The Compliance Guideline discusses situations in which an establishment implementing one type of Lm control to prevent contamination of its post-lethality exposed product ships the product to another establishment that applies the same or another type of Lm control. The determination of which Lm control Alternative requirements apply to the product would depend on the extent of documentation and documentation-sharing by each establishment, as well as on the product distribution controls actually applied by the establishments. If an Alternative-3 product is shipped to an establishment where it is subject to an Alternative 2-type of process, and this process is properly documented in the first establishment's HACCP system, FSIS would consider the product as an Alternative 2-type of product.

Verification Sampling and Testing

Comment: One commenter agreed with FSIS's recommendation that establishments hold all product tested by establishments until test results are known but urged FSIS to say more about when and how tests should be conducted (e.g., before or during production). The commenter stated that FSIS needs to provide specific details and flow diagrams, with examples. FSIS also should provide a hold-and-test scenario flow chart.

Response: The Compliance Guideline includes recommendations on verification testing, methods to be used, recommended sampling plans, and a hold-and-test scenario flow chart. The Compliance Guideline also includes examples of verification sampling programs for the product classes that are subject to the interim final rule.

Establishments are required to hold or maintain control of RTE products that FSIS has tested for Lm and other pathogens, and RTE products that have passed over food-contact surfaces that FSIS has tested for Lm and other pathogens. In addition, establishments in Alternative 3 (who only use sanitation controls) are required to hold product after a second consecutive food-contact surface positive for Lm or an indicator organism until the establishment corrects the problem indicated by the test result (9 CFR 430.4(b)(3)(ii)(B)).

Establishments in Alternative 3 must sample and test the lots of product using a method that will provide a level of statistical confidence that the product is not adulterated (9 CFR 430.4(b)(3)(ii)(C)). FSIS recommends that establishments use the International Commission on Microbiological Specifications for Foods (ICMSF) Tables. The ICMSF Tables provide examples of statistically-based sampling plans that are commonly used for demonstrating lot acceptance. The ICMSF Tables are included in the Compliance Guideline. FSIS also recommends that establishments collect samples at least three hours after the start of operations, if possible, to allow Lm to work its way out to the surface of the equipment. If establishments typically produce RTE product for less than three hours, then the samples can be collected less than three hours after the start of operations.

FSIS recommends that establishments in Alternatives 1 and 2a hold and test product after multiple contact surface positives for an indicator organism. The finding of three consecutive positive food contact surface samples increases the risk that the product is contaminated with Lm. If the establishment does not hold and test the product after the third positive, it should provide other support demonstrating that the product is not likely to be contaminated. The establishment should take preventative steps such as: increase its routine sampling for Lm; collect intensified samples to find sources of harborage and cross contamination; reassess its Sanitation SOPs to determine whether sanitation issues could be leading to positive results; assess the effectiveness of its post-lethality treatment or antimicrobial agents and processes; or reassess its HACCP plan to determine whether the actions it is taking are effective in controlling Lm.

Comment: One commenter stated that FSIS verification sampling should be conducted after the use of Lm control techniques (such as Alternative 3 controls) that are more economically feasible than post-lethality treatments and the use of growth inhibitors. The commenter stated that FSIS should conduct risk-based inspection and data collection on risk factors in the establishment and should use sound statistical techniques in environmental sampling. The commenter also stated that intensified verification testing (IVT) is a return to the command-and-control mode of inspection that FSIS should avoid. (An IVT is an FSIS sample collection activity that the Agency may conduct when, in either FSIS or establishment testing, a surface that comes into contact with post-lethality exposed RTE product tests positive for a pathogen of public health concern. IVTs are performed with a “for cause” Food Safety Assessment (FSA) to provide an in-depth evaluation of food safety systems at the establishment. The FSA may find the vulnerability or the noncompliance that led to the positive result.)

Response: The regulations in 9 CFR part 430 state that products and the processing environment under Alternative 3 are likely to be subject to more frequent verification testing by FSIS than products and the processing environment under Alternative 1 or 2. In fact, Alternative 3 products are sampled at a higher rate in the FSIS risk-based sampling code RTEPROD_RISK (9 CFR 430.4(b)(2)(iv) and (b)(3)(iii)).

FSIS agrees that inspection should be risk-based. To that end, FSIS has developed risk-based verification sampling that focuses the Agency's testing on those products or environments in a process where a problem is most likely to occur. As of August 1, 2013, FSIS combined its random ALLRTE and risk-based RTE001 product sampling projects into a single project called RTEPROD. The RTEPROD sampling project uses two project codes: RTEPROD_RAND for product samples selected randomly, and RTEPROD_RISK for post-lethality-exposed product samples selected based on risk. Under the RTEPROD_RISK project code, establishments are identified for sampling based on a risk-ranking algorithm, which takes into account the control alternative, the production volume, the type of product produced, and the establishment's sampling history.

FSIS also uses the Routine Lm Risk-based (RLm) sampling project. While RTEPROD involves sampling and testing of the RTE meat and poultry products themselves, the RLm program includes sampling and testing of products, product contact surfaces, and environmental surfaces. Thus, RLm provides a means of identifying establishments that present a higher risk of Lm contamination in the food processing environment before product contamination actually occurs.

A routine FSA is conducted at the establishment in conjunction with RLm sampling and testing. Under RLm, samples are scheduled using a FSA prioritization model, which takes into account levels of inspection, control alternative, and type of product produced. Starting in August 2009, RLm sampling was increased so that establishments that produce post-lethality exposed RTE product are sampled at least once every four years under this project.

FSIS also agrees that, to be successful, risk-based verification must be carried out on the basis of solid information. The IVT activity can be a valuable source of information for both the Agency and the inspected establishment when potentially serious problems are found in an establishment's food safety system. The results of an IVT can be used to help the Agency focus its inspection resources where they are most needed and can help the establishment plan improvements in its food safety system. In this regard, the IVT does not constitute a return to a command-and-control system of inspection in which FSIS told the establishment explicitly what it had to do to produce a safe product. Rather, the IVT provides the information on which an establishment may base its own decisions on the most effective control measures to take.

Comment: While conceding that IVT may be appropriate in some circumstances, such as multiple Lm positives on product or food-contact surfaces, a few commenters strongly opposed the assessment team's recommendation that an IVT be performed for multiple contact or product positives for Listeria spp. or Listeria-like organisms. The commenters also urged the Agency not to penalize establishments for trying to actively detect and eliminate potential harborage areas but to verify that appropriate corrective actions have been taken. The commenters also questioned whether the Agency would have the resources necessary to conduct IVT each time an establishment surpasses arbitrary yearly limits, as recommended by the Agency's assessment team.

Response: The FSIS assessment team addressed the actions that the Agency should take with regard to Lm-positive results from tests performed on official samples. It should be understood that every inspected establishment is required by regulation to operate under a HACCP plan and to take corrective actions whenever there is a deviation from critical limits for the CCPs identified in the plan. FSIS personnel are trained to take enforcement action only if there has been a violation of the regulations. If an establishment has found a deviation through its normal HACCP monitoring and verification activities and takes some corrective action based on its findings, the Agency has no regulatory grounds for taking enforcement action because of the deviation.

However, if the Agency has verification testing results or other information that an establishment may have shipped adulterated product, an IVT is one of a number of appropriate actions, including an enforcement action, that the Agency may take in the interest of protecting the public health. Repeated findings of Listeria spp. or Lm on food-contact surfaces or on product may lead to an enforcement action if FSIS determines that the establishment is not properly addressing insanitary conditions.

Comment: One commenter stated that the FSIS sampling program should be modified to provide baseline surveillance information to permit progress to be gauged. The comment said that verification sampling should target the riskiest products, and that there should be a properly designed and conducted annual survey of RTE establishments.

On the results that were available in 2004, when the FSIS assessment team prepared its report, the commenter questioned why FSIS had found no difference among the prevalence levels of Lm in randomly sampled RTE foods (3 of 345 or 0.9%) and in RTE foods for which sampling was targeted (11 of 1,349 or 0.8%). (The results are presented in the “Agency Accomplishments” section of the assessment team's report.) The commenter recommended the reevaluation of establishment HACCP plans and Sanitation SOPs and other prerequisite programs in the event of an FSIS positive Lm sample in a product that supports the growth of the organism. The commenter said that uniform criteria for such reevaluation should be developed.

Response: FSIS's verification sampling and testing program for Lm is designed to focus Agency resources on those products and processes that may pose higher risks of adulteration.

Regarding the apparent similarity in Lm prevalence among RTE products that were sampled randomly and RTE products that were sampled according to risk, the Agency found that, when both ALLRTE and RTE001 samples were scheduled in one month, often only the RTE001 products were collected. In addition, FSIS found that the highest-risk products produced by the establishment were often collected for the ALLRTE project, rather than products collected at random. FSIS determined that combining the ALLRTE and RTE001 sampling projects into the new RTEPROD project would reduce redundancy in sample scheduling and make the sample selection process more efficient. Under RTEPROD, the sampling project codes specify more clearly whether FSIS personnel should select samples randomly (RTEPROD_RAND) or based on risk (RTEPROD_RISK). In addition, FSIS personnel receive either a RTEPROD_RAND or a RTEPROD_RISK sampling request at most once per month per establishment (see FSIS Directive 10340.4, Verification Activities for the Listeria monocytogenes Regulations and the Ready-to-Eat (RTE) Sampling Program). FSIS personnel are not requested to collect both RTEPROD_RAND and RTEPROD_RISK samples in one month to avoid overlap and to increase sampling efficiency.

Regarding the suggestion that establishment HACCP plans and prerequisite programs be reevaluated in the event of an Lm-positive product test, such a reevaluation may be necessary depending on the circumstances of the positive test. If an establishment made such a finding in the course of testing that was part of its HACCP verification procedures, the establishment would follow the corrective actions procedures in its HACCP plan. If the establishment determined that a change affecting the validity of the hazard analysis had occurred, the establishment would reassess its HACCP plan. On the other hand, an Lm-positive test on an official FSIS RTE product sample might indicate that the establishment's HACCP system had failed to prevent the production of adulterated food. In that case, under the HACCP regulations, FSIS would have grounds for finding the establishment's HACCP system to be inadequate. In addition, if the establishment failed to take appropriate corrective action, as required by 9 CFR 417.3, FSIS would have further grounds for finding the establishment's HACCP system to be inadequate.

In the Compliance Guideline, FSIS has listed and explained the elements of adequate validation for post-lethality treatments and growth-suppressing or limiting formulations or processes.

Comment: One commenter noted that the rule did not have a uniform recordkeeping requirement for the results of environmental sampling. Sanitation SOP records are required to be kept for only six months, HACCP records from one to two years. The commenter requested that FSIS explain that an effective environmental sampling program must provide for long-term trend analysis.

Response: Records that are generated under the Lm control regulations may be Sanitation SOP records, HACCP records, or other prerequisite program documentation and records. As the commenter points out, retention requirements apply to Sanitation SOP records and HACCP records. Prerequisite program documentation and records of activities conducted under the Lm control regulations affect hazard analysis decisions and are required to be maintained for at least two years under 9 CFR 417.5 because they are documents used to inform decisions in the establishment's hazard analysis.

FSIS agrees that it is important that an establishment analyze trends in product, food-contact surface, and environmental test results. In the Compliance Guideline, FSIS advises establishments to keep monitoring records, including test results, for use in evaluating their Sanitation SOPs. The monitoring records should be designed to show trends in the development of insanitary conditions. Establishments should review at least the previous month's testing results to determine whether a trend is emerging, or whether it is necessary to revise their sampling plans. Persistent problems may indicate the pathogen's presence in niches in the processing environment. FSIS also advises establishments to adjust their testing frequencies on the basis of data that they have collected over time. FSIS is not, however, proposing to change its record retention requirements because the Agency believes that the requirements are adequate.

Comment: One commenter stated that while the interim final rule required establishments to verify the effectiveness of their Listeria control program through testing, they have no obligation to conduct such testing at any particular frequency, even if they produce high-risk products such as deli meats and hot dogs. The commenter argued that, without mandatory minimum testing frequencies, establishments simply cannot be assured that their controls are working effectively every day to control Listeria.

Response: After reviewing comments on the 2001 proposed rule (66 FR 12589) and the results of the FDA/FSIS risk ranking and the FSIS risk assessment, FSIS concluded that a mandatory testing frequency was not well-founded. The FDA/FSIS risk ranking and FSIS risk assessment showed that post-lethality interventions and formulation of RTE meat and poultry products with growth inhibitors was much more effective in preventing listeriosis than testing product or food contact surfaces. Therefore, FSIS is not making changes to the regulations to require a minimum testing frequency for establishments.

Nevertheless, the Agency regards establishment verification testing of the processing environment and especially of food-contact surfaces to be important in monitoring the sanitary conditions under which post-lethality exposed RTE products are processed. Establishments that produce RTE products and that rely on sanitation procedures alone to control Lm (Alternative 3) should carry out effective verification procedures, including food-contact surface testing, to ensure that their controls are effective, and that the products are not contaminated. Such is the Agency's regard for the value of food-contact surface testing that the Agency has incorporated food-contact surface testing into its RLm sampling program that it is carrying out in RTE establishments.

Comment: One commenter stated that, even though the rule required establishments to make their own testing results available to FSIS inspection personnel upon request, nothing in the interim final rule imposed on establishments an affirmative obligation to disclose test results, particularly positive results, to FSIS at the time the results are obtained. The commenter argued that, without immediate access to these data when a problem is first identified, inspection personnel may be unaware that there is a sanitation problem at a facility, that interventions are not working properly, or that those problems may be persistent and uncorrected.

Response: As the comment acknowledges, when FSIS personnel request testing records, the establishment is required to make them available (9 CFR 430.4(e)) so that FSIS personnel can complete the required verifications. From the verification results FSIS can know whether there is a sanitation problem at the establishment, whether antimicrobial interventions are working properly, whether a corrective action was appropriately taken to address a non-recurring problem, or whether there is mounting evidence of a persistent problem that must be corrected.

Changing the regulations to require immediate notification of FSIS when a positive test is obtained would not affect what either the establishment or FSIS is required to do with respect to product safety in response to the positive test result. Therefore, FSIS is not proposing to change the regulations in this respect.

Compliance Guidance

Comment: A few commenters stated that the Agency should periodically update the Compliance Guideline. Also, commenters stated that the Agency should make available to the industry guidance on acceptable procedures for evaluating the effectiveness of new post-lethality treatments and antimicrobial agents or processes.

Response: FSIS has updated the Compliance Guideline four times since the interim final rule published. The first update in October 2004 responded to comments and questions that FSIS received about the rule and addressed questions that participants asked during the workshops that the Agency held in preparation for the implementation of the interim final rule. The second update in May 2006 included new information on FSIS's risk-based sampling algorithm and acceptable procedures for evaluating the effectiveness of new post-lethality treatments and antimicrobial agents or processes. The third update in September 2012 provided updated technical information on the control alternatives and on how establishments could take corrective actions in response to positive results and new information on developing a listeria control program. The fourth update in January 2014 responded to comments and questions that FSIS received in response to the previous version. FSIS will continue to update the Compliance Guideline as necessary.

Labeling; Consumer Education

Comment: One commenter stated that the labeling claims about treatments that eliminate, suppress, or limit the growth of Lm could be misleading. The commenter argued that allowing companies to provide information about technologies, without also including safe handling instructions, may create further potential to mislead consumers, including susceptible groups, into a false sense of safety and lead to improper handling.

Response: Safe handling instructions are required if the meat or poultry component of a product is raw or partially cooked (i.e., not considered RTE), and if the product is destined for household consumers or institutional users (9 CFR 317.2(1) or 381.125(b)). All food products, including shelf-stable RTE products, must be handled with appropriate care to prevent product adulteration. Findings of a survey conducted by the International Food Information Council (IFIC), which is described in more detail in the response to the next comment, do indicate that label statements about processing for improved product safety may cause some consumers to feel safe about eating product after a “use-by” date. This could be a concern if the “use-by” date were a safety-based date.

FSIS believes, nevertheless, that the processed-for-safety statements can be made if they are adequately supported. Also, as the Agency's own assessment team has recommended, the Agency should give industry flexibility to develop labeling statements that are truthful and not misleading. FSIS will review and approve labels that bear such statements before they are used, as it approves all labels that make special claims. The Agency also will ensure that its food safety education materials for consumers include information about the labels and about Lm.

Comment: IFIC submitted the results of a study that it conducted in collaboration with FSIS. In the study, IFIC tested several different informational statements to determine the impact such labeling has on consumer perceptions of food safety. The IFIC survey found that, while food-safety information can assist consumers in the purchase, preparation, and handling of foods, the food-safety labeling messages that were tested may not achieve this goal. None of the statements tested performed better than control product labeling. Only a very small segment of the population of consumers in the study felt that enhanced food safety was an important reason to purchase a product. Most statements did not enhance consumer perceptions of food safety, although the statements were likely to make consumers feel safe eating product after the “use by” date. Also, the results appeared to indicate that use of labels with certain food safety information may actually drive some consumers away from the product category.

Response: FSIS understands the challenge of providing consumers with useful and important food safety information on product labels. That is why the Agency is not requiring labeling statements about Lm controls but only permitting and encouraging their use.

Retail

Comment: A few commenters stated that FSIS should conduct research to determine the magnitude of retail-level contamination. A few commenters agreed with the assessment team finding that efforts to control Lm contamination at retail are warranted. The commenters stated that, in addition to training, there must be measurement, monitoring, and enforcement of best practices at retail. The commenters agreed with the assessment team's finding that regulatory strategies aimed at FSIS-inspected establishments may not be effective in reducing retail-level contamination. Another commenter strongly agreed with the assessment team's recommendation to educate and train retail and food service personnel but noted that this matter is usually outside USDA/FSIS jurisdiction.

One commenter stated that additional training for retail staff is appropriate for reducing Lm contamination of RTE products at that level. The commenter also recommended the use of antimicrobial agents in products sold at retail. The commenter recommended that FSIS investigate the practicality of freezing or other practices during transport of RTE products. In addition, the commenter stated that the FSIS Lm control strategy should focus on preventing cross-contamination at the deli counter.

Response: State and local governments have chief responsibility for the administration of inspections and regulation of retail facilities on a regular basis. Although FSIS does not inspect retail establishments, it may visit them to ensure that the meat, poultry, and egg products that they sell remain safe for human consumption and are not adulterated or misbranded.

FSIS provides information, materials, and assistance to help State and local agencies to achieve food safety goals and conducts outreach programs that are aimed at retail and food service personnel. FSIS also participates with FDA in the development of the Food Code model ordinance. The Food Code sets forth model standards that State and local public health authorities may adopt in their own regulatory programs for the retail sector.

To help minimize the public health burden of listeriosis, FSIS and the FDA conducted an interagency risk assessment to better understand the risk of foodborne illness associated with eating certain RTE foods prepared in retail delis and developed recommendations for changes in current practices that may improve the safety of those products. In 2013, FSIS and FDA made their findings available to the public in the “Interagency Risk Assessment—Listeria monocytogenes in Retail Delicatessens” (Interagency Retail Lm Risk Assessment), which is available on FSIS's Web site at http://www.fsis.usda.gov/wps/portal/fsis/topics/science/risk-assessments.

The agencies conducted the risk assessment to better understand how retail practices (e.g., temperature control, sanitation, worker behavior) influence the risk of listeriosis associated with eating meat, cheeses, and salads sliced or prepared in retail delicatessens. The risk assessment also examines how effective various interventions are in limiting the survival, growth, or cross contamination of Lm.

The risk assessment is based on observations of deli employees' work routines; concentrations of Lm on incoming products and in the deli environment; studies on the ability of Lm to spread in retail delis, such as from a slicer to food; and an existing dose-response model. The study was designed to apply to a range of deli establishments, from small independent operations to the deli departments in large supermarkets.

FSIS agrees that care should be taken in storage, handling, and distribution of RTE meat and poultry products, and that strict temperature controls are important in preventing the outgrowth of any Lm that may be present in products. Using the key findings of the Interagency Retail Lm Risk Assessment along with available scientific knowledge, the FDA Food Code, and lessons learned from controlling Lm in FSIS-inspected meat and poultry processing establishments, FSIS developed the “FSIS Best Practices Guidance for Controlling Listeria monocytogenes (Lm) in Retail Delicatessens,” which provides practical recommendations that retailers can use to control Lm contamination and outgrowth in the deli. The best-practices guidance is available at http://www.fsis.usda.gov/wps/wcm/connect/29d51258-0651-469b-99b8-e986baee8a54/Controlling-LM-Delicatessens.pdf?MOD=AJPERES. FSIS encourages retailers to use the best-practices guidance to help ensure that RTE meat and poultry products in the deli area are handled under sanitary conditions and are not adulterated.

Risk Assessment

Comment: One commenter noted that the draft of the second risk assessment, initiated in early 2001, was not completed until February 2003—two years after publication of the proposed rule, which addressed control of Lm. The commenter stated that the Agency limited the new assessment to deli meats only (ignoring hot dogs and other high-risk meat and poultry products) and did not include sampling of non-food contact surfaces in the risk model. The commenter also stated that the risk assessment excluded consideration of whether the risk would be reduced if, in addition to other steps, final product testing was required. The final version of FSIS's risk assessment,3 released in May 2003, found that the minimal testing frequency in the proposed Listeria rule would result in a small reduction in Listeria levels, and that a combination of interventions (sanitation and testing of food-contact surfaces, lethality interventions, and growth inhibitors) appeared to be more effective than any single intervention.

3 FSIS, FSIS Risk Assessment for Listeria Monocytogenes in Deli Meats (May 2003) available at http://www.fsis.usda.gov/OPPDE/rdad/FRPubs/97-013F/ListeriaReport.pdf. A final version of the Joint FDA/FSIS risk assessment was released in September 2003. It included a number of revisions to and refinements of the draft assessment, but still classified both deli meats and unheated frankfurters as “Very High Risk.” See FSIS/FDA, Quantitative Assessment of the Relative Risk to Public Health from Foodborne Listeria Monocytogenes Among Selected Categories of Ready-to-Eat Foods (Sept. 2003) available at http://www.fda.gov/downloads/Food/FoodScienceResearch/UCM197330.pdf.

Response: The focus of the risk assessment was narrowed on the basis of available data. The available data on hotdogs was not sufficient to be included in a plant-to-table risk assessment. Moreover, deli meat was believed to be the vehicle in most listeriosis cases. From the 2003 FDA-FSIS Quantitative Assessment of the Risk of Listeriosis due to Selected Food Categories (FDA, 2003), the median number of cases of listeriosis per annum from deli meats was estimated to be 1598.7. For frankfurters (reheated and not reheated combined) the number of cases was estimated to be less than 31. For pâté and meat spreads, the estimated number of illnesses was less than 4, and for dry/semi-dry fermented sausages, the estimated number of illness was less than 0.1. Clearly, this document pointed to deli meats as the high-risk food category in 2003.

While FSIS is aware of the limitations of its model, the Agency has concluded that the model is adequate to inform decision-making based on the specific risk management questions posed by FSIS risk managers. A more detailed model would require additional data. The Agency noted in the final version of the risk assessment that the data available in the published literature on Listeria in the processing plant environment are limited. In addition to data limitations, the limited time available and the intended use of the model dictated other restrictions on the scope of the assessment. While the risk model addressed only food-contact surfaces as the source of contamination by Lm, the Agency's risk assessors acknowledged that Lm contamination could arise from inadequate lethality treatment or from cross-contamination from non-food contact surfaces. The risk assessment also made simplifying technical assumptions, such as those regarding a generic food-contact surface, the distribution of Listeria on the surface, and the assumption of a generic product lot.

The comment that the model excluded the effect of product testing, however, is not accurate. The in-plant model incorporated, in addition to food-contact surface testing, product testing and pre- and post-packaging interventions and the effect of growth inhibitors (or product reformulation). The risk assessment describes the role of product testing in the model and discusses the probability of detecting Lm in product samples and the contribution of information from such testing to the development of risk reduction measures.

FSIS is affirming the 2003 risk assessment without updates or changes.

Economic Impact; Effect on Small Establishments; Regulatory Reform

Comment: One commenter disagreed with the assessment team's finding that the interim final rule was not disproportionately affecting small establishments because the number of noncompliance records (NRs) that FSIS issued related to this rule to very small plants was twice that for large plants. Similarly, the commenter stated that FSIS issued more NRs to small plants than large. Another commenter stated that the assessment team's finding that FSIS issued most NRs to very small establishments evidences the need for a much stronger effort at compliance assistance to the small processor.

A few comments that were submitted in response to OMB's February 2004 solicitation of nominations for regulatory reform (69 FR 7987) argued that the Agency greatly underestimated the costs and overestimated the benefits of the interim final rule.

One commenter that responded to the OMB request asserted that the economic analysis of the interim final rule understated the costs to small businesses, particularly to small and very small processing plants, and overstated the benefits of the rule. The commenter noted that FSIS estimated the annual cost of the rule to the industry in the range of $16.6 million, and that benefits were in the range of $44 million to $154 million. However, the commenter estimated that the actual costs were closer to $115 million per year. The commenter charged that for each of the “10,000 plants” (sic) that are subject to the rule, the true costs are closer to $11,500 per year and over $1.15 billion over ten years. According to the commenter, the costs reflect the purchase of new equipment, reconfiguration of plant facilities, accumulated interest of $50,000 per plant, and estimated annual costs of $6,500 for testing to ensure compliance and for consultants. The grand total then would be $115,000 per plant.

The commenter asserted that the rule puts American firms at a competitive disadvantage with foreign firms, and that the burden of the rule is so great that some small and very small plants may cease operations.

The commenter did not present an alternative benefit estimate in dollar terms but asserted that FSIS based its estimates on data that the Centers for Disease Control and Prevention (CDC) gathered through 1997, while CDC data for 1996 to 2000 show a 38 percent decrease in incidence of, and mortality from, Lm. Also the commenter asserted on the basis of the Q&A provided with the 2003 FDA/FSIS joint risk assessment that FSIS used for the interim final rule that it is likely that the annual total cases were less than 1,500, with 300 deaths.

Another commenter recommended that FSIS review the compliance costs of the rule and increase the calculation of those costs to a more reasonable figure.

Response: The commenters misstated the regulatory impact analysis of the interim final rule on key points. For example, rather than 10,000 plants, as one commenter stated, the rule was estimated to affect 2,930 total Federal establishments. In actual fact, the rule affected 2,473 Federal establishments in 2006 and 2,307 Federal establishments in 2013. Thus, the comment, on that basis alone, increased the arguable costs of the rule.

The comment stated that the costs of new equipment, plant reconfiguration, testing, and outside expert technical assistance are a substantial burden on small plants that the Agency ignored in its analysis. However, the interim final rule did not require these plants to upgrade their operations. For this reason, such costs are not a direct effect of the rule. The regulatory impact analysis estimated that the vast majority of very small plants, such as the one submitting the comment, would use Alternative-3 type controls (sanitation only) to control Lm instead of changing from Alternative 3 to Alternative 2 or 1. Costs for Alternative 3 are minimal because it only requires an establishment to control Lm through its sanitation program. An establishment would not need to purchase new equipment for post-lethality treatment or apply antimicrobial agents. Comparing FSIS PHIS data of calendar year (CY) 2013 and the baseline in the 2003 interim final rule, the Agency found that about 77 percent of the small and very small establishments that used alternative 3 still use alternative 3.4 The percentage increases from the baseline to CY 2013 for small and very small establishments using Alternative 2b, Alternative 2a, and Alternative 1 are 17 percent, 1 percent and 1.5 percent, respectively. Therefore, the costs the small and very small establishments would incur would mostly be those attributable to initial and on-going compliance with the sanitation program requirements of the rule.

4 Note that the composition, and the relative statistics of the RTE establishments subject to this rule changed somewhat between 2003 and 2013, So the comparisons are approximate, not exact.

As to the benefit estimates in the economic analysis of the interim final rule, these were based on the potential risk reductions to be achieved through the adoption by industry of the Listeria control alternatives set out in 9 CFR 430.4. While the comment stated that the CDC data for 1996 to 2000 show a 38 percent decrease in incidence of, and mortality from, Lm, the comment did not take into account an “up spike” in listeriosis illness that occurred in 2002-2003 before the rule went into effect. Thus, when the rule was promulgated, there were a significantly higher number of illnesses to be averted than the comment considered. Finally, the benefit estimates in the interim final rule were based on the differences in the number of illnesses in the risk assessment model results under different scenarios. The risk assessment model estimated the number of illnesses using FSIS simulation models that assess how the in-plant contamination level transfers to the retail contamination level and then assessed the number of illnesses based on the dose-response relationship from the FDA/FSIS exposure retail-to-table model where all models were calibrated for deli meat.5

5 For details of these models, see footnote 3.

For these reasons, FSIS is affirming the basic conclusions reached by the Final Regulatory Impact Analysis that was submitted in support of the interim final rule.

Executive Orders 12866 and 13563, and the Regulatory Flexibility Act

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 potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “non-significant” regulatory action under section 3(f) of Executive Order (E.O.) 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget under E.O. 12866.

FSIS is affirming the basic conclusions reached by the Final Regulatory Impact Analysis that was submitted in support of the interim final rule. The two changes do not affect the basic conclusions reached by the Final Regulatory Impact Analysis that was submitted with the interim final rule. FSIS is making two changes in this document, making clear in the regulation that products that have been in contact with a Lm contaminated surface would be adulterated if not reprocessed (9 CFR 430.4(a)) and removing the requirement for establishments to report production volume and related information to FSIS because the Agency now routinely collects this information through PHIS (9 CFR 430.4(d)). Neither change will cause establishments to change their practices to comply with the regulation. Therefore, there is no need to conduct a cost or benefit analysis to affirm the interim final rule.

Regulatory Flexibility Act Assessment

The FSIS Administrator certifies that, for the purposes of the Regulatory Flexibility Act (5 U.S.C. 601-602), the rule will not have a significant economic impact on a substantial number of small entities in the United States.

Paperwork Reduction Act

There are no paperwork or recordkeeping requirements associated with this rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E-Government Act

FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq.) by, among other things, promoting the use of the Internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

Executive Order 12988

This rule has been reviewed under the Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” E.O. 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that 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.

FSIS has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, the Food Safety and Inspection Service will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

USDA Nondiscrimination Statement

No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

Send your completed complaint form or letter to USDA by mail, fax, or email:

Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

Fax: (202)690-7442.

Email [email protected].

Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202)720-2600 (voice and TDD).

Additional Public Notification

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

List of Subjects in 9 CFR Part 430

Food labeling, Meat inspection, Poultry and poultry products inspection.

For the reasons set forth in the preamble, FSIS is adopting as final the interim final rule that amended Title 9, Chapter III, of the Code of Federal Regulations and that was published at 68 FR 34208 on June 6, 2003, with the following amendments:

PART 430—REQUIREMENTS FOR SPECIFIC CLASSES OF PRODUCT 1. The authority citation for part 430 continues to read as follows: Authority:

7 U.S.C. 450; 7 U.S.C. 1901-1906; 21 U.S.C. 451-470, 601-695; 7 CFR 2.18, 2.53.

2. Amend § 430.4 by: a. Revising paragraph (a). b. Revising paragraph (b)(2)(iii)(B). c. Revising paragraph (b)(3)(i)(B). d. Revising paragraphs (b)(3)(ii)(B) and (C). e. Removing and reserving paragraph (d).

The revisions read as follows:

§ 430.4 Control of Listeria monocytogenes in post-lethality exposed ready-to-eat products.

(a) Listeria monocytogenes can contaminate RTE products that are exposed to the environment after they have undergone a lethality treatment. L. monocytogenes is a hazard that an establishment producing post-lethality exposed RTE products must control through its HACCP plan or prevent in the processing environment through a Sanitation SOP or other prerequisite program. RTE product is adulterated if it contains L. monocytogenes, or if it comes into direct contact with a food contact surface that is contaminated with L. monocytogenes. Establishments must not release into commerce product that contains L. monocytogenes or that has been in contact with a food contact surface contaminated with L. monocytogenes without first reworking the product using a process that is destructive of L. monocytogenes.

(b) * * *

(2) * * *

(iii) * * *

(B) Identify the conditions under which the establishment will implement hold-and-test procedures following a positive test of a food-contact surface for an indicator organism;

(3) * * *

(i) * * *

(B) Identify the conditions under which the establishment will implement hold-and-test procedures following a positive test of a food-contact surface for an indicator organism;

(ii) * * *

(B) During this follow-up testing, if the establishment obtains a second positive test for an indicator organism, the establishment must hold lots of product that may have become contaminated by contact with the food contact surface until the establishment corrects the problem indicated by the test result.

(C) In order to release into commerce product held under this section, the establishment must sample and test the lots for L. monocytogenes or an indicator organism using a sampling method and frequency that will provide a level of statistical confidence that ensures that each lot is not adulterated with L. monocytogenes. The establishment must document the results of this testing. Alternatively, the establishment may rework the held product using a process that is destructive of L. monocytogenes or the indicator organism.

Done, at Washington, DC: May 29, 2015. Alfred V. Almanza, Acting Administrator.
[FR Doc. 2015-13507 Filed 6-18-15; 8:45 am] BILLING CODE 3410-DM-P
FEDERAL HOUSING FINANCE AGENCY 12 CFR Part 1238 [No. 2015-N-04] Orders: Reporting by Regulated Entities of Stress Testing Results as of September 30, 2014 AGENCY:

Federal Housing Finance Agency.

ACTION:

Orders.

SUMMARY:

In this document, the Federal Housing Finance Agency (FHFA) provides notice that it issued Orders dated June 10, 2015, with respect to reporting under section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

DATES:

Effective June 19, 2015. Each Order is applicable beginning June 10, 2015.

FOR FURTHER INFORMATION CONTACT:

Naa Awaa Tagoe, Senior Associate Director, Office of Financial Analysis, Modeling and Simulations, (202) 649-3140, [email protected]; Stefan Szilagyi, Examination Manager, FHLBank Modeling, FHLBank Risk Modeling Branch, (202) 649-3515, [email protected]; or Mark D. Laponsky, Deputy General Counsel, Office of General Counsel, (202) 649-3054 (these are not toll-free numbers), [email protected] The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877-8339.

SUPPLEMENTARY INFORMATION: I. Background

FHFA is responsible for ensuring that the regulated entities operate in a safe and sound manner, including the maintenance of adequate capital and internal controls; that their operations and activities foster liquid, efficient, competitive, and resilient national housing finance markets; and that they carry out their public policy missions through authorized activities. See 12 U.S.C. 4513. This Order is being issued under 12 U.S.C. 4514(a), which authorizes the Director of FHFA to require by Order that the regulated entities submit regular or special reports to FHFA and establishes remedies and procedures for failing to make reports required by Order. The Order directs the Banks to use a revised public disclosure template for publicly disclosing the severely adverse stress testing scenario results as of September 30, 2014. The revised template replaces the template initially issued on November 14, 2014 and will enhance the transparency of each Bank's public disclosure.

II. Orders

For the convenience of the affected parties, the text of the Order, without the accompanying Summary Instructions and Guidance and appendices, follows below in its entirety. You may access this Order with all of the accompanying material from FHFA's Web site at: http://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Issues-Scenarios-and-Guidance-to-FannieMae,-Freddie-Mac-and-the-Federal-Home-Loan-Banks-Regarding-Annual-Dodd-Frank-St.aspx. The Order, new public disclosure template (Attachment 1), and Summary Instructions and Guidance will be available for public inspection and copying at the Federal Housing Finance Agency, Eighth Floor, 400 Seventh St. SW., Washington, DC 20024. To make an appointment, call (202) 649-3804.

The text of the Order is as follows:

Federal Housing Finance Agency Order No. 2015-OR-B-1 Supplemental Order on Reporting by Regulated Entities of Stress Testing Results as of September 30, 2014

Whereas, pursuant to the Federal Housing Finance Agency's (FHFA) regulation implementing section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act requiring each regulated entity to conduct stress tests to determine whether it has the capital necessary to absorb losses resulting from adverse economic conditions and report the results “in the manner and form established by FHFA,” 12 CFR 1238.5(b); and

Whereas, FHFA's rule implementing section 165(i)(2) of the Dodd-Frank Act is codified as 12 CFR part 1238 and requires that “[e]ach regulated entity must file a report in the manner and form established by FHFA,” 12 CFR 1238.5(b); and

Whereas, FHFA's regulation requires that each regulated entity “disclose publicly a summary of the stress test results for the severely adverse scenario,” 12 CFR 1238.7; and

Whereas, on November 14, 2014, FHFA issued to each regulated entity scenarios for stress testing as of September 30, 2014, and on December 1, 2014, issued Orders to each regulated entity together with Summary Instructions and Guidance with prescribed templates for completing, reporting, and disclosing the stress test results; and

Whereas, each Federal Home Loan Bank timely filed its report of stress test results on or before April 30, 2015, as required by 12 CFR 1238.5; and

Whereas, after analyzing the results of each Federal Home Loan Bank's stress testing and the methodologies and practices used therein, FHFA has determined that the original template designed for public disclosure of the summary of each Bank's severely adverse scenario results that accompanied the Orders of December 1, 2014, should be revised; and

Whereas, section 1314 of the Federal Housing Enterprises Financial Safety and Soundness Act, as amended, 12 U.S.C. 4514(a), authorizes the Director of FHFA to require regulated entities, by general or specific order, to submit such reports on their management, activities, and operations as the Director considers appropriate.

Now therefore, it is hereby Ordered as follows:

Each Federal Home Loan Bank shall publicly disclose and report, as required by 12 CFR part 1238, a summary of the severely adverse scenario results of its stress testing using the template provided herewith as the attachment entitled “FHLBank Dodd-Frank Stress Test Template—SEVERLY ADVERSE (Disclosure to the Public).”

It is so ordered, this 10th day of June 2015.

This Order is effective immediately.

Signed at Washington, DC, this 10th day of June, 2015.

Melvin L. Watt, Director, Federal Housing Finance Agency.
Dated: June 10, 2015. Melvin L. Watt, Director, Federal Housing Finance Agency. BILLING CODE 8070-01-P ER19JN15.001
[FR Doc. 2015-15194 Filed 6-18-15; 8:45 am] BILLING CODE 8070-01-C
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0266; Directorate Identifier 2015-NE-03-AD; Amendment 39-18185; AD 2015-12-10] RIN 2120-AA64 Airworthiness Directives; Pratt & Whitney Division Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all Pratt & Whitney Division (PW) PW6122A and PW6124A turbofan engines. This AD requires initial and repetitive borescope inspections (BSIs) of the high-pressure compressor (HPC) 7th stage integrally bladed (IB) rotor aft integral arm for cracks until replacement of the HPC 7th stage IB rotor using non-silver-plated nuts. This AD was prompted by reports of crack finds in the HPC 7th stage IB rotor. We are issuing this AD to prevent HPC 7th stage IB rotor fractures, which could lead to uncontained engine failure and damage to the airplane.

DATES:

This AD is effective July 6, 2015.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 6, 2015.

We must receive comments on this AD by August 3, 2015.

ADDRESSES:

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

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

Fax: 202-493-2251.

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

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

For service information identified in this AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; phone: 860-565-8770; fax: 860-565-4503. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0266.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0266; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We received reports of cracks in the PW6122A and the PW6124A HPC 7th stage IB rotor aft integral arm. The root cause is the presence of silver-plated nuts reacting with hot titanium in a high sulfur/high chlorine environment. This AD requires initial and repetitive BSIs of the HPC 7th stage IB rotor. This AD also requires, as terminating action, replacement of the HPC 7th stage IB rotor and HPC 7th stage IB rotor silver-plated nuts with non-silver-plated nuts. This condition, if not corrected, could result in HPC 7th stage IB rotor fractures. We are issuing this AD to prevent HPC 7th stage IB rotor fractures, which could lead to uncontained engine failure and damage to the airplane.

Related Service Information Under 1 CFR Part 51

We reviewed PW Engineering Authorization (EA) No. 15MM008, Revision A, dated March 24, 2015. We also reviewed PW Service Bulletin (SB) No. PW6ENG 72-46, dated March 5, 2015. The EA describes procedures for BSIs of the HPC 7th stage IB rotor aft integral arm for cracks using the split-case method. The SB describes removal and replacement of the HPC 7th stage IB rotor, removal of the HPC 7th stage IB rotor silver-plated nuts, and the installation of non-silver plated nuts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

FAA's Determination

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

AD Requirements

This AD requires initial and repetitive BSIs of the HPC 7th stage IB rotor. This AD also requires as terminating action to replace the HPC 7th stage IB rotor and HPC 7th stage IB rotor silver-plated nuts with non-silver-plated nuts.

FAA's Justification and Determination of the Effective Date

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

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-0266; Directorate Identifier 2015-NE-03-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

Costs of Compliance

We estimate that this AD will affect 0 engines installed on airplanes of U.S. registry. We also estimate that it would take about 8 hours per engine to comply with this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $0.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

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

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-12-10 Pratt & Whitney Division: Amendment 39-18185; Docket No. FAA-2015-0266; Directorate Identifier 2015-NE-03-AD. (a) Effective Date

This AD is effective July 6, 2015.

(b) Affected ADs

None.

(c) Applicability

This AD applies to all Pratt & Whitney Division (PW) PW6122A and PW6124A turbofan engines with high-pressure compressor (HPC) 7th stage integrally bladed (IB) rotor, part number (P/N) 5495637, installed.

(d) Unsafe Condition

This AD was prompted by reports of crack finds in the HPC 7th stage IB rotor. We are issuing this AD to prevent HPC 7th stage IB rotor fractures, which could lead to uncontained engine failure and damage to the airplane.

(e) Compliance

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

(1) Within 180 cycles after the effective date of this AD or within 6,500 cycles accumulated on the HPC 7th stage IB rotor, whichever occurs later, borescope inspect the HPC 7th stage IB rotor for cracks. Use Appendix 1, paragraphs 5 and 6 of PW Engineering Authorization 15MM008, Revision A, dated March 24, 2015, to do your inspection. Thereafter, repeat the inspection at every 1,000 cycles since last inspection.

(2) If any crack is detected on the HPC 7th stage IB rotor, then before further flight, replace the HPC 7th stage IB rotor with a part eligible for installation.

(f) Mandatory Terminating Action

(1) At the next shop visit after the effective date of this AD:

(i) Replace the affected HPC 7th stage IB rotor, P/N 5495637, with a new, zero-time, HPC 7th stage IB rotor, P/N 5495637, and

(ii) Remove the HPC 7th stage IB rotor silver-plated nuts, P/N 4301682, and replace with non-silver-plated nuts. Use the Accomplishment Instructions of PW Service Bulletin No. PW6ENG 72-46, dated March 5, 2015 to perform the removal and replacement.

(g) Definition

For the purposes of this AD an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges. The separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance, is not an engine shop visit.

(h) Alternative Methods of Compliance (AMOCs)

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

(i) Related Information

For more information about this AD, contact Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email: [email protected]

(j) Material Incorporated by Reference

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

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

(i) Pratt & Whitney Division (PW) Engineering Authorization No. 15MM008, Revision A, dated March 24, 2015.

(ii) PW Service Bulletin No. PW6ENG 72-46, dated March 5, 2015.

(3) For PW service information identified in this AD, contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; phone: 860-565-8770; fax: 860-565-4503.

(4) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

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

Issued in Burlington, Massachusetts, on June 9, 2015. Ann C. Mollica, Acting Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2015-14992 Filed 6-18-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0492; Directorate Identifier 2013-NM-134-AD; Amendment 39-18187; AD 2015-12-12] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. This AD was prompted by a report of two cases of heavy (hard to move) aileron control caused by aileron cables stuck in a clump of ice in the wheel bay. This AD requires installing drain tubes on the center wing rear spar. We are issuing this AD to prevent accumulated water near or on the aileron control cables, which could freeze and result in reduced control of the airplane.

DATES:

This AD becomes effective July 24, 2015.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 24, 2015.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0492; or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone: +31 (0)88-6280-350; fax: +31 (0)88-6280-111; email: [email protected]; Internet http://www.myfokkerfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0492.

FOR FURTHER INFORMATION CONTACT:

Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1137; fax: 425-227-1149.

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. The NPRM published in the Federal Register on August 4, 2014 (79 FR 45137). The NPRM was prompted by a report of two cases of heavy (hard to move) aileron control caused by aileron cables stuck in a clump of ice in the wheel bay. The NPRM proposed to require installing drain tubes on the center wing rear spar. We are issuing this AD to prevent accumulated water near or on the aileron control cables, which could freeze and result in reduced control of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2013-0140, dated July 12, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. The MCAI states:

Two cases have been reported of heavy aileron control caused by aileron cables stuck in a clump of ice in the wheel bay. Investigation results revealed that, in case of water accumulation on the top of the center wing torsion box inside the cabin (zones 171 and 172), the water drains through the existing drain holes/gaps in the web plates on top of the center wing rear spar. The water could then accumulate in the area where the aileron control cables are situated. With the freezing temperatures normally encountered during flight, ice accretion could occur near or even on the aileron control cables.

This condition, if not corrected, could result in reduced control of the aeroplane.

For the reasons described above, this [EASA] AD requires the installation of drain tubes on the center wing rear spar.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0492-0002. Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 45137, August 4, 2014) or on the determination of the cost to the public.

Conclusion

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 45137, August 4, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 45137, August 4, 2014).

Related Service Information Under 1 CFR Part 51

Fokker Services B.V. has issued Fokker Service Bulletin SBF100-51-021, dated April 23, 2013, including the following attachments:

• Fokker Parts List Local SB10051021-XU-B, Revision A, Sequence 1, dated April 10, 2013.

• Fokker Parts List Supply SB10051021-XU-B, Revision A, Sequence 1, dated April 10, 2013.

• Fokker Parts List Local SB10051021-XU-A, Revision B, Sequence 1, dated April 10, 2013.

• Fokker Parts List Supply SB10051021-XU-A, Revision B, Sequence 1, dated April 10, 2013.

• Fokker Manual Change Notification MCNM F100-160, dated April 23, 2013.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

Costs of Compliance

We estimate that this AD affects 4 airplanes of U.S. registry.

We also estimate that it will take about 8 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $1,380 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $8,240, or $2,060 per product.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0492; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone: 800-647-5527) is in the ADDRESSES section.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-12-12 Fokker Services B.V.: Amendment 39-18187. Docket No. FAA-2014-0492; Directorate Identifier 2013-NM-134-AD. (a) Effective Date

This AD becomes effective July 24, 2015.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes, certificated in any category, all serial numbers.

(d) Subject

Air Transport Association (ATA) of America Code 51, Standard Practices/Structures.

(e) Reason

This AD was prompted by a report of two cases of heavy (difficult to move) aileron control caused by aileron cables stuck in a clump of ice in the wheel bay. We are issuing this AD to prevent accumulated water near or on the aileron control cables, which could freeze and result in reduced control of the airplane.

(f) Compliance

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

(g) Modification

Within 36 months after the effective date of this AD, install water drain tubes on the center wing rear spar, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-51-021, dated April 23, 2013, including the attachments identified in paragraphs (g)(1) through (g)(5) of this AD.

(1) Fokker Parts List Local SB10051021-XU-B, Revision A, Sequence 1, dated April 10, 2013.

(2) Fokker Parts List Supply SB10051021-XU-B, Revision A, Sequence 1, dated April 10, 2013.

(3) Fokker Parts List Local SB10051021-XU-A, Revision B, Sequence 1, dated April 10, 2013.

(4) Fokker Parts List Supply SB10051021-XU-A, Revision B, Sequence 1, dated April 10, 2013.

(5) Fokker Manual Change Notification MCNM F100-160, dated April 23, 2013.

(h) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1137; fax: 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Fokker Services B.V.'s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

(i) Related Information

Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2013-0140, dated July 12, 2013, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0492-0002.

(j) Material Incorporated by Reference

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

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

(i) Fokker Service Bulletin SBF100-51-021, dated April 23, 2013, including the attachments identified in paragraphs (j)(2)(i)(A) through (j)(2)(i)(E) of this AD.

(A) Fokker Parts List Local SB10051021-XU-B, Revision A, Sequence 1, dated April 10, 2013.

(B) Fokker Parts List Supply SB10051021-XU-B, Revision A, Sequence 1, dated April 10, 2013.

(C) Fokker Parts List Local SB10051021-XU-A, Revision B, Sequence 1, dated April 10, 2013.

(D) Fokker Parts List Supply SB10051021-XU-A, Revision B, Sequence 1, dated April 10, 2013.

(E) Fokker Manual Change Notification MCNM F100-160, dated April 23, 2013.

(ii) Reserved.

(3) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone: +31 (0)88-6280-350; fax: +31 (0)88-6280-111; email: [email protected]; Internet http://www.myfokkerfleet.com.

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

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

Issued in Renton, Washington, on June 10, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2015-14994 Filed 6-18-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Part 744 [Docket No. 140429382-4382-01] RIN 0694-AG16 Addition of Certain Persons to the Entity List Correction

In rule document 2014-17196, beginning on page 42452 in the issue of Tuesday, July 22, 2014, make the following correction:

Supplement No. 4 to Part 744—Entity List [Corrected]

On page 42458, in Supplement No. 4 to Part 744, in the table, beginning with the row in which the entry in the first column reads “UKRAINE”, the table should appear as follows:

UKRAINE *         *         *         *         *         * Donetsk People's Republic, Donetsk Region, Ukraine For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 79 FR [INSERT FR PAGE NUMBER] 7/22/14. *         *         *         *         *         * Feodosiya Enterprise, a.k.a., the following four aliases: For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 79 FR [INSERT FR PAGE NUMBER] 7/22/14. Feodosia Oil Products Supply Co.; and —Feodosiya Enterprise on Providing Oil Products; and —Feodosiyske Company for the Oil; and —Theodosiya Oil Terminal. Feodosiya, Geologicheskaya str. 2, Crimea 98107, Ukraine; and Feodosia, Str. Geological 2, Crimea 98107, Ukraine (See alternate addresses under Crimea (Occupied)). *         *         *         *         *         * Luhansk People's Republic, a.k.a., the following two aliases: For all items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial 79 FR [INSERT FR PAGE NUMBER] 7/22/14. —Lugansk People's Republic —People's Republic of Luhansk. Luhansk Region, Ukraine. *         *         *         *         *         * *         *         *         *         *         *         *
[FR Doc. C1-2014-17196 Filed 6-18-15; 8:45 am] BILLING CODE 1505-01-D
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 50 CFR Part 300 [Docket No. 140724618-5506-02] RIN 0648-BE41 Pacific Halibut Fisheries; Revisions to Charter Halibut Fisheries Management in Alaska AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations that revise Federal regulations regarding sport fishing guide services for Pacific halibut in International Pacific Halibut Commission Regulatory Areas 2C (Southeast Alaska) and 3A (Central Gulf of Alaska). The regulations remove the requirement that a guided sport (charter) vessel guide be on board the same vessel as a charter vessel angler to meet the definition of providing sport fishing guide services. This final rule clarifies that all sport fishing for halibut in which anglers receive assistance from a compensated guide would be managed under charter fishery regulations, and all harvest (except halibut harvested under the Guided Angler Fish Program) would accrue toward charter allocations. This final rule aligns Federal regulations with State of Alaska regulations. This final rule makes additional minor changes to the regulatory text pertaining to the charter halibut fishery to maintain consistency in the regulations with these new definitions. This action is necessary to achieve the halibut fishery management goals of the North Pacific Fishery Management Council.

DATES:

Effective July 20, 2015.

ADDRESSES:

Electronic copies of the Categorical Exclusion and the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for this action are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. A Final Regulatory Flexibility Analysis (FRFA) was prepared and is included in the Classification section of this final rule.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS at the above address and by email to [email protected] or fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT:

Julie Scheurer, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS published a proposed rule for this action in the Federal Register on December 3, 2014 (79 FR 71729), and public comments were accepted through January 2, 2015.

Authority for Action

The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus stenolepis) through regulations established under authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC adopts regulations governing the Pacific halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). For the United States, regulations developed by the IPHC are subject to acceptance by the Secretary of State with concurrence from the Secretary of Commerce. After acceptance by the Secretary of State and the Secretary of Commerce, NMFS publishes the IPHC regulations in the Federal Register as annual management measures pursuant to 50 CFR 300.62. The final rule implementing IPHC regulations for the 2015 fishing season published on March 17, 2015 (80 FR 13771). IPHC regulations affecting sport fishing for halibut and vessels in the charter fishery in Areas 2C and 3A may be found in sections 3, 25, and 28 of that final rule.

The Halibut Act, at sections 773c(a) and (b), provides the Secretary of Commerce with general responsibility to carry out the Convention and the Halibut Act. In adopting regulations that may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act, the Secretary of Commerce is directed to consult with the Secretary of the department in which the U.S. Coast Guard is operating, currently the Department of Homeland Security.

The Halibut Act, at section 773c(c), also provides the North Pacific Fishery Management Council (Council) with authority to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations. Regulations developed by the Council may be implemented by NMFS only after approval by the Secretary of Commerce. The Council has exercised this authority in the development of subsistence halibut fishery management measures, and sport halibut fishery management measures in Convention waters off Alaska, codified at 50 CFR 300.61, 300.65, 300.66, and 300.67. The Council also developed the Individual Fishing Quota Program for the commercial halibut fishery, codified at 50 CFR part 679, under the authority of section 773 of the Halibut Act.

Background

This final rule aligns Federal regulations for charter halibut fishing with State of Alaska regulations for sport fishing to clarify the Council's and NMFS' intent for management of charter halibut fisheries in Areas 2C and 3A in Convention waters off Alaska. The regulatory clarifications also will facilitate enforcement and clarify recordkeeping and reporting requirements for the charter halibut fishery. This final rule does not revise regulations for unguided sport halibut fishing in Alaska found in sections 3, 25, and 28 of the IPHC annual management measures; however, the 2015 IPHC annual management measures for charter halibut fishing were modified to maintain consistency with this final rule. A general description of the halibut fisheries in Alaska was provided in the proposed rule for this action (79 FR 71729, December 3, 2014) and is briefly summarized here.

Description of Halibut Fisheries

Sport fishing activities for Pacific halibut in Areas 2C and 3A are subject to different regulations, depending on whether those activities are guided or unguided. Guided sport fishing for halibut is subject to charter restrictions under Federal regulations. These regulations apply if a charter vessel guide is providing assistance for compensation, or sport fishing guide services, to an angler during a fishing trip. Unguided anglers typically use their own vessels and equipment, or they may rent a vessel and fish with no assistance from a guide.

The charter halibut fisheries in Areas 2C and 3A are managed under the Charter Halibut Limited Access Program (CHLAP) and the Catch Sharing Plan (CSP). The CHLAP limits the number of operators in the charter fishery, while the CSP establishes annual allocations to the charter and commercial fisheries and describes a process for determining annual management measures to limit charter harvest to the allocations in each management area. The proposed rule and Section 1.3 of the RIR/IRFA prepared for this action provide additional detail on the charter halibut management programs that have been implemented in Areas 2C and 3A.

The CHLAP established Federal charter halibut permits (CHPs) for operators in the charter halibut fishery in Areas 2C and 3A. Since 2011, all vessel operators in Areas 2C and 3A with charter anglers on board must have an original, valid permit on board during every charter vessel fishing trip on which Pacific halibut are caught and retained. CHPs are endorsed for the appropriate regulatory area and the number of anglers that may catch and retain halibut on a charter vessel fishing trip. Complete regulations for the CHLAP are published at §§ 300.65, 300.66, and 300.67.

The CSP established sector allocations that vary proportionally with changing levels of annual halibut abundance and that balance the differing needs of the charter and commercial halibut fisheries over a wide range of halibut abundance in each area. The CSP describes a public process by which the Council develops recommendations to the IPHC for charter angler harvest restrictions that are intended to limit harvest to the annual charter halibut fishery catch limit in each area. The CSP also authorizes limited annual leases of commercial individual fishing quota for use in the charter fishery as guided angler fish (GAF). GAF authorizes individual charter operators in Area 2C and Area 3A to offer anglers the opportunity to retain additional halibut when charter vessel anglers are subject to a more restrictive daily harvest limit than unguided sport anglers in the same area. Complete regulations for the CSP are published at §§ 300.65 and 300.66. Additional detail on the development and rationale for the CSP can be found in the final rule implementing the program (78 FR 75844, December 12, 2013).

Each year, based on recommendations from the Council, the IPHC annually adopts charter halibut management measures designed to keep charter harvest in Area 2C and Area 3A to the catch limits specified under the CSP. Once accepted by the Secretary of State with the concurrence of the Secretary of Commerce, NMFS publishes in the Federal Register the charter halibut management measures for each area as part of the IPHC annual management measures. The 2015 IPHC annual management measures were published on March 17, 2015 (80 FR 13771).

The Alaska Department of Fish and Game (ADF&G) monitors and estimates charter halibut harvests using the Saltwater Charter Logbook (hereafter, logbook). The logbook is the primary reporting requirement for operators in the charter fisheries for all species harvested in saltwater in Areas 2C and 3A. Logbook data are compiled to show where fishing occurs, the extent of participation, and the species and the numbers of fish caught and retained by individual charter anglers. This information is essential to estimate harvest for regulation and management of the charter halibut fisheries in Areas 2C and 3A. ADF&G collects logbook information from charter vessel guides on halibut harvested by charter vessel anglers to accommodate the information requirements for implementing and enforcing Federal charter halibut fishing regulations, such as daily bag limits and the CHLAP.

Purpose of This Final Rule

This final rule is primarily intended to clarify that (1) compensated assistance to an angler to catch halibut during a fishing trip will be managed under Federal charter fishery regulations, whether or not the person providing that compensated assistance is on board the vessel with the angler, and (2) halibut harvested by an angler receiving compensated assistance will accrue toward charter allocations. These clarifications are necessary to apply Federal charter fishing regulations to a small number of businesses that offer services in which guides provide assistance to halibut anglers for compensation, from adjacent vessels or shore. Under previous Federal regulations, a person providing assistance to an angler during a fishing trip, and who was not on board the vessel with the angler, was not providing sport fishing guide services. As a result, an operator was not required to have a CHP on board the vessel, as required by the CHLAP regulations at § 300.67, if the compensated assistance provided to an angler during a fishing trip was by a person who was not on board the vessel with the angler. In addition, an angler receiving assistance during the fishing trip from a guide that was not on board the vessel with the angler was not subject to regulations that limit a guided angler to more restrictive daily bag and size limits that are intended to limit charter harvest to allocations specified by the Council's CSP for Area 2C and Area 3A.

In recommending the revisions to Federal regulations implemented by this final rule, the Council specified that providing compensated assistance to an angler from an adjacent vessel or from the shore is a de facto form of charter fishing and should be managed under charter fishing regulations. A guide who is not on the same vessel with an angler and who provides assistance for compensation to an angler will be included in the definition of sport fishing guide services under this final rule. The Council was concerned that guide-assisted sport fishing services might increase if no action was taken to define these fishing activities as charter fishing.

This final rule also implements regulations recommended by the Council clarifying that halibut harvests by an angler receiving compensated assistance from a person not on board the vessel with the angler (except GAF, which is an alternative use of commercial halibut individual fishing quota) should accrue to the charter sector allocation under the CSP. This final rule clarifies logbook reporting requirements and will improve harvest estimates by aligning the Federal and State definitions of sport fishing guide services so that halibut harvested by an angler who receives compensated assistance are required to be recorded in the logbook, whether the person providing the assistance is physically present on board the vessel or not. Aligning State and Federal definitions of sport fishing guide services will provide the public with clear and consistent management between management agencies.

Regulations Implemented by This Final Rule

This final rule aligns Federal regulatory text regarding sport fishing guide services for Pacific halibut with State regulations in a manner that is consistent with the Council's intent for management of charter halibut fisheries. The revisions will enhance enforcement of sport fishing regulations by an authorized officer by clearly defining when a person is providing sport fishing guide services. This regulatory clarity will also aid anglers and operators providing sport fishing guide services to comply with regulations for the charter halibut fisheries.

This final rule implements clear and consistent regulations that apply to all businesses providing, and all anglers receiving, sport fishing guide services. This final rule will improve the accuracy of the data collected on sport fishing harvest. Specifically, this final rule requires anglers receiving sport fishing guide services, whether or not a charter vessel guide is on board, to comply with the restrictions in place for charter vessel anglers. This final rule requires businesses that provide sport fishing guide services for halibut from separate vessels to obtain CHPs for the vessels on which the anglers are fishing and comply with the restrictions in place for the charter halibut fishery. This final rule does not increase the number of CHPs issued under the CHLAP.

As described in the proposed rule and in Section 1.2 of the RIR/IRFA, this final rule is intended only to address fishing activities for the charter halibut sector, not businesses that provide equipment for unguided (or self-guided) sport fishing. The proposed rule provided a detailed description of the proposed regulatory changes and a brief summary is provided in the following sections. This final rule implements three categories of regulatory changes: (1) Revisions to definitions at § 300.61; (2) revisions to CHLAP and CSP regulations; and (3) other regulatory revisions. The last section describes changes made to the 2015 IPHC annual management measures to aid the implementation of this rule.

Revisions to Definitions at § 300.61

Most critically, this final rule revises the definition of “sport fishing guide services,” and adds definitions for “compensation” and “charter vessel” at § 300.61. This final rule also makes technical revisions to the definitions of “charter vessel angler,” “charter vessel fishing trip,” “charter vessel guide,” and “charter vessel operator” at § 300.61 for added clarity and consistency among definitions. These changes are described in detail in Section 2.7 of the RIR/IRFA and in the proposed rule for this action.

The revision to the definition of “sport fishing guide services” removes the requirement that a charter vessel guide be on board the same vessel as the charter vessel angler. This final rule also revises the definition to clarify that services provided by a crew member working directly under the supervision of, and on the same vessel as, a charter vessel guide are not sport fishing guide services for purposes of CHLAP and CSP regulations. This revision clarifies the Council's and NMFS' intent that crew member services will continue to be excluded from the definition of sport fishing guide services for purposes of CHLAP and CSP regulations, to clearly identify that the charter vessel guide, and not a crew member, is the person responsible for complying with the regulations.

The definition of sport fishing guide services in this final rule includes the phrase “accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip.” This phrase is consistent with the State definition for sport fishing guide services. The Federal definition of charter vessel fishing trip at § 300.61 specifies that a charter vessel fishing trip begins when fishing gear is first deployed into the water and ends when one or more charter vessel anglers or any halibut are offloaded from that vessel. The proposed rule and Section 1.3.6 of the RIR/IRFA provides additional detail on this revision to the definition of sport fishing guide services.

This final rule adds a definition for “compensation” to § 300.61 that matches the State's definition (5 AAC 75.995(b)). The Council and NMFS intend for sport fishing for halibut to be considered charter fishing for halibut only if a person providing assistance to a sport angler is receiving compensation. This final rule defines compensation as, “direct or indirect payment, remuneration, or other benefits received in return for services, regardless of the source . . . `benefits' includes wages or other employment benefits given directly or indirectly to an individual or organization, and any dues, payments, fees, or other remuneration given directly or indirectly to a fishing club, business, organization, or individual who provides sport fishing guide services; and does not include reimbursement for the actual daily expenses for fuel, food, or bait.” This definition of compensation also means that payments made by a third party, and non-monetary exchanges of goods and services for taking someone halibut fishing, may also be considered compensation, as well as payments or non-monetary exchanges from a person aboard the charter vessel. The Federal definition does not consider reimbursement for “actual” daily expenses (e.g., bait, fuel, food) to be compensation as explained in the proposed rule and Section 1.3.6.2 of the RIR/IRFA.

This final rule adds a definition for “charter vessel” to Federal regulations at § 300.61. A charter vessel is defined as “a vessel used while providing or receiving sport fishing guide services for halibut.” Under this definition, a charter vessel guide will not be required to be on board the same vessel as the charter vessel angler to be providing sport fishing guide services. If an angler receives sport fishing guide services during a charter vessel fishing trip (i.e., the time between when gear is deployed and when one or more charter anglers or any harvested halibut are offloaded), even if it is from an adjacent or nearby vessel, that angler would be considered to be fishing from a charter vessel.

Under State of Alaska regulations (5 AAC 75.075), charter vessels are required to be registered with the State and are issued identification decals and logbooks. Under this final rule, all charter vessels, including those that will not have charter vessel guides on board, will need to register with the State, display the charter vessel decal while operating as a charter vessel, and have the logbook on board during all charter vessel fishing trips. Each charter vessel from which an angler may catch and retain halibut will also need to have an original CHP on board during charter vessel fishing trips.

Revisions to CHLAP and CSP Regulations

The primary responsibility for compliance with charter halibut fishery CHLAP and CSP regulations will continue to be with the charter vessel guide. However, some Federal regulations governing the charter halibut fishery put the burden of compliance on the charter vessel operator. Under this final rule, if no charter vessel guide is on board the vessel with the charter anglers, the charter vessel operator could also be a charter vessel angler. To facilitate compliance in these instances, this final rule implements regulations at § 300.66(s) and (v) to hold the charter vessel operator and the charter vessel guide jointly or severally responsible for compliance with the requirement to have a valid CHP and a logbook on board the charter vessel with the charter vessel anglers if no charter vessel guide is on board the vessel with the charter anglers. If the charter vessel guide is on a separate vessel, or on the shore, the charter vessel operator will be the person on board the charter vessel with the angler (hereafter, “angler vessel”) that could be held jointly responsible with the charter vessel guide to ensure that a valid CHP and the logbook are on the angler vessel. An authorized officer will evaluate the specific circumstances of a fishing trip to determine whether to hold the charter vessel operator and the charter vessel guide jointly or severally responsible for compliance with the requirement to have a valid CHP and a logbook on board the vessel.

Charter vessel guides will remain responsible for complying with the CHLAP and CSP reporting requirements at § 300.65(d), and the person whose business was assigned a logbook will remain responsible for ensuring that the charter vessel guide complies with those requirements. This final rule also implements regulations at § 300.65(d) to require that the logbook remain on the charter vessel with the anglers during the charter vessel fishing trip, even if the guide is on a separate vessel or on shore.

When halibut are retained by charter vessel anglers, the charter vessel guide will remain responsible under regulations at § 300.65(d) for completing the remainder of the logbook data fields by the end of the calendar day, or by the end of the charter vessel fishing trip, whichever comes first. The charter vessel guide is also responsible for ensuring that charter vessel anglers who retained halibut sign the logbook.

Under this final rule, charter vessel guides will remain responsible for complying with the provisions of the GAF program at § 300.65. A GAF permit authorizes a charter vessel angler to retain GAF, and GAF permits are assigned to a single CHP. This final rule implements regulations at § 300.65(c)(5)(iii)(A)(5), to require the guide maintain control of a legible copy of the GAF permit to enable an authorized officer to verify that any GAF retained on the charter vessel were authorized by a valid GAF permit. As described above, regulations at § 300.65(d) require that the CHP and logbook remain on the same charter vessel as the charter vessel anglers.

Regulations at § 300.65(c)(5)(iv)(G) require that upon retention of a GAF halibut, the guide must immediately remove the upper and lower tips of the tail fin lobes to mark and identify that fish as a GAF halibut. This final rule adds a requirement that the guide must be physically present when the GAF is harvested to mark the fish. NMFS anticipates that charter vessel anglers without a guide on board will need to summon the guide (e.g., by cell phone or radio) to be in proximity of the charter vessel before any GAF are harvested. Regulations at § 300.65(d)(4)(iii)(A)(1) require the charter vessel guide to immediately measure and record the total length of the GAF halibut in the GAF permit log on the back of the GAF permit. This final rule does not change this requirement, but adds a reference at § 300.65(d)(4)(iii)(A)(1) to an additional requirement at § 300.65(d)(4)(iii)(A)(5) that the charter vessel guide must immediately record in the logbook the GAF permit number under which the GAF was caught and retained, and the number of GAF retained by the charter vessel angler who caught and retained GAF, if GAF are retained on a charter vessel without a guide on board. The term “immediately,” for enforcement purposes, means that the stated activity (e.g., marking the fish or recording the GAF in the logbook) must occur before the guide or angler moves on to another activity or resume fishing. For example, if a charter vessel angler harvests a GAF, the guide will need to mark and record it before the angler could continue fishing, or transit to another location. If the guide cannot be physically present at the time the GAF is caught, the charter vessel angler will not be authorized to retain that fish.

Regulations at § 300.65(d)(4)(iii)(B) through (E) require a charter vessel guide to electronically report GAF harvests at the end of a charter vessel fishing trip in which GAF is retained. This rule does not revise these regulations and the charter vessel guide will continue to be responsible for electronically reporting GAF harvests.

Regulations at § 300.65(c)(5)(iv)(G) require that if GAF halibut are filleted on board a charter vessel, the carcasses of those GAF halibut must be retained until the end of the charter vessel fishing trip to enable an authorized officer to verify the recorded lengths. This final rule revises CSP regulations at § 300.65(c)(5)(iv)(G) to specify that if any GAF are harvested and filleted on board the charter vessel, those carcasses will also need to be retained on the charter vessel on which the GAF halibut were harvested until the end of the charter vessel fishing trip. In other words, if GAF halibut were harvested on a charter vessel without a guide on board, it will need to stay on the vessel with the angler who harvested it until the end of the fishing trip; it may not be transferred to the vessel that the guide is on for filleting, storage, or otherwise. Similarly, the 2015 IPHC annual management measures at section 28(2)(d) and 28(3)(d) require that the carcasses of size-restricted halibut harvested in the charter fishery in Areas 2C and 3A be retained, if those size-restricted halibut are filleted on board the charter vessel. This final rule adds the same carcass retention requirement to Federal regulations at § 300.65(d)(5) and, once implemented, could be removed from the IPHC annual management measures in future years.

Other Regulatory Changes

Charter vessel guides, operators, and crew are prohibited from harvesting halibut in Areas 2C and 3A during charter vessel fishing trips under regulations at § 300.65(d)(3). Under this final rule, the charter vessel operator could potentially be a charter vessel angler who is operating a vessel without a charter vessel guide onboard (e.g., the charter vessel guide is on a separate vessel). The Council and NMFS do not intend to prohibit charter vessel anglers who are operating charter vessels without a charter vessel guide onboard from harvesting halibut. Therefore, this final rule revises § 300.65(d)(3) to specify that “a charter vessel guide, charter vessel operator, or crew member may not catch and retain halibut during a charter vessel fishing trip in Commission regulatory area 2C or 3A, except that charter vessel operators who are charter vessel anglers may catch and retain halibut during a charter vessel fishing trip if the charter vessel guide is on a separate charter vessel.”

This final rule makes minor additional changes to regulations at §§ 300.61, 300.65, 300.66, and 300.67 to maintain existing regulatory responsibilities applicable to specific persons and ensure consistency in the charter halibut regulations to meet the intent of this final rule. These changes and the rationale for them are outlined in detail in the proposed rule and in Section 2.7 of the RIR/IRFA for this action and are briefly summarized here.

On January 1, 2015, several Alaska Statutes (A.S. 16.40.260 through 16.40.299) pertaining to sport fishing business and guide licensing and reporting through ADF&G expired. For 2015, there is no ADF&G guide license, fee, or insurance requirement; however, guides are still required to register with ADF&G and to hold an Alaska business license. State of Alaska vessel registration and logbook requirements still apply in 2015. This final rule implements revisions to Federal regulations at § 300.65(d)(4)(ii)(B)(1) and (d)(4)(ii)(D)(4), the definition of “charter vessel guide” at § 300.61, and § 300.67(a)(1) to refer to ADF&G sport fishing guide “licenses or registrations.” NMFS is retaining the word “licenses” in regulations because draft legislation has been submitted to the Alaska State Legislature to reinstate the sport fishing business and guide licensing statutes for future years.

Regulations at § 300.66(h) prohibit subsistence fishing for halibut while commercial fishing or sport fishing. The regulation was intended to prohibit only subsistence fishing for halibut and commercial or sport fishing for halibut from the same vessel on the same day. This final rule revises the prohibition at § 300.66(h) to clarify that it only prohibits subsistence fishing for halibut while commercial or sport fishing for halibut.

IPHC Annual Management Measures

The proposed rule (79 FR 71729, December 3, 2014) and Section 2.7 of the RIR/IRFA (see ADDRESSES) for this action described several changes to the IPHC Annual Management Measures that NMFS recommended for consistency among regulations, to improve compliance, and to facilitate enforcement. The IPHC convened in January 2015 and approved NMFS' recommendations. The 2015 IPHC Annual Management Measures were published on March 17, 2015 (80 FR 13771) and reflect the following changes for consistency with this final rule:

(1) Minor technical revisions to management measures at sections 3(1)(c), 28(2)(c), and 28(3)(e) to maintain consistency with revisions to the Federal definition of “charter vessel” and with State of Alaska sport fishing regulations.

(2) Revised section 25(7) to clarify that the charter vessel guide shall be held liable for any violations of annual management measures committed by an angler on a charter vessel, whether the guide is on board the vessel with the angler or on a separate vessel.

(3) Added management measures to section 28(1) to require that all halibut retained by a charter vessel angler remain on the vessel on which they were caught until the end of the charter vessel fishing trip. This revision will facilitate enforcement of daily bag and possession limits by prohibiting anglers on a charter vessel without a guide on board from transferring their harvested halibut to the guide's vessel for processing.

Changes From the Proposed Rule

Four minor changes were made to paragraphs (c)(5)(iii)(A)(5) and (c)(5)(iv)(A) of § 300.65 for consistency in wording. These paragraphs describe on which vessel the GAF permit and CHP must be held, depending on whether or not a guide is onboard. In the proposed rule, the language referring to the GAF permit was inconsistent. In one instance it referred to “a legible copy of a GAF permit,” in another it referred to simply “the GAF permit,” and in paragraph (c)(5)(iv)(A) it referred to a “valid GAF permit.” This language has been standardized for consistency in all instances to read “a legible copy of a valid GAF permit.”

Comments and Responses

The proposed rule for this action was published on December 3, 2014 (79 FR 71729), and public comments on it were accepted until January 2, 2015. NMFS received 8 comment submissions containing 10 unique comments. No comment resulted in a change to the regulatory text from the proposed rule. NMFS summarized and responded to the comments as follows:

Comment 1: The commenter disagrees with the proposed regulations at § 300.66(s) and (v) to hold the charter vessel operator and the charter vessel guide jointly or severally responsible for ensuring that a valid CHP and a logbook are on board the charter vessel with the charter vessel anglers if no charter vessel guide is on board the vessel with the charter anglers. The commenter recommends that, similar to charter halibut operations in which the guide is on board the charter vessel, only the charter vessel guide is responsible for ensuring that the CHP and logbook are on the charter vessel. Considering that enforcement staff would still need to find the charter vessel guide in the case of a violation if he or she is jointly responsible, making the charter vessel angler responsible seems both infeasible and unnecessary.

Response: In the proposed rule for this action, NMFS discussed the rationale for holding the guide, the operator, or both parties responsible for compliance with certain regulations when charter fishing without a guide onboard. In most instances the primary responsibility for compliance with charter halibut fishery regulations is with the charter vessel guide. However, the Federal regulations at § 300.66(s) and (v) put the burden of compliance on the charter vessel operator to have a valid CHP and logbook on board the vessel with the anglers.

The CHP and logbook are critical enforcement tools used by an authorized officer to verify when anglers are on a charter vessel fishing trip and subject to CHLAP, CSP, and other restrictions applicable to charter vessel anglers. If the charter vessel guide is on a separate charter vessel or on the shore, or is not in the vicinity of the charter vessel with anglers aboard (i.e., “angler vessel”), an authorized officer must be able to identify a person on board the angler vessel that is responsible for ensuring that a valid CHP and the logbook are on the vessel to authorize that charter vessel fishing trip. If the charter vessel guide is on a separate vessel, or on the shore, the charter vessel operator should be the person on board the angler vessel that could be held jointly responsible with the charter vessel guide to ensure that a valid CHP and the logbook are on the angler vessel. NMFS notes that enforcement of this provision will depend on the circumstances of a fishing trip. Authorized officers will evaluate the specific circumstances to determine whether to hold the charter vessel operator and the charter vessel guide jointly or severally responsible for compliance with the requirement to have a valid CHP and a logbook on board the vessel.

Charter vessel guides will remain responsible for complying with the CHLAP and CSP reporting requirements at § 300.65(d), and the person whose business was assigned a logbook remains responsible for ensuring that the charter vessel guide complies with those requirements. Before a charter vessel fishing trip begins, the charter vessel guide is required to record in the logbook the first and last names and license numbers of each charter vessel angler who will fish for halibut (exceptions apply for youth, senior, and disabled charter vessel anglers); ensure that the cover of the logbook lists the person named on the CHP(s) and the CHP number(s) being used during that charter vessel fishing trip; and ensure the name and State-issued vessel registration (AK number) or U.S. Coast Guard documentation number of the charter vessel is listed. This final rule implements regulations at § 300.65(d) to require that the logbook remain on the charter vessel with the anglers during the charter vessel fishing trip, even if the guide is on a separate vessel or on shore. With this change, an authorized officer will be able to verify that all anglers are licensed and listed in the logbook, and that the angler endorsement on the CHP has not been exceeded.

NMFS notes that the regulations at § 300.66(s) and (v) are consistent with the IPHC annual management measure at section 25(7) which states, “The operator of a charter vessel shall be liable for any violations of these Regulations committed by an angler on board said vessel. In Alaska, the charter vessel guide, as defined in § 300.61 and referred to in §§ 300.65, 300.66, and 300.67, shall be liable for any violation of these Regulations committed by an angler on board a charter vessel.”

Comment 2: NMFS proposed to define sport fishing guide services as “accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip.” The term “physically directing” is not defined and may be difficult to interpret by both charter guides and NOAA Office of Law Enforcement staff. For example, it is unclear whether providing a chart or GPS coordinates identifying specific fishing locations or contacting a guide or lodge owner for instructions via cell phone or UHF radio would be considered “physically directing.”

Response: Section 1.3.6 of the RIR/IRFA describes that the Council and NMFS contemplated identifying a list of activities that would qualify as “physically directing” under this action. The Council concluded, and NMFS agrees, that defining assistance as “accompanying or physically directing the sport fisherman in sport fishing activities” eliminates the need to list all potential activities that could be considered as providing assistance to an angler. This is consistent with the State of Alaska's definition that does not specifically define “physically directing” as it is used in the definition for “sport fishing guide service” (5 AAC 75.995(a)(42)). One goal of this final rule is to align State and Federal regulations for consistency and improved compliance.

The commenter notes that it is unclear whether providing a chart or GPS coordinates or contacting a guide or lodge owner for instructions via cell phone or UHF radio would be considered “physically directing.” While “physically directing” could imply that the guide must be in proximity to the angler, certain technologies, such as cellular video calls, could allow a person to physically direct an angler to fish without being in proximity to the angler. Therefore, the nature of the activity will be evaluated as needed to determine if it is “physically directing.” We describe this in greater detail in the following paragraphs. The definition of sport fishing guide services implemented by this final rule applies only to assistance provided during any part of a charter vessel fishing trip.

A charter vessel fishing trip is defined as “the time period between the first deployment of fishing gear into the water from a charter vessel by a charter vessel angler and the offloading of one or more charter vessel anglers or any halibut from that vessel.” Assistance, under the definition of sport fishing guide services implemented by this final rule, will therefore be restricted to activities that occur after gear has been deployed. Assistance provided before gear is deployed would not be considered sport fishing guide services.

NMFS notes that determination of assistance for purposes of Federal regulations likely would depend on a combination of factors that, taken together, would indicate that a charter vessel guide was compensated for assisting an angler in a manner intended to result in the taking of halibut. Providing a description, or even a map or GPS coordinates of a fishing location, before a charter vessel fishing trip begins, would not in itself be considered as providing sport fishing guide services because it was not assistance during a charter vessel fishing trip. According to a recent decision in United States v. Dutton, assistance includes, but is not limited to the following activities: anchoring and drifting the vessel on the fishing spots, rigging gear, baiting hooks, changing lures, suggesting use of a different lure and providing it, explaining how to operate the manual downrigger and cranking it up, identifying bottom fish caught, helping land halibut, and netting and bringing fish on board. According to the decision, these activities could reasonably be expected to result in the catching or taking of halibut, and that by performing these activities for compensation, the respondent was providing sport fishing guide services.

Comment 3: The definition of charter vessel fishing trip should be broadened to encompass the initial trip period when clients and fishing gear are aboard the vessel and the vessel is underway to the fishing grounds. A “charter vessel fishing trip” does not begin until an angler deploys gear into the water and ends when one or more charter vessel anglers or any halibut are offloaded from the vessel. Under this definition, a guide could still legally tow or direct clients out to specific, productive fishing locations and show them when, where, or how to fish because the trip would not technically start until the angler deployed his or her gear. These activities should be considered part of a charter vessel fishing trip.

Response: This final rule does not restrict a person from directing clients to fishing grounds or instructing them in how to fish before the clients deploy fishing gear. Once an angler deploys fishing gear, however, the guide may not assist, accompany, or physically direct the angler for that trip to be considered unguided. Determining which activities might be considered fishing before gear is deployed is difficult. The Council determined, and NMFS agrees, that the activity of fishing (i.e., deploying fishing gear) is what defines a charter vessel fishing trip. Therefore, the current definition is consistent with the Council's intent to manage charter halibut fishing in Areas 2C and Area 3A.

Comment 4: The summary section of the preamble of the proposed rule states that “sport fishing for halibut in which anglers receive assistance from a compensated guide would be managed under charter fishery regulations, and all harvest would accrue toward charter allocations” (79 FR 71729). However, GAF do not accrue toward charter allocations. The final rule should clarify that GAF do not accrue toward charter allocations.

Response: NMFS agrees and notes the clarification to the preamble to the proposed rule in this response. The Catch Sharing Plan authorizes transfers of commercial halibut individual fishing quota (IFQ) as guided angler fish (GAF) to qualified charter halibut permit holders for harvest by charter vessel anglers in Areas 2C and 3A. Using GAF, qualified charter halibut permit holders may offer charter vessel anglers the opportunity to retain halibut up to the limit for unguided anglers when the charter management measure in place limits charter vessel anglers to a more restrictive harvest limit. GAF is an alternative use of commercial halibut IFQ and all harvests of GAF accrue toward the commercial catch limit. NMFS has modified the preamble to this final rule to clarify that all charter harvests, except GAF, will accrue toward the charter sectors' allocations.

Comment 5: The proposed definition of sport fishing guide services excludes services provided by a crew member working on a charter vessel. If vessel crew are not covered by these regulations, charter businesses could continue to avoid the charter fishing regulations by placing a crew member on board the angler vessel and a licensed guide on a separate vessel.

Response: NMFS disagrees. A charter vessel guide is defined at § 300.61 as follows: “Charter vessel guide, for purposes of §§ 300.65, 300.66 and 300.67, means a person who holds an annual sport guide license or registration issued by the Alaska Department of Fish and Game, or a person who provides sport fishing guide services.” A crew member is defined at § 300.61 as follows: “Crew member, for purposes of §§ 300.65 and 300.67, means an assistant, deckhand, or similar person who works directly under the supervision of, and on the same vessel as, a charter vessel guide or operator of a vessel with one or more charter vessel anglers on board.” According to these definitions, a crew member must be on the same vessel as the charter vessel guide to be considered a crew member. If an assistant or deckhand is not on the vessel with the charter vessel guide, that person does not meet the definition of crew member at § 300.61. If the assistant or deckhand is providing assistance for compensation, or with the intent to receive compensation, to a person who is sport fishing, to take or attempt to take halibut by accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip, that person would be considered a charter vessel guide, not a crew member, and charter fishing regulations would apply.

The Council and NMFS do not intend for an assistant, deckhand, or other crew member that works directly under the supervision of a charter vessel guide to be the person responsible for compliance with CHLAP and CSP regulations. This final rule maintains current requirements specifying that a person providing sport fishing guide services from a charter vessel is responsible for complying with CHLAP and CSP regulations, whether or not that person has an ADF&G sport fishing guide license or registration on board that vessel. Therefore, this final rule revises the final sentence of the definition of sport fishing guide services to specify that “sport fishing guide services do not include services provided by a crew member, as defined at § 300.61.” The revision implemented by this final rule cites the definition of a crew member for added clarity.

Comment 6: NMFS should consider carefully defining what will be considered “private” (i.e., unguided) sport fishing and what will be “charter” sport fishing and prohibit any practices that do not fit these two descriptions.

Response: This final rule clarifies specific types of fishing activities that are defined and managed as unguided sport fishing and those that are considered to be charter fishing. This final rule is intended to clarify that all sport fishing for halibut in which anglers receive assistance from a compensated guide will be managed under charter fishery regulations. To do that, this final rule aligns State of Alaska and Federal definitions pertaining to sport fishing guide services for Pacific halibut. This final rule requires businesses that currently provide sport fishing services in which a charter vessel guide is not on board the vessel with the anglers to either obtain CHPs and comply with regulations for the charter halibut fishery, or refrain from accompanying or physically directing anglers during a fishing trip, thereby creating a clearer distinction between guided (i.e., charter) and unguided anglers. See also response to Comment 7.

Comment 7: Data from the “self-guided” commercial sport anglers are not distinguished from data from private anglers in the statewide harvest survey (SWHS). The SWHS is mailed in the fall to a sample of sport fishing license holders. The SWHS is not a reliable method to collect data from such a large sector of the harvest. NMFS and ADF&G need to improve data collection to distinguish between anglers who use commercial sport fishing operations and anglers who do not.

Response: The Council and NMFS manage two categories of sport halibut anglers: guided (charter) and unguided (self-guided). The Council and NMFS do not distinguish between unguided anglers who fish using their own boats and gear (what the commenter refers to as “private” anglers) and those who may rent boats and gear from a lodge or outfitter but do not use the services of a charter vessel guide (what the commenter refers to as “self-guided commercial sport” anglers). Both of these types of anglers are considered by NMFS to be unguided. As described in the proposed rule and Section 1.2 of the RIR/IRFA, this final rule is intended only to address fishing activities for the charter halibut sector; no action is proposed to further regulate businesses that do not provide sport fishing guide services.

Sport halibut harvests are estimated from logbooks for the charter sector, and from the SWHS for unguided anglers. In developing and recommending this final rule, the Council did not identify a conservation concern with regard to sport halibut harvest accounting because all harvests are estimated based on information submitted in the logbooks and SWHS. NMFS anticipates this final rule will improve harvest estimates between the charter sector and unguided anglers by clarifying logbook reporting requirements and aligning the Federal and State definitions of sport fishing guide services so that halibut harvested by an angler who receives compensated assistance are required to be recorded in the logbook, whether the person providing the assistance is on board the vessel or not. The Council and NMFS have determined that the recordkeeping and reporting regulations currently in place provide for effective monitoring and enforcement of halibut harvested by charter vessel anglers in Area 2C and Area 3A.

Comment 8: The proposed action will not curtail angling that occurs when a charter vessel guide is not onboard the vessel with the anglers. There are several modes of angling that could develop or expand including (1) allowing clients to run boats themselves after a day or two of fishing with a guide to learn the ropes; (2) sending anglers out in skiffs with GPS coordinates and other guidance; (3) charter businesses or lodges converting from guided to “self-guided” operations; and (4) offering catch and release halibut fishing trips.

Response: The Council recommended this final rule to clarify that all sport fishing for halibut in which anglers receive assistance from a compensated guide will be managed under the CHLAP and the CSP. This final rule is not intended to curtail businesses that provide equipment for unguided sport fishing (e.g., self-guided fishing or bare boat rentals) (see also response to Comment 7). The Council and NMFS recognized and considered the alternative fishing scenarios listed by the commenter in developing Federal regulations for the charter halibut fisheries in Areas 2C and 3A and this final rule. Anglers who feel confident to fish without a guide after fishing with a guide for one or more trips may do so under charter halibut fishing regulations. Anglers may receive advice on where and how to fish before a fishing trip begins (see also response to Comment 2). The proposed rule and Section 1.3.7 of the RIR/IRFA describe that businesses currently providing sport fishing services where the charter vessel guide is not on board a vessel with the anglers may modify those services so that they comply with regulations for guided and unguided anglers. Finally, while catch and release fishing for halibut does not require a charter halibut permit, IPHC regulations at section 25(3) (80 CFR 13771, March 17, 2015) specify that any halibut brought aboard a vessel and not immediately returned to the sea with a minimum of injury will be included in the daily bag limit of the person catching the halibut.

Comment 9: The guideline harvest level regulations that preceded the CSP, the CSP, and this proposed rule are all based on the false premise that charter fishing is a commercial harvesting activity. This proposed rule should be addressing the definition of what constitutes commercial uses of halibut, not what constitutes guiding services.

Response: This final rule is intended to clarify that all sport fishing for halibut in which anglers receive assistance from a compensated guide will be managed under charter fishery regulations and to align State of Alaska and Federal definitions pertaining to sport fishing guide services for Pacific halibut. The Council did not recommend, and NMFS is not implementing changes to commercial halibut fishing regulations as part of this action. Therefore, changing the definition of commercial uses of halibut is beyond the scope of this final rule.

Comment 10: NMFS should insist that charter businesses establish business models that enable managers to establish allocations instead of “guidelines” for the charter sector and that provide for verifiable landing statistics.

Response: The primary objective of this final rule is to clarify the sport fishing activities defined as charter fishing, not to modify the allocations that are assigned to the charter fishery under the CSP. As described in the proposed rule and Section 1.3.3 of the RIR/IRFA, the Council approved and NMFS implemented the CSP in 2014. The CSP established a method by which allocations are set for the charter and commercial halibut fisheries in Areas 2C and 3A. This final rule clarifies that all sport fishing for halibut in which anglers receive assistance from a compensated guide would be managed under charter fishery regulations, and all harvest (except halibut harvested under the GAF Program) would accrue toward charter allocations under the CSP. As described in the response to Comment 7, the Council and NMFS have determined that the recordkeeping and reporting regulations currently in place for sport halibut fisheries provide for effective monitoring of the charter fishery allocation and enforcement of regulations applicable to the charter fishery in Area 2C and Area 3A.

OMB Revisions to Paperwork Reduction Act References in 15 CFR 902.1(b)

Section 3507(c)(B)(i) of the PRA requires that agencies inventory and display a current control number assigned by the Director, OMB, for each agency information collection. Section 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule revises and adds data elements within a collection-of-information for recordkeeping and reporting requirements, 15 CFR 902.1(b) is revised to reference correctly the sections resulting from this final rule.

Classification

Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Halibut Act (16 U.S.C. 773c) allows the Regional Council having authority for a particular geographical area to develop regulations governing fishing for halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations. The Halibut Act at section 773c(a) and (b) provides the Secretary of Commerce with the general responsibility to carry out the Convention with the authority to, in consultation with the Secretary of the department in which the U.S. Coast Guard is operating, adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act. This final rule is consistent with the Halibut Act and other applicable laws.

Executive Order 12866

This final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule also complies with the Secretary of Commerce's authority under the Halibut Act to implement management measures for the halibut fishery.

Regulatory Flexibility Act (RFA)

A final regulatory flexibility analysis (FRFA) is required by the Regulatory Flexibility Act. This FRFA incorporates the initial regulatory flexibility analysis (IRFA) prepared for the proposed rule and addresses the applicable requirements of section 604(a) of the RFA. A statement of the need for and objectives of, this final rule has already been provided in the preamble to this final rule (see Purpose of this Final Rule) and is not repeated here.

The proposed rule was published in the Federal Register on December 3, 2014 (79 FR 71729). An initial regulatory flexibility analysis (IRFA) was prepared and described in the Classification section of the proposed rule. The comment period ended on January 2, 2015. NMFS received 8 comment submissions containing 10 unique comments. No comments were received on the IRFA or on the small entity impacts of this action. No comments on the proposed rule were filed with NMFS by the Chief Counsel for Advocacy of the Small Business Administration.

Number and Description of Small Entities Regulated by the Proposed Rule

On June 12, 2014, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647, June 12, 2014). The new size standards were used to prepare the FRFA for this final rule.

The Small Business Administration (SBA) specifies that for charter fishing vessel operations, a small business is one with annual receipts less than $7.5 million. The largest of these charter vessel operations, which are lodges, may be considered large entities under SBA standards, but that cannot be confirmed because NMFS does not have or collect economic data on lodges necessary to definitively determine total annual receipts. Thus, all charter vessel operations are considered small entities, based on SBA criteria, because NMFS cannot confirm if any entities have gross revenues greater than $7.5 million on an annual basis.

This final rule would directly regulate all CHP holders, and businesses offering sport fishing guide services that the regulations require to have CHPs. As of July 7, 2014, the date of the most recent information available, there were 975 CHPs issued to 580 permit holders in Areas 2C and 3A. Data on business affiliations among permit holders are not available; therefore, the number of CHP holders that are directly regulated cannot be accurately determined, but would not exceed 580. NMFS notes that because there is little incentive for a business that already holds one or more CHPs to offer sport fishing guide services without a guide on board to anglers, the number of current CHP holders (i.e., small entities) affected by this proposed regulation is likely to be very small. The final rule is not expected to adversely impact small entities that possess CHPs.

The final rule, however, may adversely impact those entities that do not hold CHPs and who provide sport fishing guide services using guides that are not on board the vessel with the anglers. A review of logbook data suggests that only a few such entities can be documented. For Area 2C, a minimum of one to three businesses are estimated from logbook data to have routinely offered sport fishing services for halibut that did not meet the Federal definition of sport fishing guide services between 2009 and 2013. Logbook data for Area 3A did not clearly identify any businesses that routinely reported trips in which halibut were harvested and no CHP was recorded as used for the charter vessel fishing trip. It is difficult to estimate how many businesses may be providing sport fishing services where the guide is not on board the vessel with the anglers because some of these businesses may not be registered as charter businesses with the State and may not be completing logbooks. Under the final rule, businesses that provide sport fishing services where the guide is not on board the vessel with the anglers, but do not hold CHPs, would have to either purchase CHPs or change the services they provide so that they refrain from having guides accompany or physically assist anglers in the taking of halibut during any part of a charter vessel fishing trip. Information on availability and price of CHPs is presented in Section 1.3.1.2 of the RIR/IRFA. NMFS does not have or collect data to determine the exact number of businesses offering sport fishing services where the guide is not on board the vessel with the anglers or total annual receipts for these entities. NMFS considers all sport fishing services as small entities, based on SBA criteria, because NMFS cannot confirm if any of these entities have gross revenues greater than $7.5 million on an annual basis.

Community quota entities may apply for and receive community CHPs; therefore, this final rule may directly regulate entities representing small, remote communities in Areas 2C and 3A. There are 20 communities in Area 2C and 14 in Area 3A eligible to receive community CHPs. Of these 34 communities, 21 hold community CHPs. The action is not expected to adversely impact communities that hold CHPs.

Description of Significant Alternatives That Minimize Adverse Impacts on Small Entities

A FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of the Halibut Act and other applicable statues, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected.

The status quo alternative (Alternative 1) would continue to require that a guide be on board a charter vessel with a charter vessel angler to be providing sport fishing guide services. Maintaining these regulations is believed to result in an unknown, but relatively small number of anglers fishing under unguided sport fishing regulations, rather than the more restrictive charter fishing regulations. The status quo may result in potential inaccuracies in accounting of sport removals by sector and continued confusion by the angling public as to how to report their halibut harvest. The status quo alternative would not accomplish the Council's objective that receiving compensated assistance while fishing for halibut be managed under charter halibut fishery regulations, whether or not the person providing the compensated assistance is on the same vessel as the person fishing for halibut.

The Council considered one alternative with three options to the status quo. The first option under Alternative 2 would change the definition of “sport fishing guide services” to remove the requirement that a guide be on board the charter vessel with the charter vessel angler to be providing those services. The second option would add a Federal definition for “compensation” and contained two suboptions. The first suboption would add a Federal definition for compensation that matches the State definition. The second suboption would add a Federal definition that substitutes the word “reasonable” for “actual” expenses from the State definition. These suboptions are described in more detail in Section 1.3.6.2 of the RIR/IRFA. The third option under Alternative 2 would add a Federal definition for “assistance” to describe which types of activities fall under sport fishing guide services. Alternative 2 would better align Federal regulations regarding sport fishing guide services for Pacific halibut with State regulations, would incorporate sport fishing services whether or not the person providing the compensated assistance in on the same vessel as the person fishing for halibut under the umbrella of charter regulations, and would improve the accuracy of unguided sport and charter halibut harvest estimates.

The Council recommended a preferred alternative (i.e., this final rule) that would better align the State and Federal definitions of “sport fishing guide services” (Alternative 2, Option 1), and add a definition for “compensation” (Alternative 2, Option 2) to Federal regulations. Instead of separately defining “assistance” as described in Alternative 2, Option 3, the preferred alternative would add language to the definition of sport fishing guide services to define assistance as “accompanying or physically directing the sport fisherman in sport fishing activities.” The preferred alternative incorporates the recommendations developed cooperatively by State and NMFS enforcement and management staff and supported by the discussion of the effects of Alternative 2, Options 1, 2, and 3 in Section 1.3.6 of the RIR/IRFA. The preferred alternative incorporates a description of assistance consistent with State regulations without specifying a list of fishing activities. Broadly defining assistance in this way would eliminate the need to identify all potential activities that could be considered as providing assistance to an angler and the risk that a relevant activity would be inadvertently excluded from the list.

NMFS proposed the Council's preferred alternative, with one exception. Instead of proposing the suboption to Alternative 2, Option 2 that would have added a Federal definition for “compensation” that differs from the State's definition by referring to “reasonable” expenses rather than “actual” expenses, NMFS proposed the suboption that would add a Federal definition that matches the State's definition. The preferred alternative for this option initially incorporated the recommendations developed cooperatively by State and NMFS enforcement and management staff, but upon further discussion, these entities determined that matching the State and Federal definitions for compensation would be more enforceable. Additionally, adopting matching definitions would further the Council's objectives of aligning Federal and State of Alaska regulations.

The entities directly regulated under this action are assumed to be small under the SBA definition. Because the rule serves to benefit the small entities that are directly regulated under the rule by clarifying Federal fishery regulations to better align with Council intent and State fishery regulations, no significant negative economic impacts are expected on directly regulated entities who are CHP holders; however, charter vessel guides who provide sport fishing guide services and are not on board the same charter vessel as the charter vessel angler will be required to change their fishing practices under this final rule. These directly regulated entities are also assumed to be small entities. Thus, NMFS is not aware of any alternatives, in addition to the alternatives considered, that would more effectively meet these Regulatory Flexibility Act criteria at a lower economic cost to directly regulated small entities.

Reporting, Recordkeeping Requirements, and Other Compliance Requirements

This action does not impose any additional reporting requirements on the participants of the charter halibut fishery. Although the public reporting burden will not change, additional participants would be required to comply with existing requirements. The new participants would be subject to the same recordkeeping and reporting requirements as existing participants.

Duplicate, Overlapping, or Conflicting Federal Rules

NMFS has not identified other Federal rules that may duplicate, overlap, or conflict with this final rule.

Paperwork Reduction Act Collection-of-Information Requirements

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which have been approved by the Office of Management and Budget (OMB). The collections are presented below by OMB control number.

OMB Control No. 0648-0575

The ADF&G Saltwater Sport Fishing Charter Trip Logbook, GAF Electronic Landing Report, and GAF Permit Log are mentioned in this final rule. This final rule may require a few more businesses that currently do not complete reports and logbooks to do so; however, the public reporting burden for these items in this collection-of-information are not directly affected by this final rule.

OMB Control No. 0648-0592

Applications for CHPs and applications for GAF transfers are mentioned in this final rule. This final rule may result in a few more businesses that currently do not have CHPs and GAF transfers to purchase and apply for them, respectively; however, the public reporting burden for these applications in this collection-of-information are not directly affected by this final rule.

Public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to [email protected], or fax to 202-395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

This final rule is consistent with Executive Order 12962 as amended September, 26, 2008, which required Federal agencies to ensure that recreational fishing is managed as a sustainable activity and is consistent with existing law.

List of Subjects 15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Part 300

Administrative practice and procedure, Antarctica, Canada, Exports, Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, Reporting and recordkeeping requirements, Russian Federation, Transportation, Treaties, Wildlife.

Dated: June 10, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 300 as follows:

Title 15—Commerce and Foreign Trade PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS 1. The authority citation for part 902 continues to read as follows: Authority:

44 U.S.C. 3501 et seq.

2. In § 902.1, in the table in paragraph (b), under the entry “50 CFR”: a. Remove the entries for “300.65 introductory text; (h)(1)(ii) and (iii); and (i)”; “300.65(h)(1)(i)”; “300.65(j), (k), and (l)”; and “300.67(h) and (i)”. b. Add entries in alphanumeric order for “300.65(h) through (l)”; and “300.67(a) through (j)”. c. Revise the entry for “300.65(c)(5)”;

The additions and revision read as follows:

§ 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.

(b) * * *

CFR Part or section where the information collection requirement is located Current OMB control number (all numbers begin with 0648-) *    *    *    *    * 50 CFR: *    *    *    *    * 300.65(c)(5) −0575, −0592, −0665 *    *    *    *    * 300.65(h) through (l) −0512 *    *    *    *    * 300.67(a) through (j) −0592 *    *    *    *    *
Title 50—Wildlife and Fisheries PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart E—Pacific Halibut Fisheries 3. The authority citation for part 300, subpart E, continues to read as follows: Authority:

16 U.S.C. 773-773k.

4. In § 300.61: a. Add a definition for “Charter vessel” in alphabetical order; b. Revise the definitions of “Charter vessel angler”, “Charter vessel fishing trip”, “Charter vessel guide”, “Charter vessel operator”; c. Add a definition for “Compensation” in alphabetical order; and d. Revise the definition of “Sport fishing guide services”.

The additions and revisions read as follows:

§ 300.61 Definitions.

Charter vessel, for purposes of §§ 300.65, 300.66, and 300.67, means a vessel used while providing or receiving sport fishing guide services for halibut.

Charter vessel angler, for purposes of §§ 300.65, 300.66, and 300.67, means a person, paying or non-paying, receiving sport fishing guide services for halibut.

Charter vessel fishing trip, for purposes of §§ 300.65, 300.66, and 300.67, means the time period between the first deployment of fishing gear into the water from a charter vessel by a charter vessel angler and the offloading of one or more charter vessel anglers or any halibut from that vessel.

Charter vessel guide, for purposes of §§ 300.65, 300.66 and 300.67, means a person who holds an annual sport fishing guide license or registration issued by the Alaska Department of Fish and Game, or a person who provides sport fishing guide services.

Charter vessel operator, for purposes of § 300.65, means the person in control of the charter vessel during a charter vessel fishing trip.

Compensation, for purposes of sport fishing for Pacific halibut in Commission regulatory areas 2C and 3A, means direct or indirect payment, remuneration, or other benefits received in return for services, regardless of the source; for this definition, “benefits” includes wages or other employment benefits given directly or indirectly to an individual or organization, and any dues, payments, fees, or other remuneration given directly or indirectly to a fishing club, business, organization, or individual who provides sport fishing guide services; and does not include reimbursement for the actual daily expenses for fuel, food, or bait.

Sport fishing guide services, for purposes of §§ 300.65(d) and 300.67, means assistance, for compensation or with the intent to receive compensation, to a person who is sport fishing, to take or attempt to take halibut by accompanying or physically directing the sport fisherman in sport fishing activities during any part of a charter vessel fishing trip. Sport fishing guide services do not include services provided by a crew member, as defined at § 300.61.

5. In § 300.65, a. Revise paragraphs (c)(5)(iii)(A)(5); (c)(5)(iv)(A) and (G); (d)(3); (d)(4)(i); (d)(4)(ii)(B) introductory text; (d)(4)(ii)(B)(1) through (4); and (d)(4)(iii)(A)(1); b. Add paragraph (d)(4)(iii)(A)(5); c. Revise paragraph (d)(4)(iii)(D)(4); and d. Add paragraph (d)(5).

The revisions and addtions read as follows:

§ 300.65 Catch sharing plan and domestic management measures in waters in and off Alaska.

(c) * * *

(5) * * *

(iii) * * *

(A) * * *

(5) If a charter vessel angler harvests GAF from a charter vessel with a charter vessel guide on board, a legible copy of a valid GAF permit and the assigned charter halibut permit, community charter halibut permit, or military charter halibut permit appropriate for the Commission regulatory area (2C or 3A) must be carried by the charter vessel operator on board the charter vessel used to harvest GAF at all times that such fish are retained on board and must be presented for inspection on request of any authorized officer. If a charter vessel angler harvests GAF from a charter vessel without a charter vessel guide on board, the charter vessel guide must retain the legible copy of the GAF permit and the assigned charter halibut permit, community charter halibut permit, or military charter halibut permit must be on the charter vessel with the charter vessel angler.

(iv) * * *

(A) If a charter vessel angler harvests GAF from a charter vessel with a charter vessel guide on board, the charter vessel guide must have on board a legible copy of a valid GAF permit and the valid charter halibut permit, community charter halibut permit, or military charter halibut permit assigned to the GAF permit for the area of harvest. If a charter vessel angler harvests GAF from a charter vessel without a charter vessel guide on board, the legible copy of the valid GAF permit must be on board the same vessel as the charter vessel guide, and the original charter halibut permit, community charter halibut permit, or military charter halibut permit assigned to the GAF permit for the area of harvest must be on the charter vessel with the charter vessel angler.

(G) The charter vessel guide must be physically present when the GAF halibut is harvested and must immediately remove the tips of the upper and lower lobes of the caudal (tail) fin to mark all halibut caught and retained as GAF. If the GAF halibut is filleted, the entire carcass, with head and tail connected as a single piece, must be retained on board the charter vessel on which the halibut was caught until all fillets are offloaded.

(d) * * *

(3) Charter vessel guide and crew restriction in Commission regulatory areas 2C and 3A. A charter vessel guide, charter vessel operator, or crew member may not catch and retain halibut during a charter vessel fishing trip in Commission regulatory area 2C or 3A, except that charter vessel operators who are charter vessel anglers may catch and retain halibut during a charter vessel fishing trip if the charter vessel guide is on a separate charter vessel.

(4) * * *

(i) General requirements. Each charter vessel angler and charter vessel guide in Commission regulatory area 2C or 3A must comply with the following recordkeeping and reporting requirements, except as specified in paragraph (d)(4)(iii)(C) of this section, by the end of the calendar day or by the end of the charter vessel fishing trip, whichever comes first, unless otherwise specified.

(ii) * * *

(B) Charter vessel guide requirements. If halibut were caught and retained in Commission regulatory area 2C or 3A, the charter vessel guide must record the following information (see paragraphs (d)(4)(ii)(B)(1) through (10) of this section) in the Alaska Department of Fish and Game Saltwater Charter Logbook:

(1) Guide license number. The Alaska Department of Fish and Game sport fishing guide license or registration number held by the charter vessel guide who certified the logbook data sheet.

(2) Date. Month and day for each charter vessel fishing trip taken. A separate logbook data sheet is required for each charter vessel fishing trip if two or more trips are taken on the same day. A separate logbook data sheet is required for each calendar day that halibut are caught and retained during a multi-day trip. A separate logbook sheet is required if more than one charter halibut permit is used on a trip.

(3) Charter halibut permit (CHP) number. The NMFS CHP number(s) authorizing charter vessel anglers on that charter vessel fishing trip to catch and retain halibut.

(4) Guided Angler Fish (GAF) permit number. The NMFS GAF permit number(s) authorizing charter vessel anglers on that charter vessel fishing trip to harvest GAF.

(iii) * * *

(A) * * *

(1) Upon retention of a GAF halibut, the charter vessel guide must immediately record on the GAF permit log (on the back of the GAF permit) the date that the fish was caught and retained and the total length of that fish as described in paragraphs (d)(4)(iii)(D)(5) and (7) of this section. If GAF halibut are retained on a charter vessel without a charter vessel guide on board, the charter vessel guide must also comply with the reporting requirements in paragraph (d)(4)(iii)(A)(5) of this section.

(5) If a GAF is retained on a charter vessel without a charter vessel guide on board, the charter vessel guide must immediately record in the ADF&G Saltwater Charter Logbook the GAF permit number under which GAF were caught and retained, and the number of GAF kept under the corresponding charter vessel angler's name.

(D) * * *

(4) Alaska Department of Fish and Game sport fishing guide license or registration number held by the charter vessel guide who certified the logbook data sheet.

(5) Carcass retention requirement for size-restricted halibut. If a size-restricted halibut is filleted on board the charter vessel, the entire carcass, with head and tail connected as a single piece, must be retained on board the charter vessel on which it was caught until all fillets are offloaded.

6. In § 300.66: a. Revise paragraph (h) introductory text and paragraphs (s) and (t); b. Remove paragraph (u); c. Redesignate paragraphs (v) and (w) as (u) and (v), respectively; and d. Revise newly redesignated paragraphs (u) and (v).

The revisions read as follows:

§ 300.66 Prohibitions.

(h) Conduct subsistence fishing for halibut while commercial fishing or sport fishing for halibut, as defined in § 300.61, from the same vessel on the same calendar day, or possess on board a vessel halibut harvested while subsistence fishing with halibut harvested while commercial fishing or sport fishing, except that persons authorized to conduct subsistence fishing under § 300.65(g), and who land their total annual harvest of halibut:

(s) Be a charter vessel guide with charter vessel anglers on board, or a charter vessel operator if the charter vessel guide is not on board, in Commission regulatory area 2C or 3A without an original valid charter halibut permit for the regulatory area in which the charter vessel is operating during a charter vessel fishing trip.

(t) Be a charter vessel guide in Commission regulatory area 2C or 3A with more charter vessel anglers catching and retaining halibut during a charter vessel fishing trip than the total angler endorsement number specified on the charter halibut permit(s) or community charter halibut permit(s) in use for that trip.

(u) Be a charter vessel guide of a charter vessel on which one or more charter vessel anglers are catching and retaining halibut in both Commission regulatory areas 2C and 3A during one charter vessel fishing trip.

(v) Be a charter vessel guide or a charter vessel operator during a charter vessel fishing trip in Commission regulatory area 2C or 3A with one or more charter vessel anglers that are catching and retaining halibut without having on board the vessel with the charter vessel anglers a State of Alaska Department of Fish and Game Saltwater Charter Logbook in which the charter vessel guide has specified the following:

(1) The person named on the charter halibut permit or permits being used during that charter vessel fishing trip;

(2) The charter halibut permit or permits number(s) being used during that charter vessel fishing trip; and

(3) The name and State-issued vessel registration (AK number) or U.S. Coast Guard documentation number of the charter vessel.

7. In § 300.67, revise paragraphs (a)(1) and (3) to read as follows:
§ 300.67 Charter halibut limited access program.

(a) * * *

(1) In addition to other applicable permit, licensing, or registration requirements, any charter vessel guide of a charter vessel during a charter vessel fishing trip with one or more charter vessel anglers catching and retaining Pacific halibut on board must have on board the vessel an original valid charter halibut permit or permits endorsed for the regulatory area in which the charter vessel is operating and endorsed for at least the number of charter vessel anglers who are catching and retaining Pacific halibut. Each charter halibut permit holder must ensure that the charter vessel operator and charter vessel guide of the charter vessel comply with all requirements of §§ 300.65, 300.66, and 300.67.

(3) Charter vessel angler endorsement. A charter halibut permit is valid for up to the maximum number of charter vessel anglers on a single charter vessel for which the charter halibut permit is endorsed.

[FR Doc. 2015-15085 Filed 6-18-15; 8:45 am] BILLING CODE 3510-22-P
SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 200, 230, 232, 239, 240, 249 and 260 [Release Nos. 33-9741B; 34-74578B; 39-2501B; File No. S7-11-13] RIN 3235-AL39 Amendments for Small and Additional Issues Exemptions Under the Securities Act (Regulation A) AGENCY:

Securities and Exchange Commission.

ACTION:

Final rule; correction.

SUMMARY:

This document corrects the designation of a paragraph in Item 6 of Part I to Form 1-A in a final rule published in the Federal Register of April 20, 2015, regarding the Amendments for Small and Additional Issues Exemptions under the Securities Act (Regulation A).

DATES:

This correction is effective June 19, 2015.

FOR FURTHER INFORMATION CONTACT:

Linda Cullen, Office of the Secretary at (202) 551-5400.

SUPPLEMENTARY INFORMATION:

In FR Document No. 2015-07305 beginning on page 21806 for Monday, April 20, 2015, the following correction is made:

Form 1-A [Corrected]

On page 21906, in the first column, third line, paragraph (e) of Form 1-A is redesignated as paragraph (d).

Dated: June 16, 2015. Brent J. Fields, Secretary.
[FR Doc. 2015-15146 Filed 6-18-15; 8:45 am] BILLING CODE 8011-01-P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 [TD 9723] RIN 1545-BM73 Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014 AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Temporary regulations.

SUMMARY:

This document contains temporary regulations relating to multiemployer pension plans that are projected to have insufficient funds, at some point in the future, to pay the full benefits to which individuals will be entitled under the plans (referred to as plans in “critical and declining status”). The Multiemployer Pension Reform Act of 2014 (“MPRA”) amended the Internal Revenue Code to incorporate suspension of benefits provisions that permit these multiemployer plans to reduce pension benefits payable to participants and beneficiaries if certain conditions are satisfied. MPRA requires the Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation and the Secretary of Labor, to approve or deny applications by these plans to reduce benefits. As required by MPRA, these temporary regulations, together with proposed regulations being published at the same time, provide guidance implementing these statutory provisions. These temporary regulations affect active, retired, and deferred vested participants and beneficiaries of multiemployer plans that are in critical and declining status as well as employers contributing to, and sponsors and administrators of, those plans. The text of these temporary regulations also serves, in part, as the text of the proposed regulations (REG-102648-15) set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the Federal Register.

DATES:

Effective Date: These regulations are effective on June 19, 2015.

Applicability Date: For date of applicability, see § 1.432(e)(9)-1T(j).

FOR FURTHER INFORMATION CONTACT:

The Department of the Treasury MPRA guidance information line at (202) 622-1559 (not a toll-free number).

SUPPLEMENTARY INFORMATION: Paperwork Reduction Act

These temporary regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collection of information contained in these regulations has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-2260.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For further information concerning this collection of information, and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble to the cross-referenced notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the Federal Register.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

Background Overview

Section 432(e)(9) 1 of the Internal Revenue Code (Code) permits the plan sponsor of a multiemployer plan that is projected to have insufficient funds, at some point in the future, to pay the full benefits to which individuals will be entitled under the plan (referred to as a plan in “critical and declining status”) to reduce the pension benefits payable to participants and beneficiaries under the plan if certain conditions are satisfied (referred to as a “suspension of benefits”). MPRA requires the Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation and the Secretary of Labor (generally referred to in this preamble as the Treasury Department, PBGC, and Labor Department, respectively), to issue appropriate guidance to implement the provisions of section 432(e)(9). This document contains temporary regulations under section 432(e)(9) that, together with proposed regulations that are being published elsewhere in this issue of the Federal Register and a revenue procedure being published in the Internal Revenue Bulletin, Rev. Proc. 2015-34, implement section 432(e)(9) as required by the statute. The Treasury Department consulted with the PBGC and the Labor Department on these temporary regulations.

1 Section 432(e)(9) was added to the Internal Revenue Code by the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780 (2006)) (PPA '06) and amended by the Multiemployer Pension Reform Act of 2014, Division O of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235 (128 Stat. 2130 (2014)) (MPRA).

The temporary regulations in this document, which are applicable immediately, provide sufficient guidance to enable a plan sponsor that wishes to apply for approval of a suspension of benefits to prepare and submit such an application, and to enable the Department of the Treasury to begin the processing of such an application. The temporary regulations provide general guidance regarding section 432(e)(9), including guidance regarding the meaning of the term “suspension of benefits,” the general conditions for a suspension of benefits, and the implementation of a suspension after a participant vote. The notice of proposed rulemaking, published elsewhere in this issue of the Federal Register, includes the proposed regulations and requests comments on the provisions of the proposed regulations as well as these temporary regulations. The provisions of the temporary regulations and proposed regulations are expected to be integrated and issued as a single set of final regulations with any changes that are made following consideration of the comments.

The proposed regulations, which are not applicable immediately, contain additional provisions with respect to which the Department of the Treasury intends to consider public comments before finalizing a decision to approve an application for suspension of benefits. The proposed regulations also provide additional guidance regarding section 432(e)(9), including guidance relating to the standards that will be applied in reviewing an application for suspension of benefits and the statutory limitations on a suspension of benefits.

The regulations implementing the statutory suspension of benefits provisions have been divided, as described, into temporary regulations and proposed regulations in order to balance the interest in considering public comments on rules before they apply with the evident statutory intent, reflected in MPRA, to implement the statutory provisions without undue delay. Although the Department of the Treasury is issuing proposed and temporary regulations under section 432(e)(9), it is expected that no application proposing a benefit suspension will be approved prior to the issuance of final regulations. If a plan sponsor chooses to submit an application for approval of a proposed benefit suspension in accordance with the proposed and temporary regulations before the issuance of final regulations, then the plan sponsor may need to revise the proposed suspension (and potentially the related notices to plan participants) or supplement the application to take into account any differences in the requirements relating to suspensions of benefits that might be included in the final regulations.

Rev. Proc. 2015-34 prescribes the specifics of the application process for approval of a proposed benefit suspension. The revenue procedure also provides a model notice that a plan sponsor proposing a benefit suspension may use to satisfy the statutory notice requirement.

Statutory Background

Code section 412 contains minimum funding rules that generally apply to pension plans. Code section 431, added by section 211 of PPA '06, sets forth the funding rules that apply specifically to multiemployer defined benefit plans. Code section 432, added by section 212 of PPA '06, sets forth additional rules that apply to certain multiemployer plans in endangered or critical status, and permits plans in critical status to be amended to reduce certain otherwise protected benefits (referred to as adjustable benefits). Section 202 of PPA '06 amended section 305 of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829 (1974)), as amended (ERISA), to prescribe parallel rules. PPA '06 provided that Code section 432 and ERISA section 305 would sunset for plan years beginning after December 31, 2014. However, section 101 of MPRA made them permanent, with certain modifications.

Section 201 of MPRA amended Code section 432 to add a new status, called critical and declining status, for multiemployer defined benefit plans. Section 432(b)(6) provides that a plan in critical status is treated as being in critical and declining status if the plan satisfies the criteria for critical status and in addition is projected to become insolvent within the meaning of section 418E during the current plan year or any of the 14 succeeding plan years (or 19 succeeding plan years if the plan has a ratio of inactive participants to active participants that exceeds two to one or if the funded percentage of the plan is less than 80 percent). Section 201 of MPRA also amended Code section 432(e)(9) to prescribe benefit suspension rules for plans in critical and declining status.2

2 Section 201 of MPRA makes parallel amendments to section 305 of ERISA and the Department of the Treasury has interpretive jurisdiction over the subject matter of these provisions under ERISA as well as the Code. See also section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713).

MPRA was enacted on December 16, 2014. Section 201(b)(7) of MPRA provides that, not later than 180 days after the date of enactment, the Treasury Department, in consultation with the PBGC and the Labor Department, is required to publish appropriate guidance to implement section 432(e)(9). Section 201(c) of MPRA provides that the amendments made by section 201 will take effect on the date of enactment.

On February 18, 2015, the Department of the Treasury issued a Request for Information on Suspensions of Benefits under the Multiemployer Pension Reform Act of 2014 in the Federal Register (80 FR 8578). The Request for Information included questions focusing on certain matters to be addressed in guidance implementing section 432(e)(9) and indicated that multiemployer plans should not submit applications for suspensions of benefits prior to a date specified in such future guidance. These temporary regulations, and the proposed regulations published elsewhere in this issue of the Federal Register, reflect consideration of comments received in response to the Request for Information.

Definition of Suspension of Benefits and General Rules Under Section 432(e)(9)(A) and 432(e)(9)(B)(i) Through (iv)

Section 201 of MPRA prescribes benefit suspension rules for multiemployer defined benefit plans in critical and declining status. Section 432(e)(9)(A) provides that notwithstanding section 411(d)(6) and subject to section 432(e)(9)(B) through (I), the plan sponsor of a plan in critical and declining status may, by plan amendment, suspend benefits that the sponsor deems appropriate.

The statute defines suspension of benefits as the temporary or permanent reduction of any current or future payment obligation of the plan to any participant or beneficiary under the plan, whether or not in pay status at the time of the suspension of benefits. Any suspension will remain in effect until the earlier of when the plan sponsor provides benefit improvements in accordance with section 432(e)(9)(E) or when the suspension expires by its own terms. Thus, if a suspension does not expire by its own terms, it continues indefinitely.

Under the statute, a plan will not be liable for any benefit payments not made as a result of a suspension of benefits. All references to suspensions of benefits, increases in benefits, or resumptions of suspended benefits with respect to participants will also apply with respect to benefits of beneficiaries or alternative payees 3 of participants. See section 432(e)(9)(B)(iv).

3 The Department of the Treasury and the IRS understand this provision to refer to alternate payees.

Retiree Representative

In the case of a plan with 10,000 or more participants, section 432(e)(9)(B)(v) requires the plan sponsor to select a plan participant in pay status to act as a retiree representative. The retiree representative is required to advocate for the interests of the retired and deferred vested participants and beneficiaries of the plan throughout the suspension approval process. The plan must provide for the retiree representative's reasonable expenses, including reasonable legal and actuarial support, commensurate with the plan's size and funded status.

Conditions for Suspensions

Section 432(e)(9)(C) sets forth conditions that must be satisfied before a plan sponsor of a plan in critical and declining status for a plan year may suspend benefits. Under one of the conditions, the plan actuary must certify, taking into account the proposed suspension of benefits (and, if applicable, a proposed partition of the plan under section 4233 of ERISA (partition)), that the plan is projected to avoid insolvency within the meaning of section 418E, assuming the suspension of benefits continues until it expires by its own terms or if no such expiration date is set, indefinitely.

Another condition requires a plan sponsor to determine, in a written record to be maintained throughout the period of the benefit suspension, that although all reasonable measures to avoid insolvency have been taken (and continue to be taken during the period of the benefit suspension), the plan is still projected to become insolvent unless benefits are suspended. In making this determination, the plan sponsor may take into account factors including a specified list of 10 statutory factors.4 See section 432(e)(9)(C)(ii).

4 These 10 factors are current and past contribution levels; levels of benefit accruals (including prior reductions in the rate of benefit accruals); prior adjustable benefit reductions and suspensions of benefits; the impact on plan solvency of the subsidies and ancillary benefits available to active participants; compensation levels of active participants relative to employees in the participants' industry generally; competitive and other economic factors facing contributing employers; the impact of benefit and contribution levels on retaining active participants and bargaining groups under the plan; the impact of past and anticipated contribution increases under the plan on employer attrition and retention levels; and measures undertaken by the plan sponsor to retain or attract contributing employers.

Limitations on Suspensions

Section 432(e)(9)(D) contains limitations on the benefits that may be suspended, some of which apply to plan participants and beneficiaries on an individual basis and some of which apply on an aggregate basis. Under the statute, an individual's monthly benefit may not be reduced below 110 percent of the monthly benefit that is guaranteed by the PBGC under section 4022A of ERISA on the date of the suspension. In addition, no benefits based on disability (as defined under the plan) may be suspended.

In the case of a participant or beneficiary who has attained age 75 as of the effective date of a suspension, section 432(e)(9)(D)(ii) provides that the suspension may not exceed the applicable percentage of the individual's maximum suspendable benefit (the age-based limitation). The maximum suspendable benefit is the maximum amount of an individual's benefit that would be suspended without regard to the age-based limitation. The applicable percentage is a percentage that is calculated by dividing (i) the number of months during the period that begins with the month after the month in which the suspension is effective and ends with the month in which that participant or beneficiary attains the age of 80 by (ii) 60 months.

Section 432(e)(9)(D) also requires the aggregate benefit suspensions (considered, if applicable, in connection with a partition) to be reasonably estimated to achieve, but not materially exceed, the level that is needed to avoid insolvency.

Under the statute, any suspension of benefits must be equitably distributed across the participant and beneficiary population, taking into account factors that may include one or more of a list of 11 statutory factors.5 Finally, with regard to a suspension of benefits that is made in combination with a partition, section 432(e)(9)(D)(v) provides that the suspension may not occur before the effective date of the partition.

5 These 11 factors are age and life expectancy; length of time in pay status; amount of benefit; type of benefit; extent of a subsidized benefit; extent of post-retirement benefit increases; history of benefit increases and reductions; years to retirement for active employees; any discrepancies between active and retiree benefits; extent to which participants are reasonably likely to withdraw support for the plan, resulting in accelerated employer withdrawal; and the extent to which the benefits are attributed to service with an employer that failed to pay its withdrawal liability.

Benefit Improvements

Section 432(e)(9)(E) sets forth rules relating to benefit improvements made while a suspension of benefits is in effect. Under this provision, a benefit improvement is defined as a resumption of suspended benefits, an increase in benefits, an increase in the rate at which benefits accrue, or an increase in the rate at which benefits become nonforfeitable under the plan.

The statute also provides that, while a suspension of benefits is in effect, a plan sponsor generally has discretion to provide benefit improvements. However, a sponsor may not increase plan liabilities by reason of any benefit improvement for any participant or beneficiary who is not in pay status (in other words, those who are not yet receiving benefits, such as active employees or deferred vested employees) unless (1) this benefit improvement is accompanied by an equitable distribution of benefit improvements for those who have begun to receive benefits (typically, retirees), and (2) the plan actuary certifies that, after taking those benefit improvements into account, the plan is projected to avoid insolvency indefinitely.6 Whether an individual is in pay status for this purpose is generally based on whether the individual's benefits began before the first day of the plan year for which the benefit improvement took effect.

6 Avoidance of insolvency is determined by reference to section 418E under which a plan is insolvent if it is unable to pay scheduled benefits for a year. Pursuant to section 432(e)(9)(E)(iv), this restriction does not apply to certain benefit improvements if the Treasury Department determines either that the benefit improvements are reasonable and provide for only de minimis increases in plan liabilities or that the benefit improvements are required as a condition of qualification or to comply with other applicable law.

Notice of Proposed Suspension

A plan sponsor may not suspend benefits unless notice is provided in accordance with section 432(e)(9)(F). Under this section, concurrently with an application to suspend benefits under section 432(e)(9)(G), the plan sponsor must give notice to plan participants and beneficiaries who may be contacted by reasonable efforts, each employer that has an obligation to contribute (within the meaning of section 4212(a) of ERISA) under the plan, and each employee organization that represents plan participants employed by those employers for purposes of collective bargaining. The notice must contain sufficient information to enable individuals to understand the effect of any suspension of benefits, including an individualized estimate, on an annual or monthly basis, of the effect on each participant or beneficiary. The notice must also contain certain other specified information.7 Notice must be provided in a form and manner prescribed in agency guidance, written in a manner so as to be understood by the average plan participant, and provided in written, electronic, or other appropriate form to the extent it is reasonably accessible to those to whom notice must be furnished.

7 The specified information includes a description of the factors considered by the plan sponsor in designing the benefit suspension; a statement that the application for suspension of benefits will be available on the Web site of the Department of the Treasury and that comments on the application will be accepted; information on the rights and remedies of plan participants and beneficiaries; if applicable, a statement about the appointment of a retiree representative, the date of appointment of the retiree representative, identifying information about the retiree representative (including whether the representative is a plan trustee) and how to contact the representative; and information on how to contact the Department of the Treasury for more information and assistance where appropriate.

Any notice provided under section 432(e)(9)(F)(i) will satisfy the requirement for notice of a significant reduction in benefits described in section 4980F. See section 432(e)(9)(F)(iv).

Suspension Applications

Section 432(e)(9)(G) describes the process for approval or rejection of a plan sponsor's application for a suspension of benefits. Under the statute, the Treasury Department, in consultation with the PBGC and the Labor Department, must approve an application upon finding that the plan is eligible for the suspensions and has satisfied the criteria of sections 432(e)(9)(C), (D), (E), and (F) (each described earlier). In evaluating whether a plan sponsor has met the criteria in section 432(e)(9)(C)(ii) (a plan sponsor's determination that, although all reasonable measures have been taken, the plan will become insolvent if benefits are not suspended), the plan sponsor's consideration of factors under that clause must be reviewed. The statute also requires that the plan sponsor's determinations in an application for a suspension of benefits be accepted unless they are clearly erroneous.

Section 432(e)(9)(G) also requires an application for a suspension of benefits to be published on the Web site of the Department of the Treasury and requires the Treasury Department to publish a Federal Register notice within 30 days of receiving a suspension application, soliciting comments from contributing employers, employee organizations, and participants and beneficiaries of the plan for which a suspension application was made, as well as other interested parties.

Within 225 days after an application for a suspension of benefits is submitted, the statute requires the Treasury Department, in consultation with the PBGC and the Labor Department, to approve or deny the application. If the plan sponsor is not notified that it has failed to satisfy one or more applicable criteria within that 225-day period, the application is deemed approved. If the application is denied, a notice to the plan sponsor must detail the specific reasons for the rejection, including reference to the specific requirement not satisfied. Approval or denial of an application is treated as final agency action for purposes of 5 U.S.C. 704 (that is, the approval or denial is treated as final agency action for purposes of the Administrative Procedure Act, Public Law 79-404, 60 Stat. 237, as amended (APA)).

Participant Vote on Proposed Benefit Reduction

If a suspension application is approved, it then goes to a vote of plan participants and beneficiaries. See section 432(e)(9)(H). The vote will be administered by the Treasury Department, in consultation with the PBGC and the Labor Department, within 30 days after approval of the suspension application. The plan sponsor is required to provide a ballot for a vote (subject to approval by the Treasury Department, in consultation with the PBGC and the Labor Department). The statute specifies information that the ballot must include.8 If a majority of plan participants and beneficiaries do not vote to reject the suspension, the statute requires the Treasury Department to issue a final authorization to suspend benefits within seven days after the vote.

8 This information includes a statement from the plan sponsor in support of the suspension; a statement in opposition to the suspension compiled from comments received in response to the Federal Register notice issued by Treasury within 30 days of receiving the suspension application; a statement that the suspension has been approved by the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor; a statement that the plan sponsor has determined that the plan will become insolvent unless the suspension takes effect; a statement that insolvency of the plan could result in benefits lower than benefits paid under the suspension; and a statement that insolvency of the PBGC would result in benefits lower than benefits otherwise paid in the case of plan insolvency.

If a majority of plan participants and beneficiaries vote to reject the suspension, the statute requires the Treasury Department, in consultation with the PBGC and the Labor Department, to determine whether the plan is a systemically important plan. A systemically important plan is a plan for which the PBGC projects the present value of projected financial assistance payments to exceed $1.0 billion, as indexed, if suspensions are not implemented.

If a majority of plan participants and beneficiaries vote to reject the suspension and the plan is not a systemically important plan, a final authorization to suspend benefits will not be issued. In such a case, the statute provides that the plan sponsor may submit a new application for approval of a suspension of benefits to the Treasury Department.

Within 30 days after a plan is determined to be a systemically important plan, the Participant and Plan Sponsor Advocate selected under ERISA may submit recommendations to the Treasury Department with respect to the suspension that was rejected by the vote or recommendations for any revisions to that suspension. Notwithstanding the vote rejecting the suspension, the statute requires the Treasury Department, in consultation with the PBGC and the Labor Department, to permit the plan sponsor to implement either the proposed benefit suspension or a modification by the Treasury Department, in consultation with the PBGC and the Labor Department, of that suspension. The Treasury Department must complete this requirement within 90 days after the results of a vote rejecting a suspension for a systemically important plan are certified, and a modification of the suspension by the Treasury Department is only permitted if the plan is still projected to avoid insolvency under the modification.

If the Treasury Department is required to permit the suspension or a modified suspension to go into effect in the case of a systemically important plan with respect to which there has been a vote rejecting the suspension, the statute requires the Treasury Department to issue the final authorization to suspend at a time sufficient to allow the suspension to be implemented by the end of the 90-day period following certification of the results of that vote.

Judicial Review

Section 432(e)(9)(I)(i) allows a plan sponsor to challenge a denial of an application for suspension only after the application is denied. Under the statute, an action challenging the approval of a suspension may be brought only following the issuance of a final authorization to suspend. The statute also provides that a court will review an action challenging approval of a suspension of benefits in accordance with 5 U.S.C. 706 (that is, the standard of review applicable for purposes of the APA) and will not grant a temporary injunction with respect to a suspension unless it finds a clear and convincing likelihood that the plaintiff will prevail on the merits. Under section 432(e)(9)(I)(iii), participants and beneficiaries affected by a suspension “shall not have a cause of action under this title.” An action challenging either the approval of a suspension of benefits or the denial of an application for a suspension of benefits may not be brought more than one year after the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of the cause of action. See section 432(e)(9)(I)(iv).

Explanation of Provisions I. Overview

These temporary regulations provide guidance on certain requirements under section 432(e)(9) regarding suspension of benefits for multiemployer defined benefit plans in critical and declining status. The temporary regulations do not address certain other requirements that are addressed in the text of the proposed regulations (REG-102648-15) set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the Federal Register. The provisions of these temporary regulations are cross referenced in the proposed regulations so that comments on these provisions may be included with comments on the proposed regulations. In addition to the proposed and temporary regulations, the procedural requirements for submitting an application to suspend benefits, as well as a model notice, are set forth in Rev. Proc. 2015-34.

II. General Rules on Suspension of Benefits

These temporary regulations provide that, subject to section 432(e)(9)(B) through (I), the plan sponsor of a multiemployer plan that is in critical and declining status within the meaning of section 432(b)(6) for a plan year may, by plan amendment, implement a suspension of benefits that the plan sponsor deems appropriate. Such a suspension is permitted notwithstanding the generally applicable anti-cutback provisions of section 411(d)(6). The plan amendment implementing a suspension of benefits must be adopted in a plan year in which the plan is in critical and declining status.

Under the regulations, once a plan is amended to suspend benefits, a plan may pay or continue to pay a reduced level of benefits pursuant to a suspension only if the terms of the plan are consistent with the requirements of section 432(e)(9) and the regulations.

III. Definitions

The temporary regulations include definitions for the terms pay status and plan sponsor. A person is in pay status under a multiemployer plan if, as described in section 432(j)(6), at any time during the current plan year, the person is a participant, beneficiary, or alternate payee under the plan and is paid an early, late, normal, or disability retirement benefit under the plan (or a death benefit under the plan related to a retirement benefit).

The term plan sponsor means the association, committee, joint board of trustees, or other similar group of representatives of the parties that establishes or maintains the multiemployer plan. However, in the case of a plan described in section 404(c), or a continuation of such a plan, the term plan sponsor means the association of employers that is the employer settlor of the plan.

IV. Definition of Suspension of Benefits and Related Rules

The temporary regulations provide that the term suspension of benefits means the temporary or permanent reduction, pursuant to the terms of the plan, of any current or future payment obligation of the plan with respect to any participant under the plan. A suspension of benefits can apply with respect to a participant of the plan regardless of whether the participant, beneficiary, or alternate payee has commenced receiving benefits before the effective date of the suspension of benefits. If a plan pays a reduced level of benefits pursuant to a suspension of benefits that complies with the requirements of section 432(e)(9), then the plan is not liable for any benefits not paid as a result of the suspension.

A suspension of benefits may be of indefinite duration or may expire as of a certain date. Under the regulations, if the suspension of benefits has an expiration date, that date must be specified in the plan amendment implementing the suspension.

The temporary regulations provide that a plan sponsor may amend the plan to eliminate some or all of a suspension of benefits, provided that the amendment satisfies the requirements that apply to benefit improvements in the proposed rules under section 432(e)(9)(E).

The temporary regulations clarify that, except as otherwise specified, all references to suspensions of benefits, increases in benefits, or resumptions of suspended benefits with respect to participants also apply with respect to benefits of beneficiaries or alternate payees (as defined in section 414(p)(8)) of participants.

V. Retiree Representative

A retiree representative must be selected for a plan with 10,000 or more participants. The temporary regulations implement this condition by requiring that a retiree representative be selected if 10,000 or more participants were reported on the most recently filed Form 5500, “Annual Return/Report of Employee Benefit Plan.” 9 The plan sponsor must select the retiree representative at least 60 days before the plan sponsor submits an application to suspend benefits. The retiree representative must be a plan participant who is in pay status and may or may not be a plan trustee.

9 On the Form 5500 for the 2014 plan year, this is the total number of participants as of the end of the plan year that is reported on Part II, Line 6f.

The role of the retiree representative is to advocate for the interests of the retired and deferred vested participants and beneficiaries of the plan throughout the suspension approval process. However, in the discretion of the plan sponsor, the retiree representative may continue in this role throughout the period of the benefit suspension. This would enable the retiree representative to monitor compliance with the ongoing requirements during the period of the suspension, such as the requirement that the plan sponsor make annual determinations that all reasonable measures to avoid insolvency have been taken and that a suspension is necessary to avoid insolvency as well as to monitor compliance with the rules relating to benefit improvements. The regulations refer to section 432(e)(9)(B)(v)(III) for rules relating to the fiduciary status of a retiree representative, but do not provide additional guidance with respect to this provision.

The plan must pay reasonable expenses incurred by the retiree representative, including reasonable legal and actuarial support, commensurate with the plan's size and funded status. Upon request, the plan sponsor must promptly provide the retiree representative with relevant information, such as plan documents and data, that is reasonably necessary to enable the retiree representative to perform the representative's role, described earlier under this paragraph V.

The temporary regulations permit a plan sponsor of a plan that has reported fewer than 10,000 participants to select a retiree representative in connection with an application for approval of a suspension of benefits in order to encourage such a plan sponsor to do so. If a retiree representative is selected for such a plan, the rules that apply to retiree representatives for plans with 10,000 or more participants (other than the rule concerning the size of the plan and the timing of the appointment) will apply.

VI. Conditions for Suspensions

A plan sponsor of a plan in critical and declining status 10 may suspend benefits only if the actuarial certification requirement in section 432(e)(9)(C)(i) and the plan-sponsor determinations requirements in section 432(e)(9)(C)(ii) are satisfied.

10 In making the projections related to whether a plan is in critical and declining status, the plan actuary's projections are required to be based on reasonable actuarial assumptions. Rev. Proc. 2015-34 requires disclosure of a 10-year history of certain critical assumptions for this purpose as well as for purposes of the conditions for suspensions required by section 432(e)(9)(C).

A. Actuarial Certification

Under the temporary regulations, the actuarial certification requirement in section 432(e)(9)(C)(i) is satisfied if, taking into account the proposed suspension of benefits (and, if applicable, a proposed partition of the plan), the plan's actuary certifies that the plan is projected to avoid insolvency within the meaning of section 418E, assuming the suspension of benefits continues until it expires by its own terms or if no such expiration date is set, indefinitely. The temporary regulations do not provide guidance on this topic. However, the proposed regulations provide rules for the comparable requirement that the suspension (in combination with a partition, if applicable) be reasonably estimated to avoid insolvency under section 432(e)(9)(D)(iv).

B. Plan-Sponsor Determinations

A plan may not suspend benefits unless the plan sponsor makes initial and annual determinations that the plan is projected to become insolvent unless benefits are suspended, although all reasonable measures to avoid insolvency have been taken and continue to be taken.

Under the temporary regulations, a plan satisfies the initial-plan-sponsor determinations requirement only if the plan sponsor determines that (1) all reasonable measures to avoid insolvency, within the meaning of section 418E, have been taken, and (2) the plan is projected to become insolvent within the meaning of section 418E unless the proposed suspension of benefits (or another suspension of benefits under section 432(e)(9)) is implemented for the plan.

In making its determination that all reasonable measures to avoid insolvency have been taken, the plan sponsor may take into account the non-exclusive list of factors set forth in section 432(e)(9)(C)(ii). In making the initial determination that the plan is projected to become insolvent without the proposed suspension of benefits (or another suspension under section 432(e)(9)), a plan sponsor may rely on the actuarial certification made pursuant to section 432(b)(3)(A)(i) that the plan is in critical and declining status for the plan year.

The rules relating to the annual-plan-sponsor determinations are included in the proposed regulations.

VII. Limitations on Suspensions

The proposed and temporary regulations reflect the individual and aggregate limitations on a suspension of benefits under section 432(e)(9)(D).11 The temporary regulations provide that after applying the individual limitations, the overall size and distribution of the suspension is subject to the aggregate limitations.

11 The temporary regulations refer to section 432(e)(9)(D)(vii) for additional rules applicable to certain plans, but do not provide additional guidance with respect to this provision.

The temporary regulations provide that the monthly benefit payable to a participant, beneficiary, or alternate payee may not be reduced below 110 percent of the monthly benefit that would be guaranteed by the PBGC under section 4022A of ERISA if the plan were to become insolvent as of the effective date of the suspension. The proposed regulations provide more detailed rules for applying this limitation.

The temporary regulations reflect the statutory prohibition in section 432(e)(9)(D)(iii) on applying a suspension of benefits to benefits based on disability (as defined under the plan). The proposed regulations include more detailed rules for applying this limitation.

The rules regarding the age-based limitation of section 432(e)(9)(D)(ii) and the aggregate limitations of section 432(e)(9)(D)(iv) and (vi) are set forth in the proposed regulations.

In any case in which a suspension of benefits with respect to a plan is made in combination with a partition of the plan, the suspension of benefits may not take effect prior to the effective date of the partition. This requirement will not be satisfied if the partition order under section 4233 of ERISA has not been provided to the Treasury Department by the last day of the 225-day review period described in section 432(e)(9)(G)(iii), after which deemed approval of the suspension would occur.

VIII. Benefit Improvements

The rules regarding restrictions on benefit improvements are set forth in the proposed regulations.

IX. Notice of Proposed Suspension

The temporary regulations prescribe rules implementing the statutory notice requirements in section 432(e)(9)(F).

Specifically, the temporary regulations require the plan sponsor to provide notice of a proposed suspension to all plan participants, beneficiaries of deceased participants, and alternate payees (regardless of whether their benefits are proposed to be suspended) except those who cannot be contacted by reasonable efforts; each employer that has an obligation to contribute (within the meaning of section 4212(a) of ERISA) under the plan; and each employee organization which, for purposes of collective bargaining, represents plan participants employed by such an employer. The temporary regulations provide two examples illustrating what efforts constitute reasonable efforts to contact individuals for purposes of this notice requirement. These examples indicate that it is not sufficient to merely send notices to the individuals' last known mailing addresses and illustrate additional steps that may be used to satisfy these requirements if the plan sponsor becomes aware that some individuals did not receive notice.

The temporary regulations require the notice to contain the following in order to satisfy the requirement that the notice contain sufficient information to enable plan participants and beneficiaries to understand the effect of the suspension of benefits:

• An individualized estimate, on an annual or monthly basis, of the effect of the suspension on the participant or beneficiary. However, if it is not possible to provide an individualized estimate on an annual or monthly basis of the quantitative effect of the suspension on the participant or beneficiary, such as in the case of a suspension that affects the payment of any future cost-of-living adjustment, a narrative description of the effect of the suspension;

• A statement that the plan sponsor has determined that the plan will become insolvent unless the proposed suspension (and, if applicable, the proposed partition) takes effect, and the year in which insolvency is projected to occur without a suspension of benefits (and, if applicable, a proposed partition);

• A statement that insolvency of the plan could result in benefits lower than benefits paid under the proposed suspension and a description of the projected benefit payments upon insolvency;

• A description of the proposed suspension and its effect, including a description of the different categories or groups affected by the suspension, how those categories or groups are defined, and the formula that is used to calculate the amount of the proposed suspension for individuals in each category or group;

• A description of the effect of the proposed suspension on the plan's projected insolvency;

• A description of whether the suspension will remain in effect indefinitely or will expire by its own terms; and

• A statement describing the right to vote on the suspension application.

The notice of proposed suspension may not include false or misleading information (or omit information so as to cause the information provided to be misleading). The notice is permitted to include information in addition to the required information that is listed under this paragraph IX., including information relating to an application for partition under section 4233 of ERISA, provided that it satisfies these requirements.

The notice of proposed suspension must be written in a manner that can be readily understood by the average plan participant. The temporary regulations provide that the Treasury Department will provide a model notice. The use of the model notice will satisfy the content requirement and the readability requirement with respect to the language provided in the model.

The temporary regulations provide that notice may be provided in writing or in electronic form to the extent that the electronic form is reasonably accessible to persons to whom the notice is required to be provided. Permissible electronic methods include those permitted under regulations of the Department of Labor at 29 CFR 2520.104b-1(c) and those described at § 54.4980F-1, Q&A-13(c) of the Excise Tax Regulations.

Section 432(e)(9)(F) provides that the notice of proposed suspension must be given “concurrently” with the submission of an application to the Treasury Department, but does not specify a precise timeframe for satisfying this requirement. Interpreting “concurrently” as meaning either simultaneously or on the same day was rejected because it would require the difficult synchronization of the plan sponsor's electronic submission of its application and its giving of notice in written and/or in electronic form. Because the temporary regulations require a plan sponsor to submit its application electronically but authorize it to give notice in writing, interpreting the term “concurrently” to allow a plan sponsor to give written notice a few days earlier than the electronic submission of the application will allow for the receipt of such written notices on or about the time that a plan sponsor submits its application. The temporary regulations thus permit a plan sponsor to give notice no earlier than four business days before the submission of its application.

The temporary regulations also anticipate that a plan sponsor is permitted to give written notice no later than four business days after the submission of its application. This period of time will enable the Department of the Treasury to make a preliminary “completeness check” of the application during the first two business days, and the plan sponsor two business days thereafter to give the required notices.12 This approach will help participants by minimizing the risk of confusion and plan expense. For example, if a plan sponsor submits an incomplete application, compiles the additional information, and then finds the individualized estimates that the plan sponsor already gave to be inaccurate (or simply takes too long to compile the additional information), the plan sponsor would have to re-send the notices, increasing the likelihood that the notice would not be understood by the average plan participant as a result of receiving two different notices, each with a different individualized estimate. Although the temporary regulations allow plan sponsors to give participants notice when or before the application is submitted, sponsors are encouraged to delay giving notice until after the Department of the Treasury provides notification that the application is complete. If additional individuals who are entitled to notice are located after the time notice is required to be delivered, the plan sponsor must give those newly located individuals notice as soon as practicable after they are located.

12 The completeness check is described under paragraph X. in this preamble (“Approval or denial of an application for suspension of benefits”).

The temporary regulations further provide that a notice of proposed suspension satisfies the requirement for notice of a significant reduction in benefits described in section 4980F that would otherwise be required as a result of that suspension of benefits. To the extent that other reductions accompany a suspension of benefits, such as a reduction in the future accrual rate described in section 4980F for active participants or a reduction in adjustable benefits under section 432(e)(8), notice that satisfies the requirements (including the applicable timing requirements) of section 4980F or section 432(e)(8), as applicable, must be provided.

X. Approval or Denial of an Application for Suspension of Benefits

The temporary regulations provide that the plan sponsor of a plan in critical and declining status for a plan year that seeks to suspend benefits must submit an application for approval of the proposed suspension of benefits to the Treasury Department. The Treasury Department will approve, in consultation with the PBGC and the Labor Department, a complete application upon finding that the plan is eligible for the suspension and has satisfied the criteria of section 432(e)(9)(C), (D), (E), and (F). An application must be submitted electronically.

After receiving a submission, the plan sponsor will be notified within two business days whether the submission constitutes a complete application. If the submission is a complete application, the application will be treated as submitted on the date on which it was originally submitted to the Treasury Department. If a submission is incomplete, the notification will inform the plan sponsor of the information that is needed to complete the submission and give the plan sponsor a reasonable opportunity to submit a complete application. In such a case, the complete application will be treated as submitted on the date on which the additional information needed to complete the application is submitted to the Treasury Department.

Additional guidance that may be necessary or appropriate with respect to applications, including procedures for submitting applications and the information required to be included in a complete application, may be published in the form of revenue procedures, notices, or other guidance published in the Internal Revenue Bulletin.

In the case of a plan sponsor that is not submitting an application for suspension in combination with an application to PBGC for a plan partition, the temporary regulations provide that the application for suspension generally will not be accepted unless the proposed effective date of the suspension is at least nine months after the date on which the application is submitted. This is to ensure adequate time to review the proposed suspension without a need to delay the effective date of the proposed suspension. A delayed effective date could require other changes to the design of the suspension. For example, if, as a result of a delayed effective date, the age-based limitation under section 432(e)(9)(D)(ii) applies to more participants than under the terms of the proposed suspension, then benefits of other participants may be subject to greater reductions in order to satisfy the limitation in section 432(e)(9)(D)(iv) that the suspension, in the aggregate, must be reasonably estimated to achieve, but not materially exceed, the level necessary to avoid insolvency. However, in appropriate circumstances, an earlier effective date may be permitted. Appropriate circumstances could include an application for a proposed suspension that is a modification of a previous submission that was withdrawn or denied.

In the case of an application for suspension in combination with an application for partition, the impact of a delayed effective date for the suspension would be larger benefits for retirees rather than a redesign of the suspension. Accordingly, these temporary regulations do not apply the rule described in the preceding paragraph to such an application. See Part 4233 of the PBGC regulations for a coordinated application process that applies in the case of a plan sponsor that is submitting an application for suspension in combination with an application to PBGC for a plan partition under section 4233 of ERISA.

The temporary regulations provide that, no later than 30 days after receiving a complete application, the application will be published on the Web site of the Department of the Treasury, and the Treasury Department will publish a notice in the Federal Register soliciting comments from contributing employers, employee organizations, and participants and beneficiaries of the plan for which an application was made, and other interested parties. The notice soliciting comments will generally request that comments be submitted no later than 45 days after publication of that notice in the Federal Register, but the comment period may be shorter in appropriate circumstances. Appropriate circumstances could include an application for a proposed suspension that is a modification of a previous submission that was withdrawn or denied. Comments received in response to this notice will be made publicly available.

Under the temporary regulations, a complete application will be deemed approved unless, within 225 days after the complete application is submitted, the Treasury Department notifies the plan sponsor that its application does not satisfy one or more of the requirements for approval. If the Treasury Department denies a plan sponsor's application, the notification of the denial will detail the specific reasons for the denial, including reference to the specific requirement or requirements not satisfied. If the Treasury Department approves a plan sponsor's application and believes that the plan is a systemically important plan, then the Treasury Department will notify the plan sponsor of that belief and that it will be required to provide individual participant data upon request. This data may be used in the event of a vote to reject the suspension in order to assist the Treasury Department in determining whether to permit a modification of the rejected suspension.

The temporary regulations provide that the Secretary of the Treasury may appoint a Special Master for purposes of section 432(e)(9). If a Special Master is appointed, the Special Master will be an employee of the Department of the Treasury, will coordinate the implementation of the regulations and the review of applications for the suspension of benefits and other appropriate documents, and will provide recommendations to the Secretary of the Treasury with respect to decisions required under these regulations.

Certain rules relating to the Treasury Department's review of an application under section 432(e)(9)(G) are included in the proposed regulations.

XI. Participant Vote on Proposed Benefit Reduction

The temporary regulations provide that if an application for suspension is approved by the Treasury Department, then the Treasury Department, in consultation with the PBGC and the Labor Department, will administer a vote of all plan participants and all beneficiaries of deceased participants (eligible voters). Any suspension of benefits will take effect only after the vote and after a final authorization to suspend benefits.

Under the temporary regulations, any ballot provided by the plan sponsor in connection with a vote on the suspension must be approved by the Treasury Department, in consultation with the PBGC and the Labor Department. The ballot must be written in a manner that can be readily understood by the average plan participant and may not include any false or misleading information. The information that is required to be included in the ballot is described in the proposed regulations.

The temporary regulations provide that unless a majority of all eligible voters vote to reject the suspension, it is permitted to go into effect. If a majority of all eligible voters vote to reject the suspension, the suspension is not permitted to go into effect, except that the suspension or a modified suspension will be permitted to go into effect if the plan is a systemically important plan as described later under this paragraph XI. A plan sponsor is permitted to submit a new suspension application to the Treasury Department for approval in any case in which a suspension is prohibited from taking effect as a result of a vote.

The temporary regulations set forth rules for systemically important plans. If a majority of all eligible voters vote to reject the suspension, the Treasury Department will consult with the PBGC and the Labor Department to determine if the plan is a systemically important plan. The Treasury Department is required to make this determination no later than 14 days after the results of the vote are certified. No later than 30 days after a determination that the plan is a systemically important plan, the Participant and Plan Sponsor Advocate selected under section 4004 of ERISA may submit recommendations to the Treasury Department with respect to the suspension or any revisions to the suspension.

If a plan is a systemically important plan for which a majority of all eligible voters vote to reject the suspension, then the Treasury Department is required to either permit the implementation of the suspension that was rejected by the vote or permit the implementation of a modification of that suspension. Under any such modification, the plan must be projected to avoid insolvency in accordance with section 432(e)(9)(D)(iv). No later than 60 days after the results of a vote to reject a suspension are certified, the Treasury Department will notify the plan sponsor that the suspension or modified suspension is permitted to be implemented.

The temporary regulations define a systemically important plan as a plan with respect to which the PBGC projects that the present value of financial assistance payments will exceed $1.0 billion if the suspension is not implemented. For calendar years beginning after 2015, this dollar amount will be replaced by an amount equal to the product of the dollar amount and a fraction, the numerator of which is the contribution and benefit base (determined under section 230 of the Social Security Act) for the preceding calendar year and the denominator of which is the contribution and benefit base for calendar year 2014. If that amount is not a multiple of $1.0 million, it will be rounded to the next lowest multiple of $1.0 million.

The temporary regulations provide that, in any case in which a proposed suspension (or a modification of a proposed suspension) is permitted to go into effect, the Treasury Department, in consultation with the PBGC and the Labor Department, will issue a final authorization to suspend with respect to the suspension. If a suspension is permitted to go into effect following a vote, the final authorization will be issued no later than seven days after the vote. If a suspension is permitted to go into effect following a determination that the plan is a systemically important plan, the final authorization will be issued at a time sufficient to allow the implementation of the suspension prior to the end of the 90-day period beginning on the date the results of the vote rejecting the suspension are certified. Under the temporary regulations, no later than 60 days after the certification, the Treasury Department will notify the plan sponsor that the suspension that was rejected by the vote or a modified suspension is permitted to be implemented.

The temporary regulations provide that, in any case in which a suspension of benefits with respect to a plan is made in combination with a partition of the plan under section 4233 of ERISA, the suspension of benefits is not permitted to take effect prior to the effective date of the partition.

Effective/Applicability Date

These regulations apply on and after June 17, 2015 and expire on June 15, 2018.

Availability of IRS Documents

For copies of recently issued revenue procedures, revenue rulings, notices and other guidance published in the Internal Revenue Bulletin, please visit the IRS Web site at http://www.irs.gov or contact the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

Special Analyses

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6) please refer to the Special Analyses section of the preamble to the cross-referenced notice of proposed rulemaking published in the Proposed Rules section in this issue of the Federal Register. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Contact Information

For general questions regarding these regulations, please contact the Department of the Treasury at (202) 622-1559 (not a toll-free number). For information regarding a specific application for a suspension of benefits, please contact the Department of the Treasury at (202) 622-1534 (not a toll-free number).

List of Subjects 26 CFR Part 1

Income taxes, reporting and recordkeeping requirements.

26 CFR Part 602

Reporting and recordkeeping requirements.

Amendments to the Regulations

Accordingly, 26 CFR parts 1 and 602 are amended as follows:

PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

26 U.S.C. 7805 * * *

Par. 2. Section 1.432(e)(9)-1T is added to read as follows:
§ 1.432(e)(9)-1T Benefit suspensions for multiemployer plans in critical and declining status (temporary).

(a) General rules on suspension of benefits—(1) General rule. Subject to section 432(e)(9)(B) through (I) and paragraphs (b) through (h) of this section, the plan sponsor of a multiemployer plan that is in critical and declining status (within the meaning of section 432(b)(6)) for a plan year may, by plan amendment adopted in the plan year, implement a suspension of benefits that the plan sponsor deems appropriate. Such a suspension is permitted notwithstanding the anti-cutback provisions of section 411(d)(6).

(2) Adoption of plan terms inconsistent with suspension requirements—(i) General rule. A plan may implement (or continue to implement) a reduction of benefits pursuant to a suspension of benefits only if the terms of the plan are consistent with the requirements of section 432(e)(9) and this section.

(ii) Changes in level of suspension. [Reserved]

(3) Organization of the regulation. This paragraph (a) contains definitions and general rules relating to a suspension of benefits by a multiemployer plan under section 432(e)(9). Paragraph (b) of this section defines a suspension of benefits and describes the length of a suspension, the treatment of beneficiaries and alternate payees under this section, and the requirement to select a retiree representative. Paragraph (c) of this section prescribes certain rules for the actuarial certification and plan-sponsor determinations that must be made in order for a plan to suspend benefits. Paragraph (d) of this section describes certain limitations on suspensions of benefits. Paragraph (e) of this section is reserved for rules on benefit improvements under section 432(e)(9)(E). Paragraph (f) of this section describes the requirement to provide notice in connection with an application to suspend benefits. Paragraph (g) of this section describes certain requirements with respect to the approval or denial of an application for a suspension of benefits. Paragraph (h) of this section contains certain rules relating to the vote on an approved suspension, systemically important plans, and the issuance of a final authorization to suspend benefits. Paragraph (j) of this section provides the effective/applicability date of this section. Paragraph (k) provides the expiration date.

(4) Definitions. The following definitions apply for purposes of this section—

(i) Pay status. A person is in pay status under a multiemployer plan if, as described in section 432(j)(6), at any time during the current plan year, the person is a participant, beneficiary, or alternate payee under the plan and is paid an early, late, normal, or disability retirement benefit under the plan (or a death benefit under the plan related to a retirement benefit).

(ii) Plan sponsor. The term plan sponsor means the association, committee, joint board of trustees, or other similar group of representatives of the parties that establishes or maintains the multiemployer plan. However, in the case of a plan described in section 404(c), or a continuation of such a plan, the term plan sponsor means the association of employers that is the employer settlor of the plan.

(iii) Effective date of suspension of benefits. [Reserved]

(b) Definition of suspension of benefits and related rules—(1) In general—(i) Definition. For purposes of this section, the term suspension of benefits means the temporary or permanent reduction, pursuant to the terms of the plan, of any current or future payment obligation of the plan with respect to any participant under the plan. A suspension of benefits may apply with respect to a participant of the plan regardless of whether the participant, beneficiary, or alternate payee commenced receiving benefits before the effective date of the suspension of benefits.

(ii) Plan not liable for suspended benefits. If a plan pays a reduced level of benefits pursuant to a suspension of benefits that complies with the requirements of section 432(e)(9) and this section, then the plan is not liable for any benefits not paid as a result of the suspension.

(2) Length of suspension—(i) In general. A suspension of benefits may be of indefinite duration or may expire as of a date that is specified in the plan amendment implementing the suspension.

(ii) Effect of a benefit improvement. A plan sponsor may amend the plan to eliminate some or all of a suspension of benefits, provided that the amendment satisfies the requirements that apply to a benefit improvement under section 432(e)(9)(E), in accordance with the rules of paragraph (e) of this section.

(3) Treatment of beneficiaries and alternate payees. Except as otherwise specified in this section, all references to suspensions of benefits, increases in benefits, or resumptions of suspended benefits with respect to participants also apply with respect to benefits of beneficiaries or alternate payees (as defined in section 414(p)(8)) of participants.

(4) Retiree representative—(i) In general—(A) Requirement to select retiree representative. The plan sponsor of a plan that intends to submit an application for a suspension of benefits and that has reported a total of 10,000 or more participants as of the end of the plan year for the most recently filed Form 5500, “Annual Return/Report of Employee Benefit Plan,” must select a retiree representative. The plan sponsor must select the retiree representative at least 60 days before the date the plan sponsor submits an application to suspend benefits. The retiree representative must be a plan participant who is in pay status. The retiree representative may or may not be a plan trustee.

(B) Role of retiree representative. The role of the retiree representative is to advocate for the interests of the retired and deferred vested participants and beneficiaries of the plan throughout the suspension approval process. In the discretion of the plan sponsor, the retiree representative may continue in this role throughout the period of the benefit suspension.

(ii) Reasonable expenses from plan. The plan must pay reasonable expenses incurred by the retiree representative, including reasonable expenses for legal and actuarial support, commensurate with the plan's size and funded status.

(iii) Disclosure of information. Upon request, the plan sponsor must promptly provide the retiree representative with relevant information, such as plan documents and data, that is reasonably necessary to enable the retiree representative to perform the role described in paragraph (b)(4)(i)(B) of this section.

(iv) Special rules relating to fiduciary status. See section 432(e)(9)(B)(v)(III) for rules relating to the fiduciary status of a retiree representative.

(v) Retiree representative for other plans. The plan sponsor of a plan that has reported fewer than 10,000 participants as of the end of the plan year for the most recently filed Form 5500, “Annual Return/Report of Employee Benefit Plan” is permitted to select a retiree representative. The rules in this paragraph (b)(4) (other than the rules in the first two sentences of paragraph (b)(4)(i)(A) of this section concerning the size of the plan and the timing of the appointment of the retiree representative) apply to such a representative.

(c) Conditions for suspension—(1) In general—(i) Actuarial certification and initial-plan-sponsor determinations. The plan sponsor of a plan in critical and declining status for a plan year may suspend benefits only if the actuarial certification requirement in paragraph (c)(2) of this section and the initial-plan-sponsor determinations requirement in paragraph (c)(3) of this section are met.

(ii) Annual requirement to make plan-sponsor determinations. [Reserved]

(2) Actuarial certification. A plan satisfies the actuarial certification requirement of this paragraph (c)(2) if, taking into account the proposed suspension of benefits (and, if applicable, a proposed partition of the plan under section 4233 of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829 (1974)), as amended (ERISA)), the plan's actuary certifies that the plan is projected to avoid insolvency within the meaning of section 418E, assuming the suspension of benefits continues until it expires by its own terms or if no such expiration date is set, indefinitely.

(3) Initial-plan-sponsor determinations—(i) General rule. A plan satisfies the initial-plan-sponsor determinations requirement of this paragraph (c)(3) only if the plan sponsor determines that—

(A) All reasonable measures to avoid insolvency, within the meaning of section 418E, have been taken; and

(B) The plan is projected to become insolvent within the meaning of section 418E unless the proposed suspension of benefits (or another suspension of benefits under section 432(e)(9)) is implemented for the plan.

(ii) Factors. In making its determination that all reasonable measures to avoid insolvency, within the meaning of section 418E, have been taken, the plan sponsor may take into account the following non-exclusive list of factors—

(A) Current and past contribution levels;

(B) Levels of benefit accruals (including any prior reductions in the rate of benefit accruals);

(C) Prior reductions (if any) of adjustable benefits;

(D) Prior suspensions (if any) of benefits under this section;

(E) The impact on plan solvency of the subsidies and ancillary benefits available to active participants;

(F) Compensation levels of active participants relative to employees in the participants' industry generally;

(G) Competitive and other economic factors facing contributing employers;

(H) The impact of benefit and contribution levels on retaining active participants and bargaining groups under the plan;

(I) The impact of past and anticipated contribution increases under the plan on employer attrition and retention levels; and

(J) Measures undertaken by the plan sponsor to retain or attract contributing employers.

(iii) Reliance on certification of critical and declining status. For purposes of the insolvency projection under paragraph (c)(3)(i)(B) of this section, a plan sponsor may rely on the actuarial certification made pursuant to section 432(b)(3)(A)(i) that the plan is in critical and declining status for the plan year in making the determination that the plan is projected to become insolvent unless benefits are suspended.

(4) Annual-plan-sponsor determinations. [Reserved]

(5) Failure to make annual-plan-sponsor determinations. [Reserved]

(d) Limitations on suspension—(1) In general. Any suspension of benefits with respect to a participant made by a plan sponsor pursuant to this section is subject to the individual limitations of sections 432(e)(9)(D)(i) through (iii), in accordance with the rules of paragraphs (d)(2) through (d)(4) of this section. After applying the individual limitations in sections 432(e)(9)(D)(i) through (iii), in accordance with the rules of paragraphs (d)(2) through (d)(4) of this section, the overall size and distribution of the suspension is subject to the aggregate limitations of sections 432(e)(9)(D)(iv) and (vi) in accordance with the rules of paragraphs (d)(5) and (d)(6) of this section. See section 432(e)(9)(D)(vii) for additional rules applicable to certain plans.

(2) Guarantee-based limitation—(i) General rule. The monthly benefit with respect to any participant may not be reduced below 110 percent of the monthly benefit payable to a participant, beneficiary, or alternate payee that would be guaranteed by the Pension Benefit Guaranty Corporation (PBGC) under section 4022A of ERISA if the plan were to become insolvent as of the effective date of the suspension.

(ii) PBGC guarantee. [Reserved]

(iii) Calculation of accrual rate. [Reserved]

(iv) Special rules for non-vested participants. [Reserved]

(v) Examples. [Reserved]

(3) Age-based limitation. [Reserved]

(4) Disability-based limitation—(i) General rule. Benefits based on disability (as defined under the plan) may not be suspended.

(ii) Benefits based on disability. [Reserved]

(5) Limitation on aggregate size of suspension. [Reserved]

(6) Equitable distribution. [Reserved]

(7) Effective date of suspension made in combination with partition. In any case in which a suspension of benefits with respect to a plan is made in combination with a partition of the plan, the suspension of benefits may not take effect prior to the effective date of the partition. This requirement will not be satisfied if the partition order under section 4233 of ERISA has not been provided to the Secretary of the Treasury by the last day of the 225-day period described in paragraph (g)(3)(i) of this section.

(e) Benefit improvements. [Reserved]

(f) Notice requirements—(1) In general. No suspension of benefits may be made pursuant to this section unless notice of the proposed suspension has been given by the plan sponsor to—

(i) All participants, beneficiaries of deceased participants, and alternate payees under the plan (regardless of whether their benefits are proposed to be suspended), except those who cannot be contacted by reasonable efforts;

(ii) Each employer who has an obligation to contribute (within the meaning of section 4212(a) of ERISA) under the plan; and

(iii) Each employee organization which, for purposes of collective bargaining, represents plan participants employed by an employer described in paragraph (f)(1)(ii) of this section.

(2) Content of notice—(i) In general. The notice described under paragraph (f)(1) of this section must contain—

(A) Sufficient information to enable a participant or beneficiary to understand the effect of any suspension of benefits, including an individualized estimate (on an annual or monthly basis) of the effect on that participant or beneficiary;

(B) A description of the factors considered by the plan sponsor in designing the benefit suspension;

(C) A statement that the application for approval of any suspension of benefits will be available on the Web site of the Department of the Treasury and that comments on the application will be accepted;

(D) Information as to the rights and remedies of plan participants and beneficiaries;

(E) If applicable, a statement describing the appointment of a retiree representative, the date of appointment of the representative, the role and responsibilities of the retiree representative, identifying information about the retiree representative (including whether the representative is a plan trustee), and how to contact the retiree representative; and

(F) Information on how to contact the Department of the Treasury for further information and assistance where appropriate.

(ii) Description of suspension of benefits. The notice described under paragraph (f)(1) of this section will not satisfy the requirements of paragraph (f)(2)(i) of this section unless it includes the following—

(A) If it is not possible to provide an individualized estimate on an annual or monthly basis of the quantitative effect of the suspension on a participant or beneficiary, such as in the case of a suspension that affects the payment of any future cost-of-living adjustment, a narrative description of the effect of the suspension;

(B) A statement that the plan sponsor has determined that the plan will become insolvent unless the proposed suspension takes effect, and the year in which insolvency is projected to occur without a suspension of benefits;

(C) A statement that insolvency of the plan could result in benefits lower than benefits paid under the proposed suspension and a description of the projected benefit payments upon insolvency;

(D) A description of the proposed suspension and its effect, including a description of the different categories or groups affected by the suspension, how those categories or groups are defined, and the formula that is used to calculate the amount of the proposed suspension for individuals in each category or group;

(E) A description of the effect of the proposed suspension on the plan's projected insolvency;

(F) A description of whether the suspension will remain in effect indefinitely or will expire by its own terms; and

(G) A statement describing the right to vote on the suspension application.

(iii) Readability requirement. A notice given under paragraph (f)(1) of this section must be written in a manner that is readily understandable by the average plan participant.

(iv) Model notice. The Secretary of the Treasury will provide a model notice. The use of the model notice will satisfy the content and readability requirements of this paragraph (f)(2) with respect to the language provided in the model.

(3) Form and manner—(i) Timing—(A) In general. A notice under paragraph (f)(1) of this section must be given no earlier than four business days before the date on which an application is submitted and no later than two business days after the Secretary of the Treasury notifies the plan sponsor that it has submitted a complete application, as described in paragraph (g)(1)(ii) of this section.

(B) Timing for lost participants. If additional individuals who are entitled to notice are located after the time period in paragraph (f)(3)(i)(A) of this section has elapsed, then the plan sponsor must give notice to these individuals as soon as practicable thereafter.

(ii) Method of delivery of notice—(A) Written or electronic delivery. A notice given under paragraph (f)(1) of this section may be provided in writing. It may also be provided in electronic form to the extent that the form is reasonably accessible to persons to whom the notice is required to be provided. Permissible electronic methods include those permitted under regulations of the Department of Labor at 29 CFR 2520.104b-1(c) and those described at § 54.4980F-1, Q&A-13(c) of the Excise Tax Regulations.

(B) No alternative method of delivery. [Reserved]

(iii) Additional information in notice. A notice given under paragraph (f)(1) of this section is permitted to include information in addition to the information that is required under paragraph (f)(2) of this section, including, if applicable, information relating to an application for partition under section 4233 of ERISA (such as the model notice at Appendix A of 29 CFR part 4233), provided that the requirements of paragraph (f)(3)(iv) of this section are satisfied.

(iv) No false or misleading information. A notice given under paragraph (f)(1) of this section may not include false or misleading information (or omit information in a manner that causes the information provided to be misleading).

(4) Other notice requirement. Any notice given under paragraph (f)(1) of this section satisfies the requirement for notice of a significant reduction in benefits described in section 4980F that would otherwise be required as a result of that suspension of benefits. To the extent that there are other reductions that accompany a suspension of benefits, such as a reduction in the future accrual rate described in section 4980F for active participants or a reduction in adjustable benefits under section 432(e)(8), notice that satisfies the requirements (including the applicable timing requirements) of section 4980F or section 432(e)(8), as applicable, must be provided.

(5) Examples. The following examples illustrate the requirement in paragraph (f)(1)(i) of this section to give notice to all participants, beneficiaries of deceased participants, and alternate payees, except those who cannot be contacted by reasonable efforts.

Example 1.

(i) Facts. A plan sponsor distributes notice of a proposed suspension of benefits to plan participants, beneficiaries of deceased participants, and alternate payees by mailing the notice to their last known mailing addresses, using the same information that it used to send the most recent annual funding notice. Of 5,000 such notices, 300 were returned as undeliverable. The plan sponsor takes no additional steps to contact the individuals for whom the notice was returned as undeliverable.

(ii) Conclusion. The plan sponsor did not make any effort beyond the initial mailing to locate the 300 individuals for whom the notice was returned as undeliverable. Therefore, the plan sponsor did not satisfy the requirement to provide notice to all participants, beneficiaries of deceased participants, and alternate payees under the plan (regardless of whether their benefits are proposed to be suspended), except those who cannot be contacted by reasonable efforts.

Example 2.

(i) Facts. The facts are the same as Example 1, but the plan sponsor contacts the bargaining parties to locate the missing individuals for whom the notice was returned as undeliverable. The plan sponsor then uses an Internet search tool, a credit reporting agency, and a commercial locator service to search for individuals for whom it was not able to obtain updated information from bargaining parties. Through these efforts, the plan sponsor locates the updated addresses of 250 of the 300 individuals whom it previously failed to contact. The plan sponsor mails notices to those individuals within one week of locating them.

(ii) Conclusion. By using effective search methods to find the previously missing individuals and promptly mailing the notice of suspension to them, the plan sponsor has satisfied the requirement to provide notice to all participants, beneficiaries of deceased participants, and alternate payees under the plan (regardless of whether their benefits are proposed to be suspended), except those who cannot be contacted by reasonable efforts.

(g) Approval or denial of an application for suspension of benefits—(1) Application—(i) In general. The plan sponsor of a plan in critical and declining status for a plan year that seeks to suspend benefits must submit an application for approval of the proposed suspension of benefits to the Secretary of the Treasury. The Secretary of the Treasury will approve, in consultation with the PBGC and the Secretary of Labor, a complete application described in paragraph (g)(1)(ii) of this section upon finding that the plan is eligible for the suspension and has satisfied the criteria of section 432(e)(9)(C), (D), (E), and (F), in accordance with the rules of paragraphs (c), (d), (e), and (f) of this section.

(ii) Complete application. After receiving a submission, the plan sponsor will be notified within two business days whether the submission constitutes a complete application. A complete application will be treated as submitted on the date that it was originally submitted to the Secretary of the Treasury. If a submission is incomplete, the notification will inform the plan sponsor of the information that is needed to complete the submission and give the plan sponsor a reasonable opportunity to submit a complete application. In such a case, the complete application will be treated as submitted on the date on which the additional information needed to complete the application is submitted to the Secretary of the Treasury.

(iii) Submission of application. An application described in this paragraph (g)(1) must be submitted electronically.

(iv) Requirements for application. Additional guidance that may be necessary or appropriate with respect to applications described in this paragraph (g)(1), including procedures for submitting applications and the information required to be included in a complete application, may be published in the form of revenue procedures, notices, or other guidance in the Internal Revenue Bulletin.

(v) Requirement to provide adequate time to process application. An application for suspension that is not submitted in combination with an application to PBGC for a plan partition under section 4223 of ERISA generally will not be accepted unless the proposed effective date of the suspension is at least nine months from the date on which the application is submitted. However, in appropriate circumstances, an earlier effective date may be permitted.

(vi) Plan sponsors that also apply for partition. See Part 4233 of the PBGC regulations for a coordinated application process that applies in the case of a plan sponsor that is submitting an application for suspension in combination with an application to PBGC for a plan partition under section 4233 of ERISA.

(2) Solicitation of comments—(i) In general. Not later than 30 days after receipt of a complete application described in paragraph (g)(1) of this section—

(A) The application for approval of the suspension of benefits will be published on the Web site of the Department of the Treasury; and

(B) The Secretary of the Treasury will publish a notice in the Federal Register soliciting comments from contributing employers, employee organizations, and participants and beneficiaries of the plan for which an application was made, and other interested parties.

(ii) Public comments. The notice described in paragraph (g)(2)(i)(B) of this section will generally request that comments be submitted no later than 45 days after publication of that notice in the Federal Register, but the comment period may be shorter in appropriate circumstances. Comments received in response to this notice will be made publicly available.

(3) Approval or denial—(i) Deemed approval. A complete application described in paragraph (g)(1)(ii) of this section will be deemed approved unless, within 225 days following the date that the complete application is submitted, the Secretary of the Treasury notifies the plan sponsor that its application does not satisfy one or more of the requirements described in this paragraph (g).

(ii) Notice of denial. If the Secretary of the Treasury denies a plan sponsor's application, the notification of the denial will detail the specific reasons for the denial, including reference to the specific requirement not satisfied.

(iii) Special rules for systemically important plans. If the Secretary of the Treasury approves a plan sponsor's application and the Secretary believes that the plan is or may be a systemically important plan (as defined in paragraph (h)(5)(iv) of this section), the Secretary will notify the plan sponsor of that belief and that it will be required to provide individual participant data upon request. In such a case, this data would be used in the event of a vote to reject the suspension (as described in paragraph (h)(4) of this section) in order to assist the Secretary in determining whether to permit a modification of the rejected suspension.

(iv) Agreement to stay 225-day period. [Reserved]

(4) Consideration of certain factors. [Reserved]

(5) Standard for accepting plan sponsor determinations. [Reserved]

(6) Plan-sponsor certifications with respect to plan amendments. [Reserved]

(7) Special Master. The Secretary of the Treasury may appoint a Special Master for purposes of this section. If a Special Master is appointed, the Special Master will coordinate the implementation of this section and the review of applications for the suspension of benefits and other appropriate documents, and will provide recommendations to the Secretary of the Treasury with respect to decisions required under this section.

(h) Participant vote on proposed benefit reduction—(1) Requirement for vote—(i) In general. If an application for suspension is approved under paragraph (g) of this section, then the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor, will administer a vote of all plan participants and beneficiaries of deceased participants (eligible voters), as described in section 432(e)(9)(H) and this paragraph (h). Any suspension of benefits will take effect only after the vote and after a final authorization to suspend benefits under paragraph (h)(6) of this section.

(ii) Communication by plan sponsor. [Reserved]

(2) Administration of vote. [Reserved]

(3) Ballots—(i) In general. [Reserved]

(ii) Additional rules—(A) Readability requirement. A ballot provided under section 432(e)(9)(H)(iii), in accordance with the rules of paragraph (h)(3)(i) of this section, must be written in a manner that is readily understandable by the average plan participant.

(B) No false or misleading information. A ballot provided under section 432(e)(9)(H)(iii), in accordance with the rules of paragraph (h)(3)(i) of this section, may not include false or misleading information (or omit information in a manner that causes the information provided to be misleading).

(iii) Ballot must be approved. Any ballot provided under section 432(e)(9)(H)(iii), in accordance with the rules of paragraph (h)(3)(i) of this section, must be approved by the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor, before it is provided.

(4) Implementing suspension following vote—(i) In general. Unless a majority of all eligible voters vote to reject the suspension that was approved under paragraph (g) of this section, the suspension will be permitted to go into effect. If a majority of all eligible voters vote to reject the suspension that was approved under paragraph (g) of this section, a suspension of benefits will not be permitted to go into effect except as provided under paragraph (h)(5)(iii) of this section relating to the implementation of a suspension for a systemically important plan (as defined in paragraph (h)(5)(iv) of this section).

(ii) Effect of not sending ballot. [Reserved]

(5) Systemically important plans—(i) In general. If a majority of all eligible voters vote to reject the suspension that was approved under paragraph (g) of this section, the Secretary of the Treasury will consult with the PBGC and the Secretary of Labor to determine if the plan is a systemically important plan. This determination will be made no later than 14 days after the results of the vote are certified.

(ii) Recommendations from Participant and Plan Sponsor Advocate. Not later than 30 days after a determination that the plan is a systemically important plan, the Participant and Plan Sponsor Advocate selected under section 4004 of ERISA may submit recommendations to the Secretary of the Treasury with respect to the suspension that was approved under paragraph (g) of this section or any revisions to the suspension.

(iii) Implementation of original or modified suspension by systemically important plans. If a plan is a systemically important plan for which a majority of all eligible voters vote to reject the suspension that was approved under paragraph (g) of this section, then the Secretary of the Treasury must determine whether to permit the implementation of the suspension that was approved under paragraph (g) of this section or whether to permit the implementation of a modification of that suspension. Under any such modification, the plan must be projected to avoid insolvency in accordance with section 432(e)(9)(D)(iv). No later than 60 days after the results of a vote to reject a suspension are certified, the Secretary of the Treasury will notify the plan sponsor that the suspension or modified suspension is permitted to be implemented.

(iv) Systemically important plan defined—(A) In general. For purposes of this paragraph (h)(5), a systemically important plan is a plan with respect to which the PBGC projects that the present value of financial assistance payments will exceed $1.0 billion if the suspension is not implemented.

(B) Indexing. For calendar years beginning after 2015, the dollar amount specified in paragraph (h)(5)(iv)(A) of this section will be replaced with an amount equal to the product of the dollar amount and a fraction, the numerator of which is the contribution and benefit base (determined under section 230 of the Social Security Act) for the preceding calendar year and the denominator of which is the contribution and benefit base for calendar year 2014. If the amount otherwise determined under this paragraph (h)(5)(iv)(B) is not a multiple of $1.0 million, the amount will be rounded to the next lowest multiple of $1.0 million.

(6) Final authorization to suspend—(i) In general. In any case in which a suspension is permitted to go into effect following a vote pursuant to section 432(e)(9)(H)(ii) and paragraph (h)(4) of this section, the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor, will issue a final authorization to suspend with respect to the suspension not later than seven days after the vote.

(ii) Systemically important plans. In any case in which a suspension is permitted to go into effect following a determination under paragraph (h)(5) of this section that the plan is a systemically important plan, the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor, will issue a final authorization to suspend, at a time sufficient to allow the implementation of the suspension prior to the end of the 90-day period beginning on the date the results of the vote are certified.

(iii) Plan partitions. Notwithstanding any other provision of this section, in any case in which a suspension of benefits with respect to a plan is made in combination with a partition of the plan, the suspension of benefits is not permitted to take effect prior to the effective date of the partition.

(i) [Reserved].

(j) Effective/applicability date. This section applies on and after June 17, 2015.

(k) Expiration date. The applicability of this section expires on June 15, 2018.

PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT Par. 3. The authority citation for part 602 continues to read as follows: Authority:

26 U.S.C. 7805

Par. 4. In § 602.101, paragraph (b) is amended by adding the following entry in numerical order to the table to read as follows:
§ 602.101 OMB Control numbers.

(b) * * *

CFR Part or section where identified and described Current OMB control no. *    *    *    *    * 1.432(e)(9)-1T 1545-2260 *    *    *    *    *
John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: June 9, 2015. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2015-14945 Filed 6-17-15; 11:15 am] BILLING CODE 4830-01-P
PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4233 RIN 1212-AB29 Partitions of Eligible Multiemployer Plans AGENCY:

Pension Benefit Guaranty Corporation.

ACTION:

Interim final rule.

SUMMARY:

This document contains an interim final rule prescribing the application process and notice requirements for partitions of eligible multiemployer plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Multiemployer Pension Reform Act of 2014 (MPRA). The interim final rule is published pursuant to section 122 of MPRA in order to carry out the provisions of section 4233 of ERISA. PBGC is soliciting public comments on the interim final regulation.

DATES:

Effective June 19, 2015. Comments must be submitted on or before August 18, 2015.

ADDRESSES:

Comments, identified by Regulation Identifier Number (RIN) 1212-AB29, may be submitted by any of the following methods:

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

Email: [email protected]

Fax: 202-326-4112.

Mail or Hand Delivery: Regulatory Affairs Group, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026. All submissions must include the Regulation Identifier Number for this rulemaking (RIN 1212-AB29). Comments received, including personal information provided, will be posted to www.pbgc.gov. Copies of comments may also be obtained by writing to Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026, or calling 202-326-4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4040.)

FOR FURTHER INFORMATION CONTACT:

Joseph J. Shelton ([email protected]), Assistant General Counsel, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026; 202-326-4400, ext. 6559; Kimberly J. Duplechain ([email protected]), Deputy Assistant General Counsel, Office of the General Counsel, 202-326-4400, ext. 3028.

SUPPLEMENTARY INFORMATION:

Executive Summary Purpose of the Regulatory Action

This interim final rule implements provisions of the Multiemployer Pension Reform Act of 2014 (MPRA) 1 that prescribe the statutory conditions and notice requirements that must be met before PBGC may partition an eligible multiemployer plan under section 4233 of ERISA.

1 Division O of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235 (128 Stat. 2130 (2014)).

PBGC's legal authority for this action comes from section 4002(b)(3) of ERISA, which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA, and section 4233 of ERISA, as amended by MPRA, which requires that the partition process be conducted in accordance with regulations prescribed by PBGC.

Major Provisions of the Regulatory Action

This rule adds a new part 4233 to PBGC's regulations. Part 4233 prescribes the application process to ensure the timely processing of applications for partition and related notice requirements.

Background PBGC and the Multiemployer Insurance Program

This interim final rule provides necessary guidance to plan sponsors on the application and notice requirements under section 4233 of ERISA for partitions of eligible multiemployer plans. To understand the effect of a partition of a multiemployer plan under MPRA, however, it is first helpful to understand the structure and operation of PBGC's multiemployer insurance program.

PBGC is a Federal corporation created under title IV of ERISA to guarantee the payment of pension benefits earned by more than 41 million American workers and retirees in nearly 24,000 private-sector defined benefit pension plans. The purpose of PBGC and the title IV insurance program is (1) to encourage the continuation and maintenance of voluntary private pension plans for the benefit of their participants; (2) to provide for the timely and uninterrupted payment of pension benefits under insured plans; and (3) to maintain premiums at the lowest level consistent with PBGC's obligations.

PBGC administers two insurance programs—one for single-employer defined benefit pension plans and a second for multiemployer defined benefit pension plans. This interim final rule applies only to the multiemployer program. The multiemployer program protects the benefits of approximately 10 million workers and retirees in approximately 1,400 plans. A multiemployer plan is a collectively bargained pension arrangement involving two or more unrelated employers, usually in a common industry, such as construction or trucking. Multiemployer plans pay an annual premium to PBGC. Under MPRA, the annual premium for 2015 increased from $13 to $26 per participant. For plan years beginning after 2015, the annual premium will increase based on increases in the national average wage index.

In general, a multiemployer plan may be terminated in one of two ways: (1) By plan amendment that “freezes” the accrual and vesting of benefits after a specified date, or that converts the plan into a defined contribution plan; or (2) every employer withdraws from the plan or ceases to have an obligation to contribute to the plan. In contrast to the single-employer program, however, plan termination is not an insurable event. In other words, plan termination does not trigger the payment of PBGC-insured, guaranteed benefits to participants and beneficiaries. The insurable event under the multiemployer program is plan insolvency, which generally occurs when a plan is unable to pay benefits at the level promised for the plan year.

The PBGC guarantee for multiemployer plans is lower than the guarantee for single-employer plans, and is based on a participant's credited service and accrual rate, as defined in section 4022A. The maximum monthly benefit payable by PBGC under the multiemployer program is equal to a participant's years of service multiplied by the sum of—

• 100 percent of the first $11 of the accrual rate, and

• 75 percent of the next $33 of the accrual rate.

Under this formula, benefits in excess of $3,960 per year are only partially guaranteed, and the maximum guarantee amount payable per year is capped at $12,870 (applicable to a participant with 30 years of service and with an annual benefit in excess of $15,840).2

2 The guarantee amount will exceed this amount if the participant has more than 30 years of service.

Another important difference between the single-employer program and the multiemployer program is the manner in which PBGC pays guaranteed benefits. Under the multiemployer program, PBGC does not pay guaranteed benefit amounts directly to participants and beneficiaries. Rather, when a multiemployer plan becomes insolvent, PBGC provides financial assistance in the form of loans to the insolvent plan sufficient to pay guaranteed benefit amounts to participants and beneficiaries. Despite this difference, the receipt of guaranteed benefit amounts from an insolvent multiemployer plan receiving financial assistance from PBGC is considered the receipt of benefits guaranteed by PBGC under title IV of ERISA.

MPRA Changes to Partition Rules

Although many multiemployer plans are healthy, a significant minority of financially troubled plans are projected to become insolvent over the next two decades.3 PBGC's multiemployer insurance program is also projected to become insolvent within that timeframe. During 2013 and 2014, congressional committees held several hearings on the problems facing these plans and PBGC. Those challenges include, among other things, investment market declines, employer withdrawals, and demographic changes.

3See FY 2013 PBGC Projections Report at http://www.pbgc.gov/documents/Projections-report-2013.pdf.

In December 2014, Congress enacted, and the President signed, the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235 (128 Stat. 2130 (2014)), of which MPRA is a part. MPRA contains a number of statutory reforms intended to help financially troubled multiemployer plans, and to improve the financial condition of PBGC's multiemployer insurance program. In addition to increased premiums, sections 121 and 122 of MPRA provide PBGC with new statutory authority to assist financially troubled multiemployer plans under certain conditions, if doing so would reduce potential future costs to PBGC and if PBGC can certify that its ability to meet existing financial assistance to other plans will not be impaired.

In addition, section 201 of MPRA amended the funding rules under section 305 of ERISA to add a new “critical and declining” status for financially troubled multiemployer plans. Under section 305(b)(6) of ERISA, a plan is in critical and declining status if it satisfies the criteria for critical status under section 305(b)(2), and is projected to become insolvent within the meaning of section 4245 of ERISA during the current plan year or any of the 14 succeeding plan years (19 succeeding plan years if the plan has a ratio of inactive participants to active participants that exceeds two to one, or if the funded percentage of the plan is less than 80 percent). Section 305(e)(9) of ERISA, as added by MPRA, prescribes new benefit suspension rules for multiemployer defined benefit plans in critical and declining status. The Department of the Treasury (Treasury) has interpretative jurisdiction over the subject matter in section 305 of ERISA and is contemporaneously issuing regulatory guidance in this area.4

4See Rev. Proc. 2015-34, and the temporary and proposed regulations under section 305(e)(9) of ERISA (section 432(e)(9) of the Internal Revenue Code).

As noted above, the purpose of this rule is to implement application and notice requirements under section 122 of MPRA, which prescribes the statutory conditions and notice requirements that must be met before PBGC may partition an eligible multiemployer plan. PBGC expects to publish a proposed rule on facilitated mergers involving critical and declining status plans under section 121 of MPRA in a separate rulemaking.

Multiemployer Plan Partitions—Prior Law

Before MPRA, PBGC could partition a multiemployer plan likely to become insolvent upon application by a plan sponsor or on its own accord. In either case, partition was only available in certain limited circumstances involving employer bankruptcies, and the liabilities transferred were restricted to the nonforfeitable benefits directly attributable to service with bankrupt employers, along with an equitable share of assets. The new plan created by the partition order was a successor plan under section 4022A of ERISA, and a terminated multiemployer plan to which section 4041A(d) applies.5 In addition, if the new plan did not have sufficient assets to pay the transferred benefits as of the date of the partition order, which generally was the case, it would be insolvent within the meaning of section 4245(b)(1) of ERISA. In such a case, PBGC provided financial assistance to the new plan so that it could make benefit payments to participants whose benefits had been transferred to the new plan, but reduced to the PBGC guarantee level. In contrast, participants in the ongoing plan continued to receive unreduced plan benefits. Due in part to the eligibility limitations for partition, PBGC had partitioned only a few plans prior to the enactment of MPRA.

5 Section 4041A(d) of ERISA provides that the plan sponsor of a plan which terminates under section 4041A(a)(2) (termination by mass withdrawal) shall reduce benefits and suspend benefit payments in accordance with section 4281 of ERISA.

Multiemployer Plan Partitions—MPRA

Section 122 of MPRA replaced the rules for partition with a new framework of rules. One of the most obvious changes is that PBGC may approve a partition without requiring an employer bankruptcy and, therefore, the benefits subject to transfer in a partition are no longer limited to those attributable to service with a bankrupt employer. The statute imposes a number of new eligibility requirements, however, such as a requirement that the plan be in critical and declining status as defined in section 305 of ERISA, and new statutory conditions and obligations that apply both before and after a partition, including a new, ongoing benefit payment obligation that applies to the eligible multiemployer plan that requested the partition.

Another important change under MPRA is the relationship between the partition rules under section 4233 and the suspension of benefits rules under section 305(e)(9) of ERISA.6 Section 305(e)(9) permits critical and declining status plans to apply to Treasury for approval to suspend certain benefits following the provision of specified notice, consideration of comments, Treasury review and approval, and satisfaction of other specified conditions (including a participant vote). One example of the interplay between an application for partition and an application for suspension of benefits is that before Treasury can approve an application for suspension, the plan actuary must certify that, taking into account a proposed suspension of benefits and, if applicable, a proposed partition under section 4233, the plan is projected to avoid insolvency within the meaning of section 4245, assuming the suspension of benefits continues until the suspension expires by its own terms or, if no such expiration date is set, indefinitely.

6 Section 305(e)(9)(B) defines the term “suspension of benefits” as the temporary or permanent reduction of any current or future payment obligation of the plan to any participant or beneficiary under the plan, whether or not in pay status at the time of the suspension of benefits.

Another example of the interplay between an application for partition and an application for suspension of benefits is that before PBGC may order a partition, it must first determine, in consultation with the Participant and Plan Sponsor Advocate,7 that the plan sponsor has taken (or is taking concurrently with an application for partition) all reasonable measures to avoid insolvency, including maximum benefit suspensions under section 305(e)(9), if applicable. In addition, section 305(e)(9)(D)(iv) provides that any suspension of benefits, in the aggregate (and, if applicable, in combination with a partition), must be reasonably estimated to achieve, but not materially exceed, the level that is necessary to avoid insolvency. Finally, section 305(e)(9)(D)(v) requires that in any case in which an application for suspension of benefits to Treasury is made in combination with an application for partition to PBGC, the suspension of benefits may not take effect prior to the effective date of the partition.

7 The Participant and Plan Sponsor Advocate position was created in 2012 by the Moving Ahead for Progress in the 21st Century Act (MAP-21). See section 4004 of ERISA for the rules governing this position.

Given the interplay between MPRA's partition and suspension of benefits provisions, PBGC staff has consulted with staff of Treasury and the Department of Labor in developing this interim final rule. PBGC will continue to work closely with these agencies as part of the interagency consultative process required under section 305(e)(9) of ERISA.

The following is a summary of the new statutory framework for partitions under MPRA.

Partition Application and Notice Requirements

Section 4233(a)(1) of ERISA states that, upon application by the plan sponsor of an eligible multiemployer plan, PBGC may order a partition of the plan in accordance with that section. As under prior law, PBGC's decision to order a partition is discretionary. Unlike prior law, however, the statute requires PBGC to make a determination not later than 270 days after the date such application was filed (or, if later, the date such application was completed), in accordance with regulations promulgated by PBGC.

In addition, section 4233(a)(2) states that not later than 30 days after submitting an application for partition, the plan sponsor shall notify the participants and beneficiaries of such application, in the form and manner prescribed by regulations issued by PBGC.

Eligibility Criteria for Partition

Section 4233(b) of ERISA contains five statutory conditions that must be satisfied before PBGC may order a partition. They are discussed below:

Critical and declining status. In accordance with section 4233(b)(1), the plan must be in critical and declining status as defined in section 305(b)(6) of ERISA. As noted above, a plan is in critical and declining status if the plan satisfies the criteria for critical status under section 305(b)(2), and is projected to become insolvent within the meaning of section 4245 during the current plan year or any of the 14 succeeding plan years (or 19 succeeding plan years if the plan has a ratio of inactive participants to active participants that exceeds two to one or if the funded percentage of the plan is less than 80 percent). Section 305(b)(3)(A)(i) requires an annual certification from the plan actuary on whether a plan is or will be in critical and declining status for such plan year. Treasury has interpretative jurisdiction over the subject matter in section 305 of ERISA.

PBGC determination on reasonable measures. Under section 4233(b)(2) of ERISA, PBGC must determine, after consultation with the Participant and Plan Sponsor Advocate, that the plan sponsor has taken (or is taking concurrently with an application for partition) all reasonable measures to avoid insolvency, including maximum benefit suspensions under section 305(e)(9) of ERISA, if applicable.

The term “maximum benefit suspensions” is not defined in section 305(e)(9) of ERISA.8 However, based on the structure and operation of section 305(e)(9)—specifically, the statutorily defined limitations and protections contained in section 305(e)(9)(D), which limits the maximum amount of a suspension so that the post-suspension benefit is no less than 110 percent of the PBGC guarantee under section 4022A, exempts certain categories of individuals based on their age, and exempts benefits based on disability—PBGC interprets the term “maximum benefit suspensions” in section 4233(b)(2) of ERISA to mean the maximum benefit suspensions permissible under section 305(e)(9). For example, the maximum benefit suspension permissible for an individual with a plan benefit based on disability would be zero, because benefits based on disability may not be suspended under section 305(e)(9)(D)(iii).

8 The term “maximum benefit suspensions” in section 4233(b)(2) of ERISA should not to be confused with the term “maximum suspendable benefits” under section 305(e)(9)(D)(ii)(ll).

The requirement under section 4233(b)(2) that a plan sponsor has taken (or is currently taking) all reasonable measures to avoid insolvency is similar to the demonstration that a plan sponsor must make under section 305(e)(9)(C)(ii) relating to an application for suspension of benefits. Under that provision, the plan sponsor must maintain a written record demonstrating that the plan is projected to become insolvent unless benefits are suspended, although all reasonable measures have been taken (and continue to be taken during the period of the benefit suspension).

Although it is possible for a plan to file only an application for partition (and not an application for suspension of benefits under section 305(e)(9) of ERISA), the only instance in which that may occur would be if all participants and beneficiaries are older than 80, and/or receive benefits based on disability, or have accrued benefits not greater than 110 percent of the monthly benefit guaranteed by PBGC under section 4022A. Therefore, PBGC expects that most applicants for partition will also apply to Treasury for a suspension of benefits.

While the statute does not require a plan sponsor to file concurrent applications for partition and suspension of benefits, PBGC strongly encourages plan sponsors to do so because of the interplay between these provisions. For example, under section 305(e)(9) of ERISA, it is necessary for Treasury to review whether a proposed suspension of benefits and partition combined will allow the plan to avoid insolvency, and both PBGC and Treasury must make overlapping findings for each application. Furthermore, participant communications may be simplified if participants and beneficiaries receive a notice of partition concurrently with that of suspension. Finally, applications for partition and suspension that are not closely coordinated may also make it difficult for the agencies to comply with the statutory timeframes.

Long-term loss and plan solvency. In accordance with section 4233(b)(3) of ERISA, PBGC must reasonably expect that—

• Partition will reduce PBGC's expected long-term loss with respect to the plan; and

• Partition is necessary for the plan to remain solvent.

Certification to Congress. In accordance with section 4233(b)(4) of ERISA, PBGC must certify to Congress that its ability to meet existing financial assistance obligations to other plans (including any liabilities associated with multiemployer plans that are insolvent or that are projected to become insolvent within 10 years) will not be impaired by the partition.

Source of funding. In accordance with section 4233(b)(5) of ERISA, the cost to PBGC arising from the partition must be paid exclusively from the PBGC fund for basic benefits guaranteed for multiemployer plans.

PBGC Partition Order

Upon PBGC's approval of an application for partition, section 4233(c) of ERISA provides that PBGC's partition order shall provide for a transfer to the plan created by the partition order (the successor plan) the minimum amount of the original plan's liabilities necessary for the original plan to remain solvent.

Sections 4233(d)(1) and (2) of ERISA describe the nature of the successor plan, and assign responsibility for its management. Specifically, section 4233(d)(1) provides that the plan created by the partition order is a successor plan to which section 4022A applies. Section 4233(d)(2) provides that the plan sponsor of the original plan and the administrator of such plan shall be the plan sponsor and administrator, respectively, of the successor plan.

Partition Withdrawal Liability Rule

As noted above, unlike the partition rule under prior law, MPRA imposes a number of ongoing statutory obligations on the solvent, original plan and its contributing employers. For example, section 4233(d)(3) of ERISA prescribes a new withdrawal liability rule that applies for 10 years following the date of the partition order. Under the new withdrawal liability rule, if an employer withdraws from the original plan within 10 years following the date of the partition, withdrawal liability is computed under section 4201 with respect to the original plan and the successor plan. If, however, the withdrawal occurs more than 10 years after the date of the partition order, withdrawal liability is computed under section 4201 only with respect to the original plan (and not with respect to the successor plan). In either case, withdrawal liability is payable to the original plan (and not the successor plan).

Continuing Payment Obligation

Section 4233(e)(1) imposes an ongoing benefit payment obligation on the original plan with respect to each participant or beneficiary of the original plan whose guarantee amount was transferred to the successor plan pursuant to a partition order. With respect to these individuals, the original plan must pay a monthly benefit for each month in which such benefit is in pay status following the effective date of the partition in an amount equal to the excess of—

• The monthly benefit that would be paid to such participant or beneficiary for such month under the terms of the plan (taking into account benefit suspensions under section 305(e)(9) and any plan amendments following the effective date of such partition) if the partition had not occurred, over

• The monthly benefit for such participant or beneficiary that is guaranteed under section 4022A.9

9 Because the benefit payment obligation under section 4233(e)(1) is based, in part, on the monthly benefit that is guaranteed under section 4022A, the amount of this benefit payment obligation is subject to change under section 4022A(f)(2)(C).

As a result of this continuing payment obligation, PBGC expects that participants and beneficiaries whose guarantee amounts are transferred to a successor plan, and who have a plan benefit that exceeds the PBGC guarantee (e.g., 110 percent of the PBGC guarantee amount, benefit based on disability, etc.), will continue to participate in, and retain a right to receive a benefit payment from, the original plan after the effective date of a partition order.

Benefit Improvement Premium Payments to PBGC

Section 4233(e)(2) of ERISA provides that in any case in which a plan provides a benefit improvement, as defined in section 305(e)(9)(E)(vi), that takes effect after the effective date of the partition, the original plan shall pay to PBGC for each year during the 10-year period following the partition effective date, an annual amount equal to the lesser of—

• The total value of the increase in benefit payments for such [plan] year that is attributable to the benefit improvement, or

• The total benefit payments from the successor plan for such [plan] year.

This payment must be made at the time of, and in addition to, any other premium imposed by PBGC under title IV of ERISA.10

10 Section 305(e)(9)(E)(vi) defines the term “benefit improvement” as a resumption of suspended benefits, an increase in benefits, an increase at the rate at which benefits accrue, or an increase in the rate at which benefits become nonforfeitable under the plan. As noted above, Treasury has interpretative jurisdiction over the subject matter in section 305 of ERISA.

Special Premium Rule

Section 4233(e)(3) of ERISA imposes a special premium rule on the original plan, which requires it to pay the premiums for participants whose guarantee amounts were transferred to the successor plan for each year during the 10-year period following the partition effective date.

Notice of Partition Order

In addition to the initial notice requirement under section 4233(a)(2) of ERISA, which applies to the plan sponsor, section 4233(f) imposes a notice requirement on PBGC. It states that not later than 14 days after the issuance of a partition order, PBGC must provide notice of the order to the Committee on Education and the Workforce of the House of Representatives; the Committee on Ways and Means of the House of Representatives; the Committee on Finance of the Senate; the Committee on Health, Education, Labor, and Pensions of the Senate; and any affected participants or beneficiaries.

PBGC Request for Information

On February 18, 2015, PBGC published in the Federal Register a request for information (RFI) to solicit information from interested parties on issues PBGC should consider in implementing sections 4231 and 4233 of ERISA, and received 20 comments in response to the RFI.11 PBGC has reviewed these comments and this interim final rule reflects a number of the suggestions contained in those comments.12

11 The RFI and comments are accessible at http://www.pbgc.gov/prac/pg/other/guidance/multiemployer-notices.html.

12 Treasury issued an RFI seeking comments on certain matters related to the suspension of benefit rules under section 432(e)(9) of the Internal Revenue Code (section 305(e)(9) of ERISA). The Treasury RFI and comments are accessible at http://www.regulations.gov/#!docketDetail;D=IRS-2015-0004.

In general, commenters supported the implementation of section 4233 of ERISA and urged PBGC to issue guidance in a timely manner. Most commenters emphasized a need for clear guidance from PBGC on the types of information, documents, data, and actuarial projections needed to complete an application for partition. A number of commenters suggested that whenever possible and consistent with statutory requirements, the application should be based on information that plans are already required to prepare, or information that plans could easily develop. Consistent with these comments, PBGC believes that the interim final rule strikes an appropriate balance between providing clear and detailed guidance on the required content of an application for partition and not being unduly burdensome.

A number of commenters requested guidance on PBGC's evaluation criteria and standards for approval. PBGC considered these comments, but concluded that given the nature of the analysis and determinations required under section 4233(b) of ERISA with respect to both the plan applicant and PBGC, it is not able to provide guidance in those areas at this time. As a result, PBGC will review each application for partition on a case-by-case basis in accordance with the statutory criteria in section 4233(b). Such experience may enable PBGC to develop appropriate guidance in those areas in the future.

There were also differing views on a number of other issues, including the required showing of solvency under ERISA section 4233, and whether there is a need for additional post-partition oversight by PBGC. As discussed below, PBGC interprets the term “remain solvent” to have the same meaning as “avoid insolvency” in section 305(e)(9)(D)(iv) of ERISA and the regulations thereunder. PBGC agrees with those commenters who suggested a need for post-partition oversight. In PBGC's view, additional oversight is necessary to ensure compliance with the partition order, statutory post-partition obligations of the original plan, and proper stewardship of PBGC financial assistance provided to the successor plan. A more detailed discussion of the regulatory changes and the RFI comments follows.

Regulatory Changes Overview

To implement MPRA's changes to section 4233 of ERISA, PBGC is adding a new part 4233, Partitions of Eligible Multiemployer Plans, to its regulations. Part 4233 provides guidance to multiemployer plan sponsors on the process for submitting an application for partition, the information required to be included in an application, notice requirements under section 4233(a)(2), including the form and manner of the notice, the notification process for PBGC decisions on applications for partition, the content of a partition order, and the scope of PBGC's continuing jurisdiction under a partition order.

Section-by-Section Discussion

Section 4233.1 of the regulation describes the purpose and scope of part 4233, which is to prescribe application and notice requirements for partition under section 4233 of ERISA. The procedures set forth in the regulation represent the exclusive means by which PBGC will review an application for partition under section 4233 of ERISA.

Section 4233.2 of the regulation defines key terms used in the regulation. The statute uses the terms “eligible multiemployer plan,” the “eligible multiemployer plan prior to the partition,” and the “plan that was partitioned,” to refer to the multiemployer plan that is the subject of the partition application under section 4233(a) of ERISA. To avoid confusion, the regulation uses the term “original plan” to refer to the eligible multiemployer plan under section 4233(b) of ERISA, and “successor plan” to refer to the plan created by the partition order under section 4233(d)(1) of ERISA.

The term “successor plan benefit” is the portion of the accrued nonforfeitable monthly benefit which would be guaranteed under section 4022A as of the effective date of the partition, calculated under the terms of the original plan without reflecting any changes related to a benefit suspension under section 305(e)(9) of ERISA. Because the payment of a successor plan benefit from a plan receiving financial assistance is the payment of a guaranteed benefit under title IV of ERISA, the definition of successor plan benefit makes clear that the payment of such benefits is subject to the limitations and conditions contained in sections 4022A(a)-(f) of ERISA.

The term “residual benefit” is the monthly benefit payable from the original plan to a participant or beneficiary whose benefit was transferred to a successor plan pursuant to a partition order. The residual benefit is the difference between the monthly benefit defined in section 4233(e)(1)(A) of ERISA (i.e., the monthly benefit that would be paid under the terms of the plan after taking into account benefit suspensions and any plan amendments following the effective date of the partition) and the successor plan benefit. The residual benefit is not subject to a separate guarantee under section 4022A of ERISA.

The term “remain solvent” has the same meaning as “avoid insolvency” in section 305(e)(9)(D)(iv) of ERISA, and is determined in the same manner and using the same methodology as is required under section 305(e)(9) and the Treasury regulations thereunder. This is based on the requirement under MPRA that Treasury make a finding that a plan is reasonably estimated to avoid insolvency taking into account both suspension and partition in the case of a plan that requires both to avoid insolvency.

Application Requirements

Section 4233.3 of the regulation provides general information on the application filing requirements, including the method of filing, who may file, and where to file an application for partition under section 4233 of ERISA.

Section 4233.4 of the regulation summarizes the information needed for PBGC to make a determination on whether an application is complete. It states that an application will not be considered complete unless the application includes the information specified in § 4233.5 (plan information), § 4233.6 (partition information), § 4233.7 (actuarial and financial information); § 4233.8 (participant census data), and § 4233.9 (financial assistance information). It also states that PBGC may require additional information it deems necessary to review an application, including information needed to calculate or verify the amount of financial assistance that would be necessary for a partition. Finally, section 4233.4 of the regulation also imposes an affirmative obligation on the plan sponsor to promptly notify PBGC in writing if the plan sponsor discovers that any material fact or representation contained in or relating to an application for partition, or in any supporting document, is no longer accurate, or has been omitted.

Section 4233.5 of the regulation identifies the various categories of plan-related information required for an application to be complete, such as formal plan documents, trust agreements, summary plan descriptions, summaries of material modifications, rehabilitation plans, Forms 5500, a current listing of employers who have an obligation to contribute to the plan, and the approximate number of participants for whom each employer is currently making contributions. PBGC expects that most, if not all, of the information required under this subsection should be readily available and accessible by plan sponsors, an issue also identified by several commenters.

Section 4233.6 of the regulation identifies information needed to evaluate the partition as proposed by the plan sponsor, such as the proposed structure, effective date, and a detailed description of any larger integrated transaction of which the proposed partition is a part (including, but not limited to, an application for suspension of benefits under section 305(e)(9)(G), or a merger under section 4231 of ERISA). If applicable, it also requires the plan sponsor to submit a copy of its application for suspension of benefits under section 305(e)(9)(G) of ERISA (including all attachments and exhibits). In addition, consistent with section 4233(b)(2) of ERISA, the regulation requires the plan sponsor to provide a detailed description of all measures the plan sponsor has taken (or is taking) to avoid insolvency, as well as those measures the plan sponsor considered taking but did not take, including the factor(s) the plan sponsor considered in making these determinations.13

13 PBGC is not defining the Participant and Plan Sponsor Advocate's consultative role in determining if the plan sponsor has taken all reasonable measures, but will let that role evolve on a case-by-case basis.

Finally, without limiting PBGC's ability to determine the final structure and amounts involved in a partition, § 4233.6 requires the plan sponsor to provide a detailed description of the estimated minimum amount of guaranteed benefit amounts the plan sponsor proposes to transfer in a partition, including:

• The estimated number of participants and beneficiaries (and, if applicable, alternate payees) whose benefits (or any portion thereof) would be transferred, including the number of retirees receiving payments (if any), terminated vested participants (if any), and active participants (if any).

• All supporting data, calculations, assumptions, and methods used to determine the estimated minimum amount of benefit liabilities.

• If applicable, a description of any classifications or specific group(s) of participants and beneficiaries whose benefits the plan sponsor proposes to transfer, and the plan sponsor's rationale or basis for selecting those classifications or groups.

Section 4233.7 of the regulation identifies actuarial and financial information requirements. The first two information requirements relate to plan actuarial reports and an actuarial certification, which should ordinarily be within the possession of the plan sponsor or plan actuary. Sections 4233.7(a)(3)-(8) of the regulation require the submission of certain actuarial and financial information specific to the proposed partition, which are necessary for PBGC to evaluate whether a partition is necessary for the plan to remain solvent.

Section 4233.8 of the regulation identifies the types of participant census data to include with an application for partition.

Section 4233.9 of the regulation requires the submission of certain information relevant to an application for financial assistance.

Initial Review Process

Section 4233.10 of the regulation prescribes an initial review process for the purpose of determining whether an application is complete under section 4233(a)(1) of ERISA. An application will not be deemed complete until PBGC has made an initial determination under the regulation. One of the RFI commenters noted that it would be helpful if guidance called for the trustees to be notified at the time an application is complete. Consistent with that comment, § 4233.10(c) provides that upon making a determination that an application is complete, PBGC will issue a written notice to the plan sponsor. Similarly, if PBGC determines that an application is incomplete, it will issue a written notice to the plan sponsor describing the information missing from the application.

Because PBGC's determination on whether an application is complete marks the beginning of the 270-day statutory review period under section 4233(a)(1) of ERISA and the 30-day notice period under section 4233(a)(2), § 4233.10(c) provides that the date of PBGC's written notice to a plan sponsor that an application is complete will mark the beginning of PBGC's 270-day review period under section 4233(a)(1) of ERISA, and the plan sponsor's 30-day notice period under section 4233(a)(2) of ERISA.

Section 4233.10(d) of the regulation provides that for a plan sponsor that is coordinating applications for partition and suspension of benefits, an initial determination that a partition application is complete will be conditioned on filing an application for benefit suspensions with Treasury within 30 days after receipt of written notice of the determination. Because a multiemployer plan must suspend benefits to the maximum extent possible to be eligible for a partition, the effect of a suspension on the plan is integral to PBGC's evaluation of the partition. Moreover, this rule will ensure that participants and other interested parties receive notice of the plan's proposed suspension, which must be given concurrently with an application for suspension, in advance of or at the same time as they receive notice of an application for partition, assisting in their understanding of the integrated transaction. Section 4233.13 facilitates the provision of a combined notice of application for benefit suspensions and partition. A copy of the completed application for benefit suspensions must be provided to PBGC under § 4233.6.

Finally, recognizing the importance of early PBGC engagement on partitions, § 4233.10(e) states that the initial review process is not intended to preclude a plan sponsor from contacting PBGC on an informal basis to discuss a potential partition application. Allowing for such discussions in advance of an application for partition is consistent with a number of the RFI comments. For example, in discussing the difficulties faced by severely distressed plans that will require both a partition and maximum benefit suspensions to remain solvent, one commenter noted that in light of the time and costs involved in the benefit suspension process, it is not in the interests of anyone involved for trustees to apply for a suspension without preliminary feedback from PBGC on the feasibility of partition.

Similarly, another commenter noted that guidance should encourage plans to contact PBGC before making any substantive decisions on how to approach a potential partition application. Given the many complexities and uncertainties involved in a partition, including the fact that PBGC's authority to order a partition will depend, in part, on whether the proposed partition would impair PBGC's ability to meet existing financial assistance obligations to other plans, PBGC agrees with these comments and encourages plans to contact PBGC and engage in informal discussions on these and other issues before making a formal application.

Notice Requirements

Section 4233.11 describes the timing requirements applicable to furnishing the notice to interested parties under section 4233(b) of ERISA, and the information that must be included in the notice. Section 4233.11(a) of the regulation requires the plan sponsor to send the notice to interested parties not later than 30 days after receipt of a determination under § 4233.10(c), and provides a cross-reference to filing rules in PBGC's regulation on Filing, Issuance, Computation of Time, and Record Retention (29 CFR part 4000).

Section 4233.11(b) of the regulation prescribes content requirements for the notice of application for partition. The information required to be included in the notice is necessary to ensure that it provides adequate notice to interested parties on the meaning of a partition; the condition of the plan; and the effect of a partition on the plan, participants and beneficiaries, the plan sponsor, and contributing employers. In addition, the notice must include contact information for the plan sponsor, PBGC, and the Participant and Plan Sponsor Advocate.

PBGC is providing model notices that may be used by a plan sponsor. The model notices, which can be found in Appendix A of the regulation, may be used or adapted by plan sponsors to meet the notice requirements under section 4233(a)(2) of ERISA. Use of the model notices is not required, but will be deemed to satisfy the requirements of section 4233(a)(2) of ERISA and this part. PBGC specifically requests comments on the form and content of the model notices, including what, if any, additional information should be included in the model notices.

Determination Process

Section 4233.12 of the regulation describes the timing and manner in which PBGC will notify a plan sponsor of PBGC's decision on an application for partition. As noted above in the discussion of the initial review process, PBGC will approve or deny an application in accordance with the standards set forth in section 4233(b) of ERISA within 270 days after issuing notice to the plan sponsor of the completed application under § 4233.10(c).14 If PBGC denies the application, PBGC's written decision will state the reason(s) for the denial. If PBGC approves the application, PBGC will issue a partition order in accordance with § 4233.14 and section 4233(c) of ERISA. The decision to approve or deny an application for partition under section 4233 of ERISA is within PBGC's discretion, and is a final agency action not subject to PBGC's rules for reconsideration or administrative appeal.

14 As noted above, section 4233(b) sets forth five statutory conditions that must be satisfied before PBGC may order a partition. PBGC will review each application for partition on a case-by-case basis in accordance with the statutory criteria in section 4233(b). PBGC's determination under section 4233(b)(2) will be made in consultation with the Participant and Plan Sponsor Advocate.

Section 4233.12(c) describes an optional conditional determination process for plan sponsors who file applications for partition and a suspension of benefits. This provision is in response to those commenters who urged PBGC to create a conditional, or accelerated, approval process. With respect to this issue, one commenter noted that a multiemployer plan that needs a partition and suspension to become solvent should not have to go through a suspension of benefits vote by participants only to have its application for partition denied by PBGC, and consequently have to inform its participants that although they voted for the suspension of benefits, the plan cannot proceed with the suspension because PBGC denied the application for partition.

Similarly, noting that the suspension process is likely to be long and costly, another commenter stated that because an approved suspension cannot be implemented before the effective date of the related partition, and because the magnitude of any needed partition typically increases with time, guidance (and any related internal procedures) should permit PBGC to issue a partition order prior to, but conditioned upon approval and implementation of, the suspension.

Consistent with these and other comments, § 4233.12(c) provides that, at the request of a plan sponsor, PBGC may, in its discretion, issue a preliminary approval of an application conditioned on Treasury's final authorization to suspend benefits under section 305(e)(9) of ERISA. The regulation requires that the conditional approval include a written statement of preliminary findings, conclusions, and conditions. A partition will only become effective, however, upon satisfaction of the required conditions, and the issuance of an order of partition under section 4233(c) of ERISA.

Coordinated Application Process for Partition and Benefit Suspension

Section 4233.13 of the regulation provides special rules for plan sponsors who file applications for partition under section 4233 of ERISA with PBGC, and benefit suspensions under section 305(e)(9) of ERISA with Treasury. Section 4233.13(a) describes the interagency coordination process applicable to such plans.

In response to RFI comments urging PBGC and Treasury to allow for a combined notice of application for benefit suspension and partition, § 4233.13(b) provides that a plan sponsor may combine the model notice provided at Appendix A with the model notice contained in Rev. Proc. 2015-34 to satisfy the notice requirements of this part.

Partition Order

Section 4233.14 of the regulation describes the content of a PBGC partition order. It provides that the partition order will describe the liabilities to be transferred to the successor plan, and the manner in which financial assistance will be provided to the successor plan by PBGC. Section 4233.14(a) states that the partition order shall set forth PBGC's findings and conclusions on the application for partition, the effective date of partition, the obligations and responsibilities of the plan sponsor of the original plan and the successor plan, and such other information as PBGC may deem appropriate.

Section 4233.14(b) provides that the partition order will set forth the terms and conditions of the partition, and will incorporate by reference the applicable requirements under sections 4233(d) and 4233(e) of ERISA. Finally, § 4233.14(b) requires that the plan sponsor of the original plan and the successor plan amend the original plan and successor plan, respectively, to reflect the benefits payable to participants and beneficiaries resulting from the partition order. While the regulation does not require a plan sponsor to submit a draft amendment to the original plan or a draft successor plan document with an application for partition, PBGC will require the submission of these and other related documents pursuant to § 4233.4(b) before it will issue a partition order.

Nature and Operation of Successor Plan

Section 4233.15 of the regulation describes the nature and operation of the successor plan created by the partition order. Section 4233(d)(1) of ERISA states that the plan created by the partition order is a successor plan to which section 4022A of ERISA applies. The statutory cross-reference to section 4022A of ERISA makes clear that the portion of a participant's or beneficiary's benefit transferred to a successor plan is subject to and limited by section 4022A of ERISA. The aggregate amount of benefits subject to transfer is further limited by section 4233(c) of ERISA, which states that PBGC's partition order shall provide for a transfer of the “minimum amount of the [original] plan's liabilities necessary for the [original] plan to remain solvent.” The statutory reference to successor plan status under section 4233(d)(1) is relevant under title IV for purposes of coverage determinations under section 4021 of ERISA, and for determining the period of time for which a benefit or a benefit increase has been in effect under section 4022A(b)(1) of ERISA.

Consistent with the statute, § 4233.15(a) of the regulation provides that the plan created by the partition order is a successor plan to which section 4022A applies. Although the statute does not reference section 4245 of ERISA or the solvency of the successor plan, § 4233.15(a) also states that the successor plan is an insolvent plan under section 4245 of ERISA. A successor plan is insolvent as of the effective date of a partition order because the order will provide for a transfer of guaranteed benefit amounts (the minimum amount of the original plan's liabilities necessary for it to remain solvent) but no corresponding transfer of assets. Therefore, as of the effective date of the partition order, the successor plan will be insolvent within the meaning of section 4245 of ERISA because it will not have sufficient available resources to pay benefits under the plan when due for the plan year. The guaranteed benefit amounts transferred to the successor plan will be paid with PBGC financial assistance in an amount sufficient to enable the plan to pay such benefits under section 4261 of ERISA.

Section 4233.15(b) states that the successor plan is also treated as a terminated multiemployer plan to which section 4041A(d) of ERISA applies because there will be no contributing employers with an obligation to contribute to the successor plan as of the effective date of the partition order. The treatment of the successor plan as a terminated plan under section 4041A(a)(2), however, is not taken into account for purposes of determining withdrawal liability of any contributing employer to the original plan. Under section 4233(d)(3) of ERISA, in the event an employer withdraws from the original plan within 10 years following the effective date of the partition order, withdrawal liability shall be computed under section 4201 with respect to both the original plan and the plan created by the partition order.

Consistent with section 4233(d)(2) of ERISA, § 4233.15(c) provides that the plan sponsor of an eligible multiemployer plan prior to the partition and the administrator of such plan shall be the plan sponsor and the administrator, respectively, of the successor plan. PBGC retains the right to remove and replace the plan sponsor of the successor plan pursuant to section 4042(b)(2) of ERISA.

Coordination of Benefits Under Original Plan and Successor Plan

Section 4233.16 of the regulation describes the relationship and interaction between the residual benefit and the successor plan benefit, and the treatment of such benefits under section 4022A of ERISA. Section 4233.16(a) provides that subject to the limitations contained in section 4022A of ERISA, the only benefits payable under a successor plan are successor plan benefits as defined in § 4233.2. While the only benefits payable under a successor plan are successor plan benefits, which are subject to the limitations and conditions contained in section 4022A, participants and beneficiaries whose guaranteed benefit amounts are transferred to a successor plan will also generally retain a right to receive a residual benefit under the original plan pursuant to section 4233(e)(1) of ERISA.15 Section 4233.2 of the regulation defines the term “residual benefit” to mean the difference between the monthly benefit under section 4233(e)(1)(A) of ERISA and the successor plan benefit. The following example illustrates the benefit payment responsibilities of an original plan and a successor plan in a partition:

15 Section 4233(e)(1) requires the original plan to pay a monthly benefit for each month in which such benefit is in pay status following the effective date of the partition in an amount equal to the excess of the monthly benefit that would be paid to such participant or beneficiary for such month under the terms of the plan (taking into account benefit suspensions under section 305(e)(9) and any plan amendments following the effective date of such partition) if the partition had not occurred, over the monthly benefit of such participant or beneficiary which is guaranteed under section 4022A.

Assume Plan X has $200 million in accrued liabilities and $75 million in assets. Annual benefit payments total $15 million under the Plan. Plan X is projected to become insolvent within 10 years. The actuary for Plan X advises the Board of Trustees of Plan X that maximum benefit suspensions under section 305(e)(9) of ERISA would reduce liabilities to $130 million and reduce benefit payments in the years following a partition to $10 million per year.

The actuary for Plan X estimates that a partition under section 4233 of ERISA transferring $50 million of guarantee-liabilities payable by PBGC and corresponding benefit payments of $4 million per year to a successor plan, in combination with maximum benefit suspensions, would enable Plan X to avoid insolvency within the meaning of section 4245. PBGC financial assistance payable to the successor plan would cover $4 million in annual guaranteed payments under the successor plan. Plan X would pay a total of $6 million in benefits in the year following partition, consisting of—

• The additional residual benefit amounts necessary to raise the benefit level for participants and beneficiaries with benefits under the successor plan to the same amount they would have received under Plan X if the partition had not occurred, plus

• Benefit payments for the participants and beneficiaries whose benefits were not transferred to the successor plan.

Assume that before the partition, Participant A, a retired participant with 25 years of service, received a Plan X benefit of $1,500 per month at normal retirement age payable as a single life annuity. Plan X proposes to transfer the guarantee portion of Participant A's benefit to the successor plan. Since Participant A's monthly accrual rate exceeds $44 ($1,500 ÷ 25 = $60), the guarantee amount (applying the guarantee formula under section 4022A(c)) is $893.75 ($35.75 × 25 years of service = $893.75). If maximum benefit suspensions are approved, Participant A's benefit would be reduced to 110 percent of his monthly guaranteed benefit amount (Participant A is not protected by the age limitations or the limitations on suspension of benefits based on disability under section 305(e)(9)(D) of ERISA). Upon the effective date of the partition, Participant A would receive a PBGC-guaranteed monthly benefit of $893.75 from the successor plan (the successor plan benefit), funded by PBGC financial assistance, and an $89.38 monthly residual benefit funded by Plan X.16

16 Participant A's residual benefit of $89.38 is the portion of Participant A's monthly benefit (taking into account benefit suspensions) that is not transferred to the successor plan as part of the guarantee amount payable by PBGC. As such, it would not be subject to a separate guarantee under section 4022A of ERISA.

Section 4233.16(c) of the regulation provides that when a participant's or beneficiary's benefit is partially or wholly transferred to a successor plan, the PBGC guarantee applicable to such benefit is transferred to, and becomes payable under, the successor plan. The benefit remaining in the original plan as of the effective date of the partition (the residual benefit), if any, is not subject to a separate guarantee, and any increase in the PBGC guarantee amount payable under the original plan will arise solely, if at all, due to an increase in the accrued benefit under a plan amendment following the effective date of the partition, or an additional accrual attributable to service after the effective date of the partition.

Section 4233.16(d) provides that subject to the conditions contained in section 4261 of ERISA, PBGC shall provide financial assistance to the successor plan in an amount sufficient to enable the successor plan to pay only the portion of the PBGC-guaranteed benefits transferred to the successor plan pursuant to the partition order, and reasonable and necessary administrative expenses if approved by PBGC. The receipt of benefits under a multiemployer plan receiving financial assistance from PBGC shall be considered the receipt of amounts from PBGC of guaranteed benefits.

Finally, section 4233.16(e) provides that the plan sponsors of an original plan and a successor plan may, but are not required to, pay monthly benefits payable under the original plan and successor plan, respectively, in a single monthly payment pursuant to a written cost sharing or expense allocation agreement between the plans.

Continuing Jurisdiction

Section 4233.17 of the regulation describes PBGC's continuing jurisdiction over the original plan and the successor plan. As noted above in the discussion of the RFI comments, while there were differing views on the need for additional post-partition oversight by PBGC to ensure compliance with MPRA's post-partition requirements, PBGC has determined that additional oversight is necessary to ensure compliance with the partition order, statutory post-partition payment obligations, and proper stewardship of PBGC financial assistance. Consistent with this view, § 4233.16(a) provides that PBGC will continue to have jurisdiction over the original plan and the successor plan to carry out the purposes, terms, and conditions of the partition order, section 4233 of ERISA, and the regulations thereunder. Section 4233.16(b) states that PBGC may, upon notice to the plan sponsor, make changes to the partition order in response to changed circumstances consistent with section 4233 of ERISA and Part 4233.

Request for Comments

In addition to the specific requests for comments identified above, PBGC encourages all interested parties to submit their comments, suggestions, and views concerning the provisions of this interim final rule, including the model notices. In particular, PBGC is interested in any area in which additional guidance may be needed.

Applicability

The amendments in this interim final rule are applicable to applications for partition submitted to PBGC on or after June 19, 2015.

Compliance With Rulemaking Guidelines Executive Orders 12866 “Regulatory Planning and Review” and 13563 “Improving Regulation and Regulatory Review”

Having determined that this rulemaking is a “significant regulatory action” under Executive Order 12866, the Office of Management and Budget has reviewed this proposed rule under Executive Order 12866.

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 potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Orders 12866 and 13563 require a comprehensive regulatory impact analysis be performed for any economically significant regulatory action, defined as an action that would result in an annual effect of $100 million or more on the national economy or which would have other substantial impacts.

Pursuant to section 1(b)(1) of Executive Order 12866 (as amended by Executive Order 13422), PBGC has determined that regulatory action is required in this area. Principally, this regulatory action is necessary to implement the application and notice requirements under section 4233 of ERISA as amended and restated by MPRA. In accordance with OMB Circular A-4, PBGC also has examined the economic and policy implications of this interim final rule and has concluded that the action's benefits justify its costs.

Under Section 3(f)(1) of Executive Order 12866, a regulatory action is economically significant if “it is likely to result in a rule that may . . . [h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” OMB has determined that this interim final rule does not cross the $100 million threshold for economic significance and is not otherwise economically significant. Most of the economic effect relating to partitions will be attributable to benefit suspensions.

Based on a review of financial resources available for partition, PBGC expects that fewer than 20 plans would be approved for partition over the next three years (about six plans per year), and that the total financial assistance PBGC will provide to those plans will be less than $60 million per year.

Administrative Procedure Act

The Administrative Procedure Act (5 U.S.C. 553(b)) provides that notice and comment requirements do not apply when an agency, for good cause, finds that they are impracticable, unnecessary, or contrary to the public interest. MPRA was signed into law on December 16, 2014, and with respect to the amendments to section 4233 of ERISA, is effective for plan years beginning after December 31, 2014.

MPRA did not impose a deadline to issue regulations under section 4233 of ERISA. However, as explained above, the partition rule under section 4233 is inextricably linked to the benefit suspension rule under section 305(e)(9) of ERISA, which requires the Treasury Secretary, in consultation with PBGC and the Secretary of Labor, to publish appropriate guidance not later than 180 days after the date of the enactment of MPRA. While neither section 4233 nor section 305(e)(9) expressly requires a plan sponsor to file concurrent applications for partition and benefit suspensions, the statutory provisions were designed to act in tandem.

Under section 305(e)(9)(D)(v) of ERISA, in any case in which a suspension of benefits with respect to a plan is made in combination with a partition of the plan under section 4233 of ERISA, the suspension of benefits may not take effect prior to the effective date of such partition. In other words, for a plan that requires both benefit suspensions and partition to remain solvent, the benefit suspension cannot take effect prior to the effective date of the partition.

Similarly, the actuarial certification under section 305(e)(9)(C)(i) requires a plan actuary to take into account the proposed suspensions of benefits (and if applicable, a proposed partition of the plan under section 4233 of ERISA), for purposes of certifying that a plan is projected to avoid insolvency within the meaning of section 4245 of ERISA.

Finally, section 305(e)(9)(D)(iv) of ERISA provides that any suspensions of benefits, in the aggregate (and, if applicable, considered in combination with a partition of the plan under section 4233 of ERISA), shall be reasonably estimated to achieve, but not materially exceed, the level that is necessary to avoid insolvency.

Most plans that will require a partition will also require a benefit suspension. The longer the delay, the more expensive the partition and the less likely that PBGC will be able to afford to provide assistance, resulting in greater harm to the public and the pension insurance system.

Accordingly, because regulatory guidance is required to implement section 4233, including the procedure for the plan sponsor to submit an application for partition and to provide notice to participants and beneficiaries, and because section 4233 is inextricably linked to the suspension of benefit rules under section 305(e)(9), which requires Treasury to publish appropriate guidance not later than 180 days after the date of the enactment of MPRA, PBGC has determined that prior notice and comment through the issuance of a notice of proposed rulemaking is impracticable and that the public interest is best served by making this interim final rule effective on June 19, 2015. However, PBGC is requesting comments on this interim final rule and may make changes to the interim final rule in response to those comments.

For the same reasons, pursuant to section 553(d)(3) of the Administrative Procedure Act (5 U.S.C. 553(d)(3)), PBGC is making this rule effective upon publication.

Regulatory Flexibility Act

Because PBGC is not publishing a general notice of proposed rulemaking under 5 U.S.C. 553, the regulatory flexibility analysis requirements of the Regulatory Flexibility Act do not apply.

Paperwork Reduction Act

The information requirements under this interim final rule—information to be reported to PBGC and information to be disclosed to participants—have been approved by the OMB under the Paperwork Reduction Act (OMB control number 1212-xxxx).17

17 The OMB control number will be activated upon publication of this interim final rule. OMB approval will expire six months after publication.

PBGC estimates that over the next three years about six plans per year will apply for partition and that the total annual burden of this information collection will be about 78 hours and $58,800.

Comments on the information requirements under this interim final rule should be mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at [email protected] or by fax to (202) 395-6974. Comments may be submitted through August 18, 2015. Comments may address (among other things)—

• Whether the collection of information is needed for the proper performance of PBGC's functions and will have practical utility;

• The accuracy of PBGC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Enhancement of the quality, utility, and clarity of the information to be collected; and

• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

List of Subjects in 29 CFR Part 4233

Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.

For the reasons given above, PBGC is amending 29 CFR chapter XL by adding part 4233 to read as follows:

PART 4233—PARTITIONS OF ELIGIBLE MULTIEMPLOYER PLANS Sec. 4233.1 Purpose and scope. 4233.2 Definitions. 4233.3 Application filing requirements. 4233.4 Information to be filed. 4233.5 Plan information. 4233.6 Partition information. 4233.7 Actuarial and financial information. 4233.8 Participant census data. 4233.9 Financial assistance information. 4233.10 Initial review. 4233.11 Notice of application for partition. 4233.12 PBGC action on application for partition. 4233.13 Coordinated application process for partition and benefit suspension. 4233.14 Partition order. 4233.15 Nature and operation of successor plan. 4233.16 Coordination of benefits under original plan and successor plan. 4233.17 Continuing jurisdiction. Appendix A to Part 4233—Model Notices Authority:

29 U.S.C. 1302(b)(3), 1413.

§ 4233.1 Purpose and scope.

The purpose of this part is to prescribe rules governing applications for partition under section 4233 of ERISA, and related notice requirements.

§ 4233.2 Definitions.

The following terms are defined in § 4001.2 of this chapter: ERISA, IRS, multiemployer plan, PBGC, plan, and plan sponsor. In addition, the following terms are defined for purposes of this part:

Advocate means the Participant and Plan Sponsor Advocate under section 4004 of ERISA.

Application for partition means a plan sponsor's application for partition under section 4233 of ERISA and this part.

Application for a suspension of benefits means a plan sponsor's application for a suspension of benefits to the Secretary of the Treasury (Treasury) under section 305(e)(9)(G) of ERISA.

Completed application means an application for partition for which PBGC has made a determination under § 4233.10 that the application contains all required information and satisfies the requirements described in §§ 4233.4 through 4233.9.

Effective date of partition means the date upon which a partition is effective and which is set forth in a partition order.

Financial assistance means financial assistance from PBGC under section 4261 of ERISA.

Insolvent has the same meaning as insolvent under section 4245(b) of ERISA.

Interested party means, with respect to a plan—

(1) Each participant in the plan;

(2) Each beneficiary of a deceased participant;

(3) Each alternate payee under an applicable qualified domestic relations order, as defined in section 206(d)(3) of ERISA;

(4) Each employer that has an obligation to contribute under the plan; and

(5) Each employee organization that currently has a collective bargaining agreement pursuant to which the plan is maintained.

Original plan means an eligible multiemployer plan under 4233(b) of ERISA that is partitioned upon the issuance of a partition order under section 4233(c) of ERISA.

Partition order means a formal PBGC order of partition under section 4233 of ERISA and § 4233.14.

Proposed partition means a proposed partition as structured and described by the plan sponsor in an application for partition.

Remain solvent has the same meaning as “avoid insolvency” in section 305(e)(9)(D)(iv) of ERISA and the regulations thereunder, with respect to the determinations made by PBGC under sections 4233(b)(3) and 4233(c) of ERISA.

Residual benefit means, with respect to a participant or beneficiary whose benefit was partially transferred to a successor plan pursuant to a partition order, the portion of the benefit payable under the original plan, the amount of which is equal to the difference between the benefit defined in section 4233(e)(1)(A) of ERISA, and the successor plan benefit. The residual benefit as of the effective date of the partition is not subject to a separate guarantee under section 4022A of ERISA.

Successor plan means the plan created by a partition order under section 4233(c) of ERISA.

Successor plan benefit means, with respect to a participant or beneficiary whose benefit was wholly or partially transferred from an original plan to a successor plan, the portion of the accrued nonforfeitable monthly benefit which would be guaranteed under section 4022A as of the effective date of the partition, calculated under the terms of the original plan without reflecting any changes relating to a benefit suspension under section 305(e)(9) of ERISA. The payment of a successor plan benefit is subject to the limitations and conditions contained in sections 4022A(a)-(f) of ERISA.

§ 4233.3 Application filing requirements.

(a) Method of filing. PBGC applies the rules in part 4000, subpart A of this chapter to determine permissible methods of filing with PBGC under this part, and the rules in part 4000, subpart D of this chapter to determine the computation of time.

(b) Who may file. An application for partition under section 4233 of ERISA must be submitted by the plan sponsor. The application must be signed and dated by an authorized trustee who is a current member of the board of trustees, and must include the following statement under penalties of perjury: “Under penalties of perjury, I declare that I have examined this application, including accompanying documents, and, to the best of my knowledge and belief, the application contains all the relevant facts relating to the application, and such facts are true, correct, and complete.” A stamped signature or faxed signature is not permitted.

(c) Where to file. See § 4000.4 of this chapter for information on where to file.

§ 4233.4 Information to be filed.

(a) General. An application for partition must include the information specified in § 4233.5 (plan information), § 4233.6 (partition information), § 4233.7 (actuarial and financial information), § 4233.8 (participant census data), and § 4233.9 (financial assistance information). If any of the information is not included, the application will not be considered complete.

(b) Additional information. (1) PBGC may require a plan sponsor to submit additional information necessary to make a determination on an application under this part and any information PBGC may need to calculate or verify the amount of financial assistance necessary for a partition. Any additional information must be submitted by the date specified in PBGC's request.

(2) PBGC may suspend the running of the 270-day review period (described in § 4233.10) pending the submission of any additional information requested by PBGC, or upon the issuance of a conditional determination under § 4233.12(c).

(c) Duty to amend and supplement application. During any time in which an application is pending final action by PBGC, the plan sponsor must promptly notify PBGC in writing of any material fact or representation contained in or relating to the application, or in any supporting documents, that is no longer accurate, or any material fact or representation omitted from the application or supporting documents, that the plan sponsor discovers.

§ 4233.5 Plan information.

An application for partition must include the following information with respect to the plan:

(a) The name of the plan, Employer Identification Number (EIN), and three-digit Plan Number (PN).

(b) The name, address, and telephone number of the plan sponsor and the plan sponsor's duly authorized representative, if any.

(c) The most recent trust agreement, including all amendments adopted since the last restatement.

(d) The most recent plan document, including all amendments adopted since the last restatement.

(e) The most recent summary plan description (SPD), and all summaries of material modification (SMM) issued since the effective date of the most recent SPD.

(f) The most recent rehabilitation plan (or funding improvement plan, if applicable), including all subsequent amendments and updates, and the percentage of total contributions received under each schedule of the rehabilitation plan for the most recent plan year available.

(g) A copy of the plan's most recent IRS determination letter.

(h) A copy of the plan's most recent Form 5500 (Annual Report Form) and all schedules and attachments (including the audited financial statement).

(i) A current listing of employers who have an obligation to contribute to the plan, and the approximate number of participants for whom each employer is currently making contributions.

(j) A schedule of withdrawal liability payments collected in each of the most recent five plan years.

§ 4233.6 Partition information.

An application for partition must include the following information with respect to the proposed partition:

(a) A detailed description of the proposed partition, including the proposed structure, proposed effective date, and any larger integrated transaction of which the proposed partition is a part (including, but not limited to, an application for suspension of benefits under section 305(e)(9)(G), or a merger under section 4231 of ERISA).

(b) A narrative description of the events that led to the plan sponsor's decision to submit an application for partition (and, if applicable, application for suspension of benefits).

(c) A narrative description of significant risks and assumptions relating to the proposed partition and the projections provided in support of the application.

(d) If applicable, a copy of the plan sponsor's application for suspension of benefits (including all attachments and exhibits). If the plan sponsor intends to apply for a suspension of benefits with Treasury, but has not yet submitted an application to Treasury, a draft of the application may be filed, which must be supplemented by filing a copy of the completed application within the timeframe established in § 4233.10(d).

(e) A detailed description of all measures the plan sponsor has taken (or is taking) to avoid insolvency, and any measures the plan sponsor considered taking but did not take, including the factor(s) the plan sponsor considered in making these determinations. Include all relevant documentation relating to the plan sponsor's determination that it has taken (or is taking) measures to avoid insolvency.

(f) A detailed description of the estimated benefit amounts the plan sponsor has determined are necessary to be partitioned for the plan to remain solvent, including the following information:

(1) The estimated number of participants and beneficiaries whose benefits (or any portion thereof) would be transferred, including the number of retirees receiving payments (if any), terminated vested participants (if any), and active participants (if any).

(2) Supporting data, calculations, assumptions, and a description of the methodology used to determine the estimated benefit amounts.

(3) If applicable, a description of any classifications or specific group(s) of participants and beneficiaries whose benefits (or any portion thereof) the plan sponsor proposes to transfer, and the plan sponsor's rationale or basis for selecting those classifications or groups.

(g) A copy of the draft notice of application for partition described in § 4233.11.

§ 4233.7 Actuarial and financial information.

(a) Required information. An application for partition must include the following plan actuarial and financial information:

(1) A copy of the plan's most recent actuarial report and copies of the actuarial reports for the two preceding plan years.

(2) A copy of the plan actuary's most recent certification of critical and declining status, including a detailed description of the assumptions used in the certification, the basis for the projection of future contributions, withdrawal liability payments, investment return assumptions, and any other assumption that may have a material effect on projections.

(3) A detailed statement of the basis for the conclusion that the plan will not remain solvent without a partition and, if applicable, suspension of benefits, including supporting data, calculations, assumptions, and a description of the methodology. Include as an exhibit annual cash flow projections for the plan without partition (or suspension, if applicable) through the projected date of insolvency. Annual cash flow projections must reflect the following information:

(i) Market value of assets as of the beginning of the year.

(ii) Contributions and withdrawal liability payments.

(iii) Benefit payments.

(iv) Administrative expenses.

(v) Market value of assets at year end.

(4) A long-term projection reflecting reduced benefit disbursements at the PBGC-guarantee level after insolvency, and a statement of the present value of all future financial assistance without a partition (using the interest and mortality assumptions applicable to the valuation of plans terminated by mass withdrawal as specified in § 4281.13 of this chapter and other reasonable actuarial assumptions, including retirement age, form of benefit payment, and administrative expenses, certified by an enrolled actuary).

(5) A detailed statement of the basis for the conclusion that the original plan will remain solvent if the application for partition, and, if applicable, the application for suspension of benefits, is granted, including supporting data, calculations, assumptions, and a description of the methodology, which must be consistent with section 305(e)(9)(D)(iv) and the regulations thereunder (including any adjustment to the cash flows in the initial year to incorporate recent actual fund activity required to be included under that section). Annual cash flow projections for the original plan with partition (and suspension, if applicable) must be included as an exhibit and must reflect the following information:

(i) Market value of assets as of the beginning of the year.

(ii) Contributions and withdrawal liability payments.

(iii) Benefit payments.

(iv) Administrative expenses.

(v) Market value of assets at year end.

(6) If applicable, a copy of the plan actuary's certification under section 305(e)(9)(C)(i) of ERISA.

(7) The plan's projected insolvency date with benefit suspension alone (if applicable), including supporting data.

(8) A long-term projection reflecting benefit disbursements from the successor plan, and a statement of the present value of all future financial assistance to be paid as a result of a partition (using the interest and mortality assumptions applicable to the valuation of plans terminated by mass withdrawal as specified in § 4281.13 of this chapter and other reasonable actuarial assumptions, including retirement age, form of benefit payment, and administrative expenses, certified by an enrolled actuary).

(b) Additional projections. PBGC may ask the plan for additional projections based on assumptions that it specifies.

(c) Actuarial calculations and assumptions. (1) General. All calculations required by this part must be performed by an enrolled actuary.

(2) Assumptions. All calculations required by this part must be consistent with calculations used for purposes of an application for suspension of benefits under section 305(e)(9) of ERISA, and based on methods and assumptions each of which is reasonable (taking into account the experience of the plan and reasonable expectations), and which, in combination, offer the actuary's best estimate of anticipated experience under the plan. Any change(s) in assumptions from the most recent actuarial valuation, and critical and declining status certification, must be disclosed and must be accompanied by a statement explaining the reason(s) for any change(s) in assumptions.

(3) Updates. PBGC may, in its discretion, require updated calculations and representations based on the actual effective date of a partition, revised actuarial assumptions, or for other good cause.

§ 4233.8 Participant census data.

An application for partition must include a copy of the census data used for the projections described in § 4233.7(a)(3) and (5), including:

(a) Participant type (retiree, beneficiary, disabled, terminated vested, active, alternate payee).

(b) Date of birth.

(c) Credited service for guarantee calculation (i.e., number of years of participation).

(d) Vested accrued monthly benefit before benefit suspension under section 305(e)(9) of ERISA.

(e) Vested accrued monthly benefit after benefit suspension under section 305(e)(9) of ERISA.

(f) Monthly benefit guaranteed by PBGC (determined under the terms of the original plan without respect to benefit suspensions).

(g) Benefit commencement date (for participants in pay status and others for which the reported benefit is not payable at Normal Retirement Date).

(h) For each participant in pay status—

(1) Form of payment, and

(2) Data relevant to the form of payment, including:

(i) For a joint and survivor benefit, the beneficiary's benefit amount (before and after suspension) and the beneficiary's date of birth;

(ii) For a Social Security level income benefit, the date of any change in the benefit amount, and the benefit amount after such change;

(iii) For a 5-year certain or 10-year certain benefit (or similar benefit), the relevant defined period.

(iv) For a form of payment not otherwise described in this section, the data necessary for the valuation of the form of payment, including the benefit amount before and after suspension.

(i) If an actuarial increase for postponed retirement applies or if the form of annuity is a Social Security level income option, the monthly vested benefit payable at normal retirement age in normal form of annuity.

§ 4233.9 Financial assistance information.

(a) Required information. An application for partition must include the estimated amount of annual financial assistance requested from PBGC for the first year the plan receives financial assistance if partition is approved.

(b) Additional information. PBGC may ask the plan for additional information in accordance with § 4233.4(b)(1).

§ 4233.10 Initial review.

(a) Determination on completed application. PBGC will make a determination on an application not later than 270 days after the date such application is deemed completed.

(b) Incomplete application. If the application is incomplete, PBGC will issue a written notice to the plan sponsor describing the information missing from the application.

(c) Complete application. Upon making a determination that an application is complete (i.e., the application includes all the information specified in §§ 4233.5 through 4233.9), PBGC will issue a written notice to the plan sponsor. The date of the written notice will mark the beginning of PBGC's 270-day review period under section 4233(a)(1) of ERISA, and the plan sponsor's 30-day notice period under 4233(a)(2) of ERISA.

(d) Special rule for coordinated applications for partition and benefit suspension. For a plan requiring both partition and benefit suspensions to remain solvent, PBGC's initial determination that a partition application is complete will be conditioned on the plan sponsor's filing of an application for benefit suspensions with Treasury within 30 days after receiving written notice from PBGC under paragraph (c) of this section. Such a plan is permitted, but not required, to issue a combined notice under § 4233.13(b).

(e) Informal consultation. Nothing in this subsection precludes a plan sponsor from contacting PBGC on an informal basis to discuss a potential partition application.

§ 4233.11 Notice of application for partition.

(a) When to file. Not later than 30 days after receipt of the written notice described in § 4233.10(c) that an application for partition is complete, the plan sponsor must provide notice of such application to each interested party and PBGC, in accordance with the rules in part 4000, subpart B of this chapter.

(b) Form of notice. The notice must be readable and written in a matter calculated to be understood by the average plan participant. The Model Notices in Appendix A to this part (when properly completed) are examples of notices meeting the requirements of this section.

(c) Information required. A notice of completed application for partition must include the following information:

(1) Identifying information. The name of the plan, the name, address, and phone number of the plan sponsor, the Employer Identification Number (EIN), and three-digit Plan Number (PN).

(2) Relevant partition application dates. A brief statement that the plan sponsor has submitted an application for partition to PBGC, the date of the completed application under § 4233.10(c), and a statement that PBGC must issue its decision not later than 270 days after the date on which PBGC notified the plan sponsor that the application was complete.

(3) Application for suspension of benefits. If applicable, a statement of whether the plan sponsor has submitted an application for suspension of benefits under section 305(e)(9)(G) of ERISA, and, if so, information on how to obtain a copy of the application and notice required by section 305(e)(9)(F) of ERISA.

(4) Description of statutory partition provisions. A brief description of the requirements under section 4233 of ERISA, and other related statutory requirements, including:

(i) The interrelationship between the partition rules under section 4233 of ERISA and suspensions of benefits under section 305(e)(9) of ERISA (if applicable).

(ii) The multiemployer guarantee under section 4022A of ERISA.

(iii) The eligibility requirements for a partition under section 4233(b) of ERISA, including the Advocate consultation requirement.

(5) Impact of partition on interested parties. A brief description of how the proposed partition may impact affected participants, beneficiaries, and alternate payees including:

(i) A statement describing the benefit payment obligations of the original plan and the successor plan.

(ii) A statement explaining that the Board of Trustees of the original plan will also administer the successor plan, but the successor plan will be funded solely by PBGC financial assistance payments.

(6) Partition application contents summary. A brief summary of the content of the plan sponsor's application for partition, including the following information:

(i) The plan's critical and declining status and projected insolvency date.

(ii) A statement that the plan sponsor has taken (or is taking) all reasonable measures to avoid insolvency, including the maximum benefit suspensions under section 305(e)(9), if applicable.

(iii) If known, a brief statement on the proposed total estimated amount and percentage of liabilities to be partitioned.

(iv) If known, a brief statement summarizing the proposed class or classes of participants whose benefits would be partially or wholly transferred if the application for partition is granted, including a summary of the factors considered by the plan sponsor in preparing its application.

(7) Contact information for plan sponsor. The name, address, and telephone number of the plan sponsor or other person designated by the plan sponsor to answer inquiries concerning the application for partition.

(8) Contact information for PBGC. Multiemployer Program Division, PBGC, 1200 K Street, NW., Washington, DC 20005-4026, [email protected]

(9) Contact information for Participant and Plan Sponsor Advocate. PBGC Participant and Plan Sponsor Advocate, 1200 K Street NW., Washington, DC 20005-4026, [email protected]

(d) Model notice. The appendix to this section contains two model notices—one for plan sponsors that submit coordinated applications for partition with PBGC and for benefit suspensions with Treasury, and one for plans sponsors who apply for partition only. The model notices are intended to assist plan sponsors in discharging their notice obligations under section 4233(a)(2) of ERISA and this part. Use of the model notices is not mandatory, but will be deemed to satisfy the requirements of section 4233(a)(2) of ERISA and this part.

(e) Foreign languages. The plan sponsor of a plan that covers the numbers or percentages in § 2520.104b-10(e) of this title of participants literate only in the same non-English language must, for any notice to interested parties—

(1) Include a prominent legend in that common non-English language advising them how to obtain assistance in understanding the notice; or

(2) Provide the notice in that common non-English language to those interested parties literate only in that language.

§ 4233.12 PBGC action on application for partition.

(a) Review period. Except as provided in paragraph (c) of this section, PBGC will approve or deny an application for partition submitted to it under this part within 270 days after the date PBGC issued a notice to the plan sponsor of the completed application under § 4233.10(c).

(b) Determination on application. PBGC may approve or deny an application at its discretion. PBGC will notify the plan sponsor in writing of PBGC's decision on an application. If PBGC denies the application, PBGC's written decision will state the reason(s) for the denial. If PBGC approves the application, PBGC will issue a partition order under section 4233(c) of ERISA and § 4233.14.

(c) Conditional determination on application. At the request of a plan sponsor, PBGC may, in its discretion, issue a preliminary approval of an application conditioned on Treasury issuing a final authorization to suspend under section 305(e)(9)(H)(vi) of ERISA and any other terms and conditions set forth in the conditional approval. The conditional approval will include a written statement of preliminary findings, conclusions, and conditions. The conditional approval is not a final agency action. The proposed partition will only become effective upon satisfaction of the required conditions, and the issuance of an order of partition under section 4233(c) of ERISA.

(d) Final agency action. Except as provided in paragraph (c) of this section, PBGC's decision on an application for partition under this section is a final agency action for purposes of judicial review under the Administrative Procedure Act (5 U.S.C. 701 et seq.).

§ 4233.13 Coordinated application process for partition and benefit suspension.

(a) Interagency coordination. For a plan sponsor that has requested a conditional approval of a partition pursuant to § 4233.12(c), PBGC may render either a conditional approval or a final denial of the application on an expedited basis, provided that the plan sponsor has submitted a completed application to PBGC as prescribed by § 4233.10. PBGC will consult with Treasury and the Department of Labor in the course of reviewing an application for partition.

(1) If PBGC denies the application for partition, it will notify the plan sponsor in writing of PBGC's decision in accordance with § 4233.12(b), and will notify Treasury to allow it to take appropriate action on the benefit suspension application.

(2) If PBGC grants a conditional approval of partition, it will notify the plan sponsor in writing of PBGC's decision in accordance with § 4233.12(c), and will provide Treasury with a copy of PBGC's decision along with PBGC's record of the decision.

(3) If Treasury does not issue the final authorization to suspend, PBGC's preliminary and conditional approval under § 4233.12(c) will be null and void.

(4) If Treasury issues a final authorization to suspend, PBGC will issue a final partition order under § 4233.14 and section 4233(c) of ERISA.

(b) Combined notice. A plan sponsor submitting an application for benefit suspensions under section 305(e)(9) of ERISA with Treasury, and a partition under section 4233 of ERISA with PBGC, may combine the PBGC model notice for coordinated applications provided at Appendix A with the Treasury model notice in Appendix A of Rev. Proc. 2015-34 in satisfaction of the notice requirement of this part.

§ 4233.14 Partition order.

(a) General Provisions. The partition order will describe the liabilities to be transferred to the successor plan under section 4233(c) of ERISA, and the manner in which financial assistance will be provided by PBGC under section 4261 of ERISA. The partition order will also set forth PBGC's findings and conclusions on an application for partition, the effective date of partition, the obligations and responsibilities of the plan sponsor to the original plan and successor plan, and such other information as PBGC may deem appropriate.

(b) Terms and conditions. The partition order will set forth the terms and conditions of the partition and will incorporate by reference the applicable requirements under sections 4233(d) and 4233(e) of ERISA.

(1) The plan sponsors of the original plan and the successor plan must amend the original plan and successor plan, respectively, to reflect the benefits payable to participants and beneficiaries as a result of the partition order.

(2) The plan sponsors of the original plan and successor plan must maintain a written record of the respective plans' compliance with the terms of the partition order, section 4233 of ERISA, and this part.

§ 4233.15 Nature and operation of successor plan.

(a) Nature of plan. The plan created by the partition order is a successor plan to which section 4022A applies, and an insolvent plan under section 4245 of ERISA.

(b) Treatment of plan. The successor plan will be treated as a terminated multiemployer plan to which section 4041A(d) of ERISA applies because there are no contributing employers with an obligation to contribute within the meaning of section 4212 of ERISA as of the effective date of the partition. The treatment of the successor plan as a terminated plan under this paragraph will not be taken into account for purposes of determining the withdrawal liability of contributing employers to the original plan under sections 4201 and 4233(d)(3) of ERISA.

(c) Administration of plan. The plan sponsor of the original plan and the administrator of such plan will be the plan sponsor and the administrator, respectively, of the successor plan. PBGC will retain the right to remove and replace the plan sponsor of the successor plan pursuant to section 4042(b)(2) of ERISA.

§ 4233.16 Coordination of benefits under original plan and successor plan.

(a) Successor plan benefits. Subject to the limitations contained in section 4022A of ERISA, the only benefit amounts payable under a successor plan are successor plan benefits as defined in § 4233.2.

(b) Guarantee of successor plan benefit. When a participant's or beneficiary's benefit is partially or wholly transferred to a successor plan, the PBGC guarantee applicable to such benefit becomes payable under the successor plan. The benefit remaining in the original plan as of the effective date of the partition, if any, is not subject to a new guarantee, and any increase in the PBGC guarantee amount payable under the original plan will arise solely, if at all, due to an increase in the accrued benefit under a plan amendment following the effective date of the partition, or an additional accrual attributable to service after the effective date of the partition.

(c) PBGC financial assistance. Subject to the conditions contained in section 4261 of ERISA, PBGC will provide financial assistance to the successor plan in an amount sufficient to enable the successor plan to pay only the PBGC-guaranteed amount transferred to the successor plan pursuant to the partition order, and reasonable and necessary administrative expenses if approved by PBGC. The receipt of benefits payable under a successor plan receiving financial assistance from PBGC will be treated as the receipt of guaranteed benefits under section 4022A.

(d) Payment of monthly benefits. The plan sponsors of an original plan and a successor plan may, but are not required to, pay monthly benefits payable under the original plan and successor plan, respectively, in a single monthly payment pursuant to a written cost-sharing or expense allocation agreement between the plans.

§ 4233.17 Continuing jurisdiction.

(a) PBGC will continue to have jurisdiction over the original plan and the successor plan to carry out the purposes, terms, and conditions of the partition order, section 4233 of ERISA, and this part.

(b) PBGC may, upon providing notice to the plan sponsor, make changes to the partition order in response to changed circumstances consistent with section 4233 of ERISA and this part.

Appendix A to Part 4233—Model Notices NOTICE OF APPLICATION FOR PARTITION FOR [INSERT PLAN NAME] [For plans filing an application for partition only] [Insert Date]

This notice is to inform you that, on [insert Date], [insert Plan Sponsor's Name] (“Board of Trustees”) filed a complete application with the Pension Benefit Guaranty Corporation (“PBGC”) requesting approval for a partition of the [insert Pension Fund name, Employer Identification Number, and three-digit Plan Number] (the “Plan”).

What is partition?

A multiemployer plan that is in critical and declining status may apply to PBGC for an order that separates (i.e., partitions) and transfers the PBGC-guaranteed portion of certain participants' and beneficiaries' benefits to a newly-created successor plan. The total amount transferred from the original plan to the successor plan is the minimum amount needed to keep the original plan solvent. While the Board of Trustees will administer the successor plan, PBGC will provide financial assistance to the successor plan to pay the transferred benefits.

PBGC guarantees benefits up to a legal limit. However, if the PBGC-guaranteed amount payable by the successor plan is less than the benefit payable under the original plan, Federal law requires the original plan to pay the difference. Therefore, partition will not change the total amount payable to any participant or beneficiary.

What are the rules for partition?

Federal law permits, but does not require, PBGC to approve an application for partition. PBGC generally will make a decision on the application for partition within 270 days. A plan is eligible for partition if certain requirements are met, including:

1. The pension plan is in critical and declining status. A plan is in critical and declining status if it is in critical status (which generally means the plan's funded percentage is less than 65%) and is projected to run out of money within 15 years (or 20 years if there are twice as many inactive as active participants, or if the plan's funded percentage is less than 80%).

2. PBGC determines, after consulting with the PBGC Participant and Plan Sponsor Advocate, that the Board of Trustees has taken (or is taking) all reasonable measures to avoid insolvency. Reasonable measures may include contribution increases or reductions in the rate of benefit accruals.

3. PBGC determines that: (1) Providing financial assistance in a partition will be significantly less than providing financial assistance in the event the plan becomes insolvent; and (2) partition is necessary for the plan to remain solvent.

4. PBGC certifies to Congress that its ability to meet existing financial assistance obligations to other multiemployer plans (including plans that are insolvent or projected to become insolvent within 10 years) will not be impaired by the partition.

5. The cost of the partition is paid exclusively from PBGC's multiemployer insurance fund.

Why is partition needed?

The Plan is in critical and declining status, is [insert funded percentage] funded, and is projected to become insolvent by [insert expected insolvency date]. The Board of Trustees asserts that it has taken reasonable measures to avoid insolvency, but has determined that these measures are insufficient and that the proposed partition is necessary for the Plan to avoid insolvency.

[Insert brief statement of the amount of liabilities the Board of Trustees proposes to partition and indicate whether it is the minimum amount needed for the Plan to remain solvent.] [If applicable, insert brief statement summarizing the proposed classes of participants and beneficiaries whose benefits will be partially or wholly transferred if the application is granted, and a summary of the factors considered.] If instead the Plan is allowed to become insolvent, the benefits of all participants and beneficiaries whose benefits exceed the PBGC-guaranteed amount would be reduced to the PBGC-guaranteed amount.

What is PBGC's multiemployer plan guarantee?

Federal law sets the maximum that PBGC may guarantee. For multiemployer plan benefits, PBGC guarantees a monthly benefit payment equal to 100 percent of the first $11 of the Plan's monthly benefit accrual rate, plus 75 percent of the next $33 of the accrual rate, times each year of credited service. The PBGC's maximum guarantee, therefore, is $35.75 per month times a participant's years of credited service.

PBGC guarantees vested pension benefits payable at normal retirement age, early retirement benefits, and certain survivor benefits, if the participant met the eligibility requirements for a benefit before plan termination or insolvency. A benefit or benefit increase that has been in effect for less than 60 months is not eligible for PBGC's guarantee. PBGC also does not guarantee benefits above the normal retirement benefit, disability benefits not in pay status, or non-pension benefits, such as health insurance, life insurance, death benefits, vacation pay, or severance pay.

How will I know when PBGC has made a decision on the application for partition?

If PBGC approves the Board of Trustees' application for partition, PBGC will issue a notice to affected participants and beneficiaries whose benefits will be transferred to the successor plan no later than 14 days after it issues the order of partition. You may also visit www.pbgc.gov/MPRA for a list of applications for partition received by PBGC and the status of those applications.

Your Rights To Receive Information About Your Plan and its Benefits

Your plan's Summary Plan Description (“SPD”) will include information on the procedures for claiming benefits, which will apply to both the original and successor plans until the Plan provides you a new SPD. You also have the legal right to request documents from the original plan to help you understand the partition and your rights such as:

• The plan document, trust agreement, and other documents governing the Plan (e.g., collective bargaining agreements);

• The latest SPD and summaries of material modification;

• The Plan's Form 5500 annual reports, including audited financial statements, filed with the U.S. Department of Labor during the last six years;

• The Plan's annual funding notices for the last six years;

• Actuarial reports (including reports submitted in support of the application for partition) furnished to the Plan within the last six years;

• The Plan's current rehabilitation plan, including contribution schedules; and

• Any quarterly, semi-annual or annual financial reports prepared for the Plan by an investment manager, fiduciary or other advisor and furnished to the Plan within the last six years.

If your benefits are transferred to the successor plan, you will be furnished a successor plan SPD within 120 days of the partition; and the plan document, trust agreement, and other documents governing the successor plan will be available for review following the partition.

The plan administrator must respond to your request for these documents within 30 days, and may charge you the cost per page for the least expensive means of reproducing documents, but cannot charge more than 25 cents per page. The Plan's Form 5500 annual reports are also available free of charge at http://www.dol.gov/ebsa/5500main.html. Some of the documents also may be available for examination, without charge, at the plan administrator's office, your worksite, or union hall.

Plan Contact Information

For more information about this Notice, you may contact:

[Insert Name of Plan Administrator, address, email address, and phone number] PBGC Contact Information Multiemployer Program Division, PBGC, 1200 K Street NW., Washington, DC 20005-4026 Email: [email protected] Phone: (202) 326-4000 x6535 PBGC Participant and Plan Sponsor Advocate Contact Information Constance Donovan, PBGC, 1200 K Street NW., Washington, DC 20005-4026 Email: [email protected]. Phone: (202) 326-4488 NOTICE OF APPLICATION FOR PARTITION FOR [INSERT PLAN NAME] [For plans filing coordinated applications for partition and suspension of benefits] [Insert Date]

This notice is to inform you that, on [insert Date], [insert Plan Sponsor's Name] (“Board of Trustees”) filed a complete application with the Pension Benefit Guaranty Corporation (“PBGC”) requesting approval for a partition of the [insert Pension Fund name, Employer Identification Number, and three-digit Plan Number] (the “Plan”). [Insert statement that the plan sponsor has submitted an application for suspension of benefits under section 305(e)(9)(G) of ERISA, and identify how to obtain a copy of the application and notice required by section 305(e)(9)(F) of ERISA.]

What is partition?

A multiemployer plan that is in critical and declining status may apply to PBGC for an order that separates (i.e., partitions) and transfers the PBGC-guaranteed portion of certain participants' and beneficiaries' benefits to a newly-created successor plan. The total amount transferred from the original plan to the successor plan is the minimum amount needed to keep the original plan solvent. While the Board of Trustees will administer the successor plan, PBGC will provide financial assistance to the successor plan to pay the transferred benefits.

PBGC guarantees benefits up to a legal limit. However, if the PBGC-guaranteed amount payable by the successor plan is less than the benefit payable under the original plan after taking into account benefit reductions or any plan amendments after the effective date of the partition, Federal law requires the original plan to pay the difference. Therefore, partition will not further change the total amount payable to any participant or beneficiary.

What are the rules for partition?

Federal law permits, but does not require, PBGC to approve an application for partition. PBGC generally will make a decision on the application for partition within 270 days. A plan is eligible for partition if certain requirements are met, including:

1. The pension plan is in critical and declining status. A plan is in critical and declining status if it is in critical status (which generally means the plan's funded percentage is less than 65%) and is projected to run out of money within 15 years (or 20 years if there are at least twice as many inactive as active participants, or if the plan's funded percentage is less than 80%).

2. PBGC determines, after consulting with the PBGC Participant and Plan Sponsor Advocate, that the Board of Trustees has taken (or is taking) all reasonable measures to avoid insolvency, including reducing benefits to the maximum allowed under the law.

3. PBGC determines that: (1) Providing financial assistance in a partition will be significantly less than providing financial assistance in the event the plan becomes insolvent; and (2) partition is necessary for the plan to remain solvent.

4. PBGC certifies to Congress that its ability to meet existing financial assistance obligations to other multiemployer plans (including plans that are insolvent or projected to become insolvent within 10 years) will not be impaired by the partition.

5. The cost of the partition is paid exclusively from PBGC's multiemployer insurance fund.

Why are partition and benefit reductions needed?

The Plan is in critical and declining status, is [insert funded percentage] funded, and is projected to become insolvent by [insert expected insolvency date]. The Board of Trustees has taken reasonable measures to avoid insolvency, but has determined that these measures are insufficient and that the proposed partition and reduction of benefits combined are necessary for the Plan to avoid insolvency.

[Insert brief statement of the amount of liabilities the Board of Trustees proposes to partition and indicate whether it is the minimum amount needed for the Plan to remain solvent.] [If applicable, insert brief statement summarizing the proposed classes of participants and beneficiaries whose benefits will be partially or wholly transferred if the application is granted, and a summary of the factors considered.] If instead the Plan is allowed to become insolvent, the benefits of all participants and beneficiaries whose benefits exceed the PBGC-guaranteed amount would be reduced to the PBGC-guaranteed amount.

What is PBGC's multiemployer plan guarantee?

Federal law sets the maximum that PBGC may guarantee. For multiemployer plan benefits, PBGC guarantees a monthly benefit payment equal to 100 percent of the first $11 of the Plan's monthly benefit accrual rate, plus 75 percent of the next $33 of the accrual rate, times each year of credited service. PBGC's maximum guarantee, therefore, is $35.75 per month times a participant's years of credited service.

PBGC guarantees vested pension benefits payable at normal retirement age, early retirement benefits, and certain survivor benefits, if the participant met the eligibility requirements for a benefit before plan termination or insolvency. A benefit or benefit increase that has been in effect for less than 60 months is not eligible for PBGC's guarantee. PBGC also does not guarantee benefits above the normal retirement benefit, disability benefits not in pay status, or non-pension benefits, such as health insurance, life insurance, death benefits, vacation pay, or severance pay.

How will I know when PBGC has made a decision on the application for partition?

If PBGC approves the Board of Trustees' application for partition, PBGC will issue a notice to affected participants and beneficiaries whose benefits will be transferred to the successor plan no later than 14 days after it issues the order of partition. You may also visit www.pbgc.gov/MPRA for a list of applications for partition received by PBGC and the status of those applications.

How do I obtain information on the application for approval to reduce benefits?

The application for approval of the proposed reduction of benefits will be publicly available within 30 days after the Treasury Department receives the application. See www.treasury.gov for a copy of the application, instructions on how to send comments on the application, and how to contact the Treasury Department for further information and assistance.

Your Rights To Receive Information About Your Plan and its Benefits

Your Plan's Summary Plan Description (“SPD”) will include information on the procedures for claiming benefits, which will apply to both the original and successor plans until the Plan provides you a new SPD. You also have the legal right to request documents from the original plan to help you understand the partition and your rights such as:

• The plan document, trust agreement, and other documents governing the Plan (e.g., collective bargaining agreements);

• The latest SPD and summaries of material modification;

• The Plan's Form 5500 annual reports, including audited financial statements, filed with the U.S. Department of Labor during the last six years;

• The Plan's annual funding notices for the last six years;

• Actuarial reports (including reports submitted in support of the application for partition) furnished to the Plan within the last six years;

• The Plan's current rehabilitation plan, including contribution schedules; and

• Any quarterly, semi-annual or annual financial reports prepared for the Plan by an investment manager, fiduciary or other advisor and furnished to the Plan within the last six years.

If your benefits are transferred to the successor plan, you will be furnished a successor plan SPD within 120 days of the partition; and the plan document, trust agreement, and other documents governing the successor plan will be available for review following the partition.

The plan administrator must respond to your request for these documents within 30 days, and may charge you the cost per page for the least expensive means of reproducing documents, but cannot charge more than 25 cents per page. The Plan's Form 5500 annual reports are also available free of charge at http://www.dol.gov/ebsa/5500main.html. Some of the documents also may be available for examination, without charge, at the plan administrator's office, your worksite, or union hall.

Plan Contact Information

For more information about this Notice, you may contact:

[Insert Name of Plan Administrator, address, email address, and phone number] PBGC Contact Information Multiemployer Program Division, PBGC, 1200 K Street NW., Washington, DC 20005-4026 Email: [email protected] Phone: (202) 326-4000 x6535 PBGC Participant and Plan Sponsor Advocate Contact Information Constance Donovan, PBGC, 1200 K Street NW., Washington, DC 20005-4026 Email: [email protected] Phone: (202) 326-4488
Issued in Washington, DC, this 10th day of June, 2015. Alice C. Maroni, Acting Director, Pension Benefit Guaranty Corporation.
[FR Doc. 2015-14930 Filed 6-17-15; 11:15 am] BILLING CODE 7709-02-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2015-0329] RIN 1625-AA08 Special Local Regulations for Marine Events, Atlantic Ocean; Atlantic City, New Jersey AGENCY:

Coast Guard, DHS.

ACTION:

Temporary Final Rule.

SUMMARY:

The Coast Guard is temporarily changing the enforcement date of the special local regulation for the recurring OPA Atlantic City Grand Prix boat race, held in the waters of the North Atlantic Ocean, adjacent to Atlantic City, New Jersey. The change of enforcement date for the special local regulation is necessary to provide for the safety of life on navigable waters during the event. This action will restrict vessel traffic in the waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey, during the event, from 10:00 a.m. to 6:00 p.m. on June 20, 2015 and June 21, 2015.

DATES:

This rule is effective June 20-21, 2015.

ADDRESSES:

Documents mentioned in this preamble are part of docket [USCG-2015-0329]. 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.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Lieutenant Brennan Dougherty, U.S. Coast Guard, Sector Delaware Bay, Chief Waterways Management Division, Coast Guard; telephone (215) 271-4851, 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 COTP Captain of the Port A. Regulatory History and Information

The regulation for this recurring marine event may be found at 33 CFR 100.501, Table to § 100.501, section (a), line “4”. This year, the date is different than published in the Table, so this temporary final rule has been issued.

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 because information about the new date was not received by the Coast Guard with sufficient time to publish a Notice of Proposed Rulemaking.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register for the same reason: There was not enough time to publish the final rule more than thirty days before the event date.

B. Basis and Purpose

The legal basis and authorities for this rulemaking establishing a special local regulation are found in 33 U.S.C. 1233, which authorize the Coast Guard to establish and define special local regulations.

The purpose of this special local regulation is to provide for the safety of participants, spectator craft, and other vessels transiting the event area while the boat race is occurring.

C. Discussion of Rule

The Coast Guard has previously published a list of annual marine events within the Fifth Coast Guard District and special local regulation locations at 33 CFR 100.501. The Table to § 100.501 identifies special local regulations by COTP zone, with the COTP Delaware Bay zone listed in section “(a.)” of the Table. The Table to § 100.501, at section (a.) event Number “4”, describes the enforcement date and regulated location for this marine event.

The date listed in the Table has the marine event on the fourth Sunday of June. However, this temporary rule changes the marine event date to June 20, 2015 and June 21, 2015, to reflect the actual date of the event.

The Coast Guard will temporarily suspend the regulation listed in Table to § 100.501, section (a) event Number “4”, and insert this temporary regulation at Table to § 100.501, at section (a.) as event Number “15”, in order to reflect that the special local regulation will be effective and enforced from 10:00 a.m. until 6:00 p.m. on June 20, 2015 and June 21, 2015. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.

The regulated area of this special local regulation includes all the waters of the North Atlantic Ocean, adjacent to Atlantic City, New Jersey, bounded by a line drawn between the following points: From a point along the shoreline at latitude 39°21′50″ N, longitude 074°24′37″ W, thence southeasterly to latitude 39°20′40″ N, longitude 074°23′50″ W, thence southwesterly to latitude 39°19′33″ N, longitude 074°26′52″ W, thence northwesterly to a point along the shoreline at latitude 39°20′43″ N, longitude 074°27′40″ W, thence northeasterly along the shoreline to point of origin at latitude 39°21′50″ N, longitude 074°24′37″ W.

A fleet of spectator vessels is anticipated to gather nearby to view the marine event. Due to the need for vessel control during the marine event vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Under provisions of 33 CFR 100.501, during the enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

The Coast Guard may assign an event patrol, as described in 33 CFR 100.40, to each regulated event listed in the table. Additionally, a Patrol Commander may be assigned to oversee the patrol. The event patrol and Patrol Commander may be contacted on VHF-FM Channel 16. During the event, the Coast Guard Patrol Commander may forbid and control the movement of all vessels in the regulated area(s). When hailed or signaled by an official patrol vessel, a vessel in these areas shall immediately comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard Patrol Commander may terminate the event, or the operation of any vessel participating in the event, at any time it is deemed necessary for the protection of life or property. Coast Guard Sector Delaware Bay will notify the public by broadcast notice to mariners at least one hour prior to the times of enforcement.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or 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. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the Special local regulation to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the special local regulation with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced for only the duration of the boat race.

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 term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to anchor or transit in the waters of the North Atlantic Ocean, adjacent to Atlantic City, New Jersey, on June 20, 2015 and June 21, 2015 from 10:00 a.m. to 6:00 p.m., unless cancelled earlier by the Captain of the Port.

This special local regulation will not have a significant economic impact on a substantial number of small entities for the following reason: vessel traffic will be allowed to transit through the area with permission of the Coast Guard Captain of the Port, Delaware Bay, or his designated representative and the special local regulation is limited in size and duration. Sector Delaware Bay will issue maritime advisories widely available to all waterway users.

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

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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. 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 would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule would 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 would not create an environmental risk to health or risk to safety that might 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 would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This rule 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 implementation of regulations within 33 CFR part 100, applicable to special local regulations on the navigable waterways. This zone will temporarily restrict vessel traffic from transiting the waters of the Atlantic Ocean adjacent to Atlantic City, NJ, in order to protect the safety of life and property on the waters for the duration of the air show. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 100

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 100 as follows:

PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

33 U.S.C. 1233.

2. In the Table to § 100.501: a. Suspend line No. (a.) 4; and b. Add line No. (a.) 15 to read as follows:
§ 100.501 Special Local Regulations; Marine Events in the Fifth Coast Guard District. Number Date Event Sponsor Location (a.) Coast Guard Sector Delaware Bay—COTP Zone *         *         *         *         *         *         * 15 June-20, 21th OPA Atlantic City Grand Prix Offshore Performance Assn. & New Jersey Offshore Racing Assn The waters of the North Atlantic Ocean, adjacent to Atlantic City, New Jersey, bounded by a line drawn between the following points: From a point along the shoreline at latitude 39°21′50″ N, longitude 074°24′37″ W, thence southeasterly to latitude 39°20′40″ N, longitude 074°23′50″ W, thence southwesterly to latitude 39°19′33″ N, longitude 074°26′52″ W, thence northwesterly to a point along the shoreline at latitude 39°20′43″ N, longitude 074°27′40″ W, thence northeasterly along the shoreline to point of origin at latitude 39°21′50″ N,. longitude.074°24′37″ W. *         *         *         *         *         *         *
Dated: June 2, 2015. B.A. Cooper, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2015-15184 Filed 6-18-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2015-0340] RIN 1625-AA08 Special Local Regulations; Grand National Drag Boat Races, Atlantic Intracoastal Waterway; Bucksport, SC AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a special local regulation on the Atlantic Intracoastal Waterway in Bucksport, South Carolina during the Grand National Drag Boat Races, a series of high-speed boat races. The event will take place on Saturday, June 20, 2015 and Sunday, June 21, 2015. Approximately 30 high-speed race boats are anticipated to participate in the races. This special local regulation is necessary to provide for the safety of life and property on navigable waters of the United States during the event. This special local regulation will temporarily restrict vessel traffic in a portion of the Atlantic Intracoastal Waterway. Persons and vessels that are not participating in the races will be prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.

DATES:

This rule is effective on June 20 and June 21, 2015. This rule will be enforced daily from 9 a.m. until 7 p.m.

ADDRESSES:

Documents mentioned in this preamble are part of docket USCG-2014-0340. 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.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Chief Warrant Officer Christopher Ruleman, Sector Charleston Waterways Management, U.S. Coast Guard; telephone (843) 740-3184, email [email protected]. If you have questions on viewing the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: Table of Acronyms DHS Department of Homeland Security FR Federal Register A. Regulatory History and Information

The Coast Guard is issuing this temporary 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 with respect to this rule because the Coast Guard did not receive necessary information about the event until April 23, 2015. As a result, the Coast Guard did not have sufficient time to publish a notice of proposed rulemaking and to receive public comments prior to the event. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the race participants, spectators and the general public.

B. Basis and Purpose

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to ensure safety of life and property on navigable waters of the United States during the Grand National Drag Boat Races.

C. Discussion of Rule

On Saturday, June 20, 2015, and Sunday, June 21, 2015, the Bucksport Marina will host Grand National Drag Boat Races, a series of high-speed boat races. The event will be held on a portion of the Atlantic Intracoastal Waterway in Bucksport, South Carolina. Approximately 30 high-speed race boats are anticipated to participate in the races.

The special local regulation encompasses certain waters of the Atlantic Intracoastal Waterway in Bucksport, South Carolina. The special local regulation will be enforced daily from 9 a.m. until 7 p.m. on June 20, 2015 and June 21, 2015. The special local regulation consists of a regulated area around vessels participating in the event. Persons and vessels that are not participating in the event are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless specifically authorized by the Captain of the Port Charleston or a designated representative. Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16 to seek authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such permission must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

D. 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 economic impact of this rule is not anticipated to be significant for the following reasons: (1) Although persons and vessels will not be able to enter, transit through, anchor in, or remain within the race area without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the effective period; (2) persons and vessels may still enter, transit through, anchor in, or remain within the race area if authorized by the Captain of the Port Charleston or a designated representative; and (3) advance notification will be made to the local maritime community via broadcast notice to mariners.

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 term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion that portion of the Atlantic Intracoastal Waterway encompassed within the regulated area from 9:00 a.m. until 7:00 p.m. on June 20, 2015 and June 21, 2015. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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 section 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 calls for no 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 have determined that it 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 affect 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

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 a special local regulation issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 34(h) 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 100

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

33 U.S.C. 1233.

2. Add a temporary § 100.T07-0340 to read as follows:
§ 100.T07-0340 Special Local Regulations; Grand National Drag Boat Races, Atlantic Intracoastal Waterway, Bucksport, SC.

(a) Regulated area. The following regulated area is established as a special local regulation: All waters of the Atlantic Intracoastal Waterway encompassed within the following points; starting at point 1 in position 33° 39′ 11.46″ N, 079° 05′ 36.78″ W; thence west to point 2 in position 33° 39′ 12.18″ N, 079° 05′ 47.76″ W; thence south to point 3 in position 33° 38′ 39.48″ N 079° 05′37.44″ W; thence east to point 4 in position 33° 38′ 42.3″ N 079° 05′ 30.6″ W; thence north back to origin. All coordinates are North American Datum 1983.

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

(c) Regulations. (1) All persons and vessels, except those persons and vessels participating in the event, are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.

(2) Nonparticipant persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16 to seek authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such permission must comply with the instructions of the Captain of the Port Charleston or a designated representative.(3) The Coast Guard will provide notice of the regulated area by Broadcast Notice to Mariners, Local Notice to Mariners, and on-scene designated representatives.

(d) Enforcement date. This rule will be enforced daily from 9 a.m. until 7 p.m. on June 20 and June 21, 2015.

Dated: May 29, 2015. G.L. Tomasulo, Captain, U.S. Coast Guard, Captain of the Port Charleston.
[FR Doc. 2015-15186 Filed 6-18-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0218] RIN 1625-AA09 Drawbridge Operation Regulation; Niantic River, Niantic, CT AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is changing the operating schedule that governs the Amtrak Bridge, mile 0.0, at Niantic, Connecticut. The bridge owner, National Railroad Passenger Company (Amtrak), submitted a request to remove the special drawbridge operation regulation because the bridge now opens on signal at all times. It is expected that this change to the regulations will create efficiency in drawbridge operations while continuing to meet the reasonable needs of navigation.

DATES:

This rule is effective June 19, 2015.

ADDRESSES:

Documents mentioned in this preamble are part of docket USCG-2015-0218. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type in the docket number in the “Search.” box and click “SEARCH.” Click 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.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Ms. Judy Leung-Yee, Project Officer, First Coast Guard District Bridge Branch, 212-514-4330, [email protected] If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: A. Regulatory History and Information

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), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Amtrak Bridge, that once required draw operations in 33 CFR 117.215(a), now opens on signal at all times; therefore, the regulation is no longer applicable and shall be removed from publication. It is unnecessary to publish an NPRM because this regulatory action does not purport to place any restrictions on mariners but rather removes a restriction that has no further use or value.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register. The bridge has been opening on signal at all times for many years and this rule merely requires an administrative change to the Federal Register, in order to omit a regulatory requirement that is no longer applicable or necessary. The removal of the regulation will not affect mariners currently operating on this waterway. Therefore, a delayed effective date is unnecessary.

A. Basis and Purpose

The Amtrak Bridge at mile 0.0, across the Niantic River, at Niantic, Connecticut, has a vertical clearance of 16 feet at mean high water and 19 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.215(a).

The waterway users are commercial and seasonal recreational vessels of various sizes.

The owner of the bridge, Amtrak, submitted a request to the Coast Guard to change the drawbridge operating regulations that presently allows the bridge to open on signal; except that, from April 1 through October 31, from 8 p.m. to 4 a.m. and from November 1 through March 31 from 6 p.m. to 6 a.m., the draw shall open on signal if at least one hour notice is given.

When a train is scheduled cross the bridge without stopping has entered the drawbridge block, a delay in opening the draw may occur until the train has cleared the block.

Under this final rule the Amtrak Bridge will open on signal at all times; however, the paragraph that refers to any delay in opening the draw should a train be within the drawbridge block shall remain in effect.

B. Discussion of Final Rule

The Amtrak Bridge has been opening on signal at all times for many years despite the requirement in the drawbridge operation regulation listed at 33 CFR 117.215(a) to provide a one hour advance notice at certain times of year.

The owner of the bridge requested the regulation for the Amtrak Bridge be changed to reflect the present operation of the bridge, to open on signal at all times.

C. 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 or 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, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We believe that this rule is not a significant regulatory action because the changes to the regulation will remove the advanced notice burden for mariners at all times.

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 received no comments from the Small Business Administration on this rule. 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 have no effect on small entities for the following reason: The Amtrak Bridge will open on signal at all times.

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 calls for no 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 States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it 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

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 would not create an environmental risk to health or risk to safety that might 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 Concerns 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 guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

List of Subjects in 33 CFR Part 117

Bridges.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority:

33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

2. In § 33 CFR 117.215, revise paragraph (a) to read as follows:
§ 117.215 Niantic River.

(a) The draw of the Amtrak Bridge, mile 0.0, at Niantic, shall open on signal at all times. When a train scheduled to cross the bridge without stopping has entered the drawbridge block, a delay in opening the draw may occur until the train has cleared the block. The delay should not exceed 10 minutes.

Dated: June 9, 2015. L.L. Fagan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2015-15190 Filed 6-18-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0521] Drawbridge Operation Regulation; Isle of Wight (Sinepuxent) Bay, Ocean City, MD 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 US Route 50 Bridge across the Isle of Wight (Sinepuxent) Bay, mile 0.5, at Ocean City, MD. The deviation is necessary to facilitate the Annual July 4th Fireworks show. This deviation allows the bridge to remain closed to navigation to accommodate heavy volumes of vehicular traffic following the fireworks show.

DATES:

This deviation is effective from 9:30 p.m. to 11:30 p.m. on July 4, 2015.

ADDRESSES:

The docket for this deviation, [USCG-2015-0521] 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 Traci Whitfield, Bridge Management Assistant, Fifth Coast Guard District, telephone (757) 398-6629, email Tr[email protected] If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

The Ocean City Police Department on behalf of the Maryland State Highway Administration, has requested a temporary deviation from the current operating regulation of the US Route 50 Bridge across Isle of Wight (Sinepuxent) Bay, mile 0.5, at Ocean City, MD. This temporary deviation allows the US Route 50 Bridge to remain closed to navigation from 9:30 p.m. to 11:30 p.m. on July 4, 2015. This is an additional 30 minutes before and after the normal operating schedule for this bridge during that time. This additional closure has been requested to ensure the safety of spectators that attend the annual Ocean City July 4th fireworks show and allow for the heavy volume of vehicular traffic that transit across the drawbridge. For these reasons, should inclement weather prevent the fireworks event from taking place as planned, this deviation permits the bridge to remain closed from 9:30 p.m. to 11:30 p.m. on July 5th, 2015.

The vertical clearance of this bascule bridge is 13 feet above mean high water in the closed position and unlimited in the open position. The current operating regulation is outlined at 33 CFR 117.559(c), which allows the bridge to remain closed to navigation from 10 p.m. to 11 p.m. to accommodate the annual July 4th fireworks show

Vessels able to pass under the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and the Atlantic Ocean can be used as an alternate route for vessels with mast heights greater than 13 feet. 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 effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Dated: June 15, 2015. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
[FR Doc. 2015-15082 Filed 6-18-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2015-0531] RIN 1625-AA00 Safety Zone; Bridgefest Regatta Fireworks, Portage Canal, Hancock, MI AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a safety zone in the Portage Canal near Hancock, MI. This safety zone is intended to restrict vessels from specified waters in the Portage Canal during the Bridgefest Regatta Fireworks Display. This safety zone is necessary to protect spectators from the hazards associated with the fireworks display.

DATES:

This rule is effective from 10 p.m. to 11 p.m. on June 20, 2015.

ADDRESSES:

Documents mentioned in this preamble are part of docket [USCG-2015-0531]. 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.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Chief Petty Officer Aaron Woof, Waterways management, MSU Duluth, Coast Guard; telephone 218-725-3821, email [email protected]. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 1-800-647-5527.

SUPPLEMENTARY INFORMATION: Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

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 because doing so would be impracticable and contrary to the public interest. In May of this year, the Coast Guard discovered an error in the coordinates for the safety zone for the Bridgefest Regatta Fireworks in 33 CFR 165.943(a)(1). On May 4, 2015, the COTP Duluth signed a NPRM to correct the error (USCG-2015-0215). This NPRM has yet to publish in the Federal Register. Because the fireworks event is scheduled for June 20, 2015, there is insufficient time to accommodate the comment period. Thus, delaying the effective date of this rule to wait for the comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with the fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

B. Basis and Purpose

The legal basis and authorities for this rule are found in 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.

Between 10 p.m. and 11 p.m. on June 20, 2015, Bridgefest Regatta fireworks display will take place within the Portage Canal in Hancock, MI. The likely combination of recreation vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. Establishing a safety zone around the launch site will help ensure the safety of persons and recreational boats during the fireworks display.

C. Discussion of the Final Rule

In light of the aforementioned hazards, the Captain of the Port Duluth has determined that a temporary safety zone is necessary to ensure the safety of spectators and participants during the fireworks display. This safety zone will encompass all waters of the Portage Canal within an area bounded by a circle with a 280 foot radius at position 47° 07′ 22″ N, 088° 35′ 39″ W.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or 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.

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for an hour on a single day. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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. Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this temporary rule on small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of recreational vessels intending to transit or anchor in a portion of the Portage Canal in Hancock, MI from 10 p.m. to 11 p.m. on June 20, 2015.”

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of the zone, we would issue local Broadcast Notice to Mariners so vessel owners and operators can plan accordingly.

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

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 establishing a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reporting and record keeping 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 AREAS 1. The authority citation for Part 165 continues to read as follows: Authority:

33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T09-0531 to read as follows:
§ 165.T09-0531 Safety zone; Bridgefest Regatta Fireworks, Portage Canal, Hancock, MI.

(a) Location. All waters of the Portage Canal within an area bounded by a circle with a 280 foot radius at position 47°07′22″ N, 088°35′39″ W.

(b) Effective period. This safety zone is effective from 10 p.m. to 11 p.m. on June 20, 2015.

(c) Regulations. (1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Duluth, or his designated on-scene representative.

(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Duluth or his designated on-scene representative.

(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Duluth or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Duluth or his on-scene representative.

Dated: June 10, 2015. A.H. Moore, Jr., Commander, U.S. Coast Guard, Captain of the Port Duluth.
[FR Doc. 2015-15188 Filed 6-18-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AP43 Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide AGENCY:

Department of Veterans Affairs.

ACTION:

Interim final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending its regulation governing individuals presumed to have been exposed to certain herbicides. Specifically, VA is expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era. In addition, the regulation will establish a presumption that members of this group who later develop an Agent Orange presumptive condition were disabled during the relevant period of service, thus establishing that this service constituted “active, naval, military or air service.” The effect of this action is to presume herbicide exposure for these individuals and to allow individuals who were exposed to herbicides during reserve service to establish veteran status for VA purposes and eligibility for some VA benefits. The need for this action results from a recent decision by the Secretary of Veterans Affairs to acknowledge that individuals who had regular and repeated exposure to C-123 aircraft that the United States Air Force used to spray the herbicides in Vietnam during Operation Ranch Hand were exposed to Agent Orange.

DATES:

Effective Date: This interim final rule is effective on June 19, 2015.

Applicability Dates: This interim final rule is applicable to any claim for service connection for an Agent Orange presumptive condition filed by a covered individual that is pending on or after June 19, 2015.

Comment date: Comments must be received on or before August 18, 2015.

FOR FURTHER INFORMATION CONTACT:

Stephanie Li, Chief, Regulations Staff, Compensation Service (21C), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420, (202) 461-9700 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

In 2014, VA commissioned the National Academy of Sciences' Institute of Medicine (IOM) to conduct a consensus study of all available scientific literature and knowledge on the subject of residual exposure to Agent Orange from service on aircraft formerly used during Operation Ranch Hand in Vietnam. VA commissioned this study to get a better understanding of the potential harmful exposures and health effects involved in serving on these aircraft after the conclusion of herbicide spraying operations in Vietnam. Specifically, VA requested that the IOM “determine whether there had been exposures that could lead to excess risk of adverse health outcomes among [Air Force] Reserve personnel who flew in and/or maintained C-123 aircraft (outside of Vietnam) that had previously been used to spray Agent Orange.” See Institute of Medicine, National Academy of Sciences, Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft 10 (2015), available at http://www.publichealth.va.gov/exposures/agentorange/publications/institute-of-medicine.asp.

According to the IOM's 2015 report on C-123 exposures, from 1972 to 1982, approximately 1,500 to 2,100 Air Force Reserve personnel trained and worked on C-123 aircraft, of which approximately 30 had formally been used to spray herbicides in Vietnam. Id. at 9. The report noted that the aircraft had been assigned to a few Air Force Reserve units where they were used for military airlift, medical transport, and cargo transport operations in the United States and internationally. Id. at 26. Regarding the potential for harmful exposures, the IOM found that Reservists who served as flight crew (pilot, navigator, flight engineer, and loadmaster), ground maintenance crew, and aero-medical personnel had regular and repeated contact with the aircraft. Id. at 26-27. The report identified the specific aircraft and the Reserve units to which they were assigned, and concluded, “it is probable that the [herbicide] exposures of at least some [Air Force] Reservists exceeded levels equivalent to some guidelines established for office workers in enclosed settings.” Id. at 62. The IOM determined that it is “plausible that the C-123s did contribute to some adverse health consequences among [Air Force] Reservists who worked in [Operation Ranch Hand] C-123s after the planes returned from Vietnam.” Id. at 62-63.

Based upon the IOM report, the Secretary of Veterans Affairs has decided that VA will acknowledge exposure to Agent Orange for approximately 1,500 to 2,100 Air Force and Air Force Reserve personnel whose military service involved regular and repeated contact with the contaminated C-123 aircraft. Therefore, this interim final rule establishes a presumption of exposure to herbicides for individuals who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. However, most individuals with such service were members of the Air Force Reserve at the time. Basic eligibility for VA benefits requires that an individual be a “veteran” as that term is defined in 38 U.S.C. 101(2): “The term `veteran' means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” Service as a member of a reserve component during a period of active duty for training or inactive duty training does not qualify an individual as a “veteran” because it does not constitute “active military, naval or air service” unless the individual is disabled or dies during that period of service as provided under 38 U.S.C. 101(24)(B) and (C).

Pursuant to the Secretary's general rulemaking authority under 38 U.S.C. 501(a), VA has provided presumptions of service connection for diseases associated with exposure to an herbicide agent. 38 CFR 3.309(e). These presumptions of service connection are consistent with the disease-based presumptions under 38 U.S.C. 1116 for Vietnam Veterans with service in the Republic of Vietnam who are presumed by law to have been exposed to an herbicide agent during such service. Because an individual must quality as a “veteran” before they are eligible for presumptions of service connection, see Smith v. Shinseki, 24 Vet. App. 40, 44 (2010) (noting “[t]he Court has held that, without previously established veteran status, the presumptions of service connection . . . are inapplicable”), VA estimates that most of the servicemembers addressed by the IOM report are not presently eligible for the regulatory disease-based presumptions of service connection.

This interim final rule establishes factual presumptions that will allow Air Force Reservists who are presumed under this interim final rule to have been exposed to herbicide during their reserve service to establish veteran status as a result of that service. Although section 101(24) requires a period of active duty for training or inactive duty training “during which the individual concerned was disabled or died” for a period of active duty for training or inactive duty training to constitute “active military, naval, or air service,” the latent effects of herbicide exposure were unrecognized when section 101(24) was enacted in 1958. Operation Ranch Hand spraying commenced in 1962 and concluded in 1971, and Congress recognized the need for presumptions of service connection for Agent Orange-related conditions and regular evaluation of the science related to such conditions in the Agent Orange Act of 1991, Public Law 102-4. Pursuant to this law, the IOM in 1992 entered into an agreement with VA to review and summarize scientific evidence concerning the association between herbicide exposure during Vietnam service and conditions that might be associated with such exposure. It issued its first report on the subject in 1994. See Institute of Medicine, National Academy of Sciences, Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam (1994), available at http://www.publichealth.va.gov/exposures/agentorange/publications/institute-of-medicine.asp. Thus, in enacting section 101(24), Congress was necessarily unaware of later scientific understanding of the potential latent effects of herbicide exposure. Indeed, Congress was necessarily informed by the science that existed at the time of enactment in 1958.

The legislative history regarding the enactment of section 101(24) does not specifically explain Congress' intent in requiring that the individual “was disabled or died” during the period of service. It is probable that Congress required a reserve component member to have been disabled “during” training because the medical science of the time understood that, if an in-service injury were to result in disability, at least some aspect of that disability generally would be manifest contemporaneous with the injury. However, subsequent developments with regard to herbicide use in Vietnam and advancements in medical understanding of the health effects of herbicide exposure raise a question regarding the application of section 101(24) to disability associated with such exposure. Viewing the generally beneficial purpose of section 101(24) in light of the evolved medical understanding, we believe it is reasonable to create a factual presumption that disability occurred during the period of service as required under section 101(24) when an individual has a present disability now scientifically associated with exposure to an herbicide agent. Specifically, the existing herbicide-related disease presumptions enumerated in 38 CFR 3.309(e), coupled with the potential for clinical uncertainty regarding when such diseases first manifested, provide a reasonable basis for presuming that disability occurred during a period of reserve service for purposes of satisfying the requirements under section 101(24)(B) or (C) in order to ensure compensation and health care for reservists disabled as a result of herbicide exposure on reserve duty.

For the above reasons, we are amending 38 CFR 3.307 regarding disease associated with exposure to certain herbicide agents to add new paragraph (a)(6)(v). As amended, § 3.307 will presume exposure to herbicide for “[a]n individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era.” Further, in consideration of the reserve component members with such service, VA will consider this presumed herbicide exposure to be an “injury” under section 101(24)(B) and (C). In turn, if such individual develops a presumptive disease listed in 38 CFR 3.309(e), as specified in 38 CFR 3.307(a)(6)(ii), “it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.” VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute “active, military, naval, or air service.” As explained, we believe this is consistent with section 101(24) because herbicide exposure has uniquely latent effects which were largely unrecognized in 1958. Covered individuals may therefore establish veteran status for purposes of VA's disability compensation, dependency and indemnity compensation, medical care, and burial benefits related to any Agent Orange-related presumptive condition.

Administrative Procedure Act

The Secretary of Veterans Affairs finds under 5 U.S.C. 553(b)(B) that there is good cause that advance notice and opportunity for public comment are impracticable, unnecessary, or contrary to the public interest and under 5 U.S.C. 553(d)(3) that there is good cause to publish this rule with an immediate effective date. This interim final rule provides a presumption of herbicide exposure for individuals who performed certain military service. This interim final rule also establishes a presumption that if such an individual develops a presumptive herbicide-related condition, the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service. These changes will make individuals who were exposed to herbicide during service eligible for some VA benefits for disabilities resulting from herbicide-related diseases. Based on the age of the individuals affected by this rule and the potential severity of the disabilities associated with their herbicide exposure, it is likely that affected individuals will have significant and urgent financial and medical needs. In order for these individuals to have access to VA benefits to include VA health care, it is essential that these rules be made effective as soon as possible.

For the above reasons, the Secretary issues this rule as an interim final rule. However, VA will consider and address comments that are received within 60 days of the date this interim final rule is published in the Federal Register.

Paperwork Reduction Act

This rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required in connection with the adoption of this interim final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act, 5 U.S.C. 601-612. Even so, the Secretary of Veterans Affairs certifies that this interim final rule will not directly affect any small entities. It will directly affect only VA beneficiaries. Accordingly, this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act.

Executive Order 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that it is not an economically significant regulatory action under Executive Order 12866. VA's regulatory impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its regulatory impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on May 11, 2015, for publication.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Dated: June 15, 2015. William F. Russo, Acting Director, Office of Regulation Policy & Management, Office of the General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 3 to read as follows:

PART 3—ADJUDICATION Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A, continues to read as follows: Authority:

38 U.S.C. 501(a), unless otherwise noted.

2. Amend § 3.307 by adding paragraph (a)(6)(v) immediately after paragraph (a)(6)(iv) and revising the authority citation at the end of the section to read as follows:
§ 3.307 Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947.

(a) * * *

(6) * * *

(v) An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service.

(Authority: 38 U.S.C. 101(24), 501(a), 1116(a)(3), and 1821)
[FR Doc. 2015-14995 Filed 6-18-15; 8:45 am] BILLING CODE 8320-01-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2014-0249; FRL-9928-82] Thiram; Pesticide Tolerance AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This regulation establishes a tolerance for residues of thiram in or on avocado. Taminco US, Inc. requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).

DATES:

This regulation is effective June 19, 2015. Objections and requests for hearings must be received on or before August 18, 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-2014-0249, 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 EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

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-2014-0249 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 18, 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-2014-0249, 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. Summary of Petitioned-For Tolerance

In the Federal Register of December 17, 2014 (79 FR 75107) (FRL-9918-90), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4E8250) by Taminco US, Inc., Two Windsor Plaza, Suite 411, 7540 Windsor Drive, Allentown, PA 18195. The petition requested that 40 CFR 180.132 be amended by establishing a tolerance for residues of the fungicide thiram in or on avocado at 8 parts per million (ppm). That document referenced a summary of the petition prepared by Taminco US, Inc, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

For reasons that are discussed in Unit IV.C., EPA is establishing a tolerance for avocado at 15 ppm.

III. Aggregate Risk Assessment and Determination of Safety

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

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

A. Toxicological Profile

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Thiram is a dimethyl dithiocarbamate fungicide. Thiram has been shown to cause neurotoxicity following acute and subchronic exposures. In the acute and subchronic neurotoxicity studies submitted, neurotoxicity is characterized as lethargy, reduced and/or tail pinch response, changes in the functional-observation battery (FOB) parameters, increased hyperactivity, changes in motor activity, and increased occurrences of rearing events. No treatment-related changes were observed in brain weights or in the histopathology of the nervous system. In a non-guideline study published in the open literature, chronic feeding of thiram to rats caused neurotoxicity, with onset of ataxia in some animals 5-19 months after beginning of treatment. However, no evidence of neurotoxicity was seen following chronic exposures in mice or rats in guideline studies submitted to the Agency. The chronic toxicity profile for thiram indicates that the liver, blood, and urinary system are the target organs for this chemical in mice, rats, and dogs. There is no evidence for increased susceptibility following in utero exposures to rats or rabbits and following pre- and post-natal exposures to rats for 2 generations. There is evidence of quantitative susceptibility in the developmental neurotoxicity (DNT) study. However, there is low concern for the increased susceptibility seen in the DNT study since the dose response is well defined with a clear NOAEL and this endpoint is used for assessing the acute dietary risk for the most sensitive population. Thiram is classified as “not likely to be carcinogenic to humans” based on lack of evidence for carcinogenicity in mice or rats. There are no mutagenic/genotoxic concerns with thiram. The available toxicological database for thiram suggests that this chemical has a low to moderate acute-toxicity profile.

Specific information on the studies received and the nature of the adverse effects caused by thiram as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Thiram. Revised Human Health Risk Assessment for the Import Use of Thiram on Avocado, PP#4E8250 and Banana, PP#4E8268”.

B. Toxicological Points of Departure/Levels of Concern

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

A summary of the toxicological endpoints for thiram used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of February 12, 2014 (79 FR 8295) (FRL-9904-22).

C. Exposure Assessment

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to thiram, EPA considered exposure under the petitioned-for tolerances as well as all existing thiram tolerances in 40 CFR 180.132. EPA assessed dietary exposures from thiram in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

A partially refined probabilistic acute dietary-exposure assessment was performed using 100 percent crop treated (PCT), average field trial residues or pulp residues for blended commodities, distributions of field trial residues, highest pulp residue, and empirical processing factors.

ii. Chronic exposure. Tolerances-level residues, average field-trial residues, and highest pulp residues for avocado with 100 PCT were used for the chronic dietary exposure analysis for all crops. Empirical processing factors were also used.

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

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

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

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of thiram for acute exposures are 0.0478 ppm and 0.0025 ppm for chronic exposures (for non-cancer assessments) for surface water. Ground water sources were not included (for acute or chronic exposures), as the EDWCs for ground water are minimal in comparison to those for surface water. Surface water EDWCs were incorporated in Dietary Exposure Evaluation Model Food Commodity Intake Database (DEEM-FCID) into the food categories “water, direct, all sources” and “water, indirect, all sources” for the dietary assessments.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Thiram is not available for sale or use by homeowner applicators; therefore, there are no residential handler exposure scenarios. However, there is potential for residential post-application dermal exposure from treated golf course greens and tees. Residential exposures resulting from dermal contact with thiram-treated turf were assessed for children 6 to <11 years old, children 11 to <16 years old, and adults as described in document “Thiram. Revised Human Health Risk Assessment For Import Use of Thiram on Avocado,” p. 14.

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.”

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

D. Safety Factor for Infants and Children

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

2. Prenatal and postnatal sensitivity. There was no evidence of increased susceptibility following in utero exposure to rats or rabbits or following prenatal and post-natal exposures to rats. There is evidence of quantitative susceptibility in the DNT study. However, there is low concern for the enhanced susceptibility seen in the DNT study because:

i. Clear NOAELs/LOAELs were established for the offspring effects.

ii. The dose-response is well defined.

iii. The behavioral effect of concern were observed only in females on one evaluation time period.

iv. The dose/endpoint is used for acute dietary risk for the most sensitive population subgroup (females 13-49 years old). Consequently, there are no residual uncertainties for pre- and post-natal toxicity.

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

i. The toxicity database for thiram is complete with acceptable neurotoxicity, developmental, and reproductive toxicity studies.

ii. As explained in this unit, there are no residual uncertainties for prenatal and post-natal toxicity.

iii. There are no residual uncertainties in the thiram database with regards to dietary exposure. A refined probabilistic acute dietary-exposure assessment was performed using maximum PCT, tolerance, the highest residue found during field-trials, distribution of field trial residues, Federal Drug Administration (FDA) monitoring data for apples, and empirical processing factors. A refined chronic dietary-exposure assessment was performed using tolerances and average estimated PCT. EPA made conservative (protective) assumptions in the water modeling used to assess exposure to thiram in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children. These assessments will not underestimate the exposure and risks posed by thiram.

E. Aggregate Risks and Determination of Safety

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. The acute dietary risk estimates are not of concern to EPA (<100% aPAD) at the 95th exposure percentile for the general U.S. population and all other population subgroups. The acute dietary exposure was 62% of the aPAD for females 13-49 years old, the population subgroup with the highest percent aPAD.

2. Chronic risk. The chronic aggregate risk assessment takes into account exposure estimates from dietary consumption of thiram (food and drinking water). The chronic dietary risk estimates are not of concern to EPA (<100% cPAD) for the general U.S. population and all other population subgroups. The chronic dietary exposure was 70% of the cPAD for children 1-2 years old, the population subgroup with the highest estimated chronic dietary exposure.

3. Short-term and intermediate-term risk. In aggregating short- and intermediate-term risk, the Agency routinely combines background chronic dietary exposure (food + water) with short/intermediate-term residential exposure (dermal only). The combined exposure may then be used to calculate an MOE for aggregate risk. Using the golfer scenario for adult males, adult females, and children >6 years old, combined with the applicable subpopulation with the greatest dietary exposure, the total short/intermediate-term food and residential aggregate MOEs are 570, 540, and 280, respectively. As these MOEs are above the target MOE of 100, the short- and intermediate-term aggregate risks are not of concern. For children <6 years old, there is no residential exposure, therefore, a short/intermediate term aggregate risk assessment is not required for this population.

4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, thiram is not expected to pose a cancer risk to humans.

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

IV. Other Considerations A. Analytical Enforcement Methodology

Adequate enforcement methodology (colorimetric analytical method) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

B. International Residue Limits

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for thiram in or on avocado.

C. Revisions to Petitioned-For Tolerances

The petitioner requested a tolerance for residues of thiram on avocado at 8 ppm. EPA is establishing a tolerance at 15 ppm based on available data and the Organization for Economic Cooperation and Development (OECD) Tolerance Calculation Procedures.

V. Conclusion

Therefore, a tolerance is established for residues of thiram in or on avocado at 15 ppm.

VI. Statutory and Executive Order Reviews

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

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

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

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

VII. 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: June 9, 2015. Susan Lewis, 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. In § 180.132, alphabetically add the commodity “avocado” to the table in paragraph (a) to read as follows:
§ 180.132 Thiram; tolerance for residues.

(a) * * *

Commodity Parts per
  • million
  • *    *    *    *    *     Avocado 1 15 *    *    *    *    *     1 No U.S. registrations as of September 23, 2009.
    [FR Doc. 2015-14944 Filed 6-18-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 385 Hazardous Materials Safety Permit (HMSP) Program: Amendment to Enforcement Policy AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Amendment to enforcement policy.

    SUMMARY:

    Section 33014 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) required the Secretary of the U.S. Department of Transportation (DOT) to conduct a study and submit a report to Congress on the implementation of the DOT Hazardous Materials Safety Permit (HMSP) program. DOT completed the study and submitted a report to Congress in March 2014. This document announces implementation of two of the six recommendations in the report to Congress: Fully utilize the Safety Measurement System (SMS) as part of the HMSP review process and institute an ongoing requirement to conduct compliance reviews for HMSP motor carriers with insufficient data to utilize SMS. These recommendations are being implemented under the existing Safety Fitness Procedure regulations. FMCSA will use SMS scores to provide enhanced oversight of HMSP holders, to identify poor-performing carriers for a safety fitness compliance review, and to provide grounds for suspension or revocation. Both of these processes afford the motor carrier the right to administrative review and the opportunity to present corrective action.

    DATES:

    The changes to the enforcement policy will take effect on August 18, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Paul Bomgardner, (202) 493-0027, or [email protected], Chief of the Hazardous Materials Division, Office of Enforcement and Compliance, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590. Office hours are from 9 a.m. to 5 p.m., E.T., Monday through Friday, except for Federal holidays.

    SUPPLEMENTARY INFORMATION: Background

    On January 1, 2005, the Federal Motor Carrier Safety Administration (FMCSA) began the HMSP program for intrastate, interstate, and foreign motor carriers transporting specified types and amounts of particularly dangerous hazardous material. HMSPs are required for a small subset of motor carriers transporting the following DOT-regulated hazardous material:

    1. Highway Route Controlled Quantity (HRCQ) of a Class 7 (radioactive) material;

    2. More than 55 pounds of a Division 1.1, 1.2, or 1.3 Explosive, or an amount of a Division 1.5 material requiring placarding;

    3. Certain Poison by Inhalation Hazard (PIH) materials, including anhydrous ammonia, and

    4. Compressed or refrigerated liquefied methane or liquefied natural gas in packaging equal to or greater than 3,500 water gallons.

    FMCSA's Motor Carrier Management Information System (MCMIS) contains records for approximately 525,000 active interstate motor carriers operating in the United States. MCMIS records show almost 11,000 interstate and intrastate motor carriers that have had an inspection indicating that they transport hazardous material requiring placards.1 Approximately 1,500 motor carriers possess an HMSP.

    1 See: 49 CFR part 172 Subpart F—Placarding

    The HMSP program is based on the premise that carriers transporting certain amounts of particularly dangerous hazardous material must maintain a higher minimum level of safety in their operations than other carriers and must additionally demonstrate compliance with the critical regulatory requirements in the DOT Hazardous Materials Regulations (HMR), 49 CFR parts 171-180, and Federal Motor Carrier Safety Regulations (FMCSR), 49 CFR parts 350-399. Under FMCSA's current program, in order to obtain or renew a HMSP, a carrier must demonstrate that it meets the following regulatory requirements specified in the FMCSR at 49 CFR 385.407 and 387.7:

    1. Maintains the minimum level of financial responsibility required by 49 CFR part 387.

    2. Maintains current Pipeline and Hazardous Materials Safety Administration (PHMSA) registration.

    3. Certifies that it has security and communications plans that comply with 49 CFR part 172 of the HMR and 49 CFR part 385 of the FMCSR.

    4. Is assigned a “satisfactory” safety fitness rating.

    5. Additionally, at the time of initial application and renewal, the carrier's crash and inspection records in MCMIS for the prior 12 month period may not exceed the threshold rate established by FMCSA, based on crash and out-of-service rates for the hazardous material motor carrier industry, indicating that the carrier has:

    a. A crash rate in the “top 30 percent of the national average,” or

    b. A driver, vehicle, hazardous material, or total out-of-service (OOS) rate in the “top 30 percent of the national average.”

    As stated above, section 33014 of MAP-21, Pub. L. 112-141, div. C, title III, 126 Stat. 405, 840 (July 6, 2012) (set out as a note to 49 U.S.C. 5109) required the Secretary to conduct a study and submit a report to Congress on the implementation of the DOT's HMSP program. Congress further directed the Secretary to include in the study a review of “actions the Secretary could implement to improve the program, including whether to provide opportunities for an additional level of fitness review prior to the denial, revocation, or suspension of a safety permit.” Finally, section 33014 required the Secretary to institute a rulemaking to make any necessary improvements to the HMSP program or publish in the Federal Register the Secretary's justification for why a rulemaking is not necessary.

    DOT completed the study and submitted its “Hazardous Materials Safety Permit Program Implementation Report” (HMSP Report) to Congress in March 2014. This notice announces implementation of two of the six recommendations in the report to Congress: (1) Fully utilize the Safety Measurement System (SMS) as part of the HMSP review process and (2) institute an ongoing requirement to conduct comprehensive investigations for HMSP motor carriers with insufficient data to utilize SMS. This Federal Register publication provides notice of the Agency's revised interpretation of certain regulations in 49 CFR part 385, subpart E, in accordance with congressional directives and the recommendations in the report to Congress.

    On December 16, 2014, Congress passed the 2015 Omnibus Appropriations law entitled, “Consolidated and Further Continuing Appropriations Act, 2015,” Pub. L. 113-235, 128 Stat. 2130 (Dec. 16, 2014) which restricts FMCSA's use of appropriated funds “to deny an application to renew a Hazardous Materials Safety Program permit for a motor carrier based on that carrier's Hazardous Materials Out-of-Service rate, unless the carrier has the opportunity to submit a written description of corrective actions taken, and other documentation the carrier wishes the Secretary to consider, including submitting a corrective action plan, and the Secretary determines the actions or plan is insufficient to address the safety concerns that resulted in that Hazardous Materials Out-of- Service rate.” Pub. L. 113-235, div. K, Title I, § 134. By using SMS scores to identify a HMSP holder for a safety fitness review, the Agency, while complying with this congressional limitation, will ensure that transportation of the hazardous materials specified in 49 CFR 385.403 does not present an undue safety risk to the public.

    FMCSA provides notice herein that the Agency is distinguishing the requirements for issuance of an initial HMSP as specified in 49 CFR 385.407, from the requirements for HMSP renewal, as specified in 49 CFR 385.419. Distinguishing these requirements, as discussed below, enables the Agency to more actively monitor an HMSP holder's safety and compliance status, while providing more flexibility to HMSP holders attempting to correct identified deficiencies. Pursuant to the 2015 spending restriction, the Agency is no longer denying HMSP renewals based on a carrier's unacceptable hazardous materials out-of-service rate. Upon the effective date of this notice, the Agency will no longer deny a HMSP holder's application for renewal of its HMSP based on a crash rate, driver, vehicle, hazardous material or total out-of-service rate that is in the top, or worst-performing, 30 percent of the national average.

    New applicants for HMSPs, which includes any applicant that is not a current HMSP holder, and holders of temporary HMSPs (T-HMSP) will continue to be subject to the established crash, driver, vehicle, hazardous material or total out-of-service threshold rates in order to qualify for the initial issuance of a HMSP. The requirement that new applicants not have a crash rate or a driver, vehicle, hazardous material, or total out-of-service (OOS) rate for the prior 12 months, as shown below, remains unchanged:

    a. A crash rate in the “top 30 percent of the national average,” or

    b. A driver, vehicle, hazardous material or total out-of-service (OOS) rate in the “top 30 percent of the national average.”

    Pursuant to the interpretive rule announced in this Notice, non-temporary HMSP holders will no longer be required to have crash and OOS rates that are below the “30 percent threshold” at the time of the HMSP holder's two-year renewal. Rather, FMCSA will continually monitor these HMSP holders using SMS analysis as a basis for a compliance review referral or proposed revocation or suspension based on the criteria listed in 49 CFR 385.421. HMSP holders will continue to be subject to the renewal provisions in 49 CFR 385.419, which require the carrier to submit its biennial update.

    The first recommendation in the HMSP Report to Congress was for FMCSA to fully utilize the Agency's SMS to provide continuous monitoring of HMSP holders' safety performance in order to determine a carrier's continuing suitability to retain or renew a non-temporary HMSP. Carriers applying for a six-month T-HMSP will be subject to the requirements for initial issuance of a HMSP in § 385.407. Temporary HMSPs are issued when a motor carrier meets all of the qualifications in § 385.407 except for having a safety rating assigned. If the carrier has no safety rating, the T-HMSP is issued, and the motor carrier is assigned for a comprehensive investigation within six months of the FMCSA field staff being notified. FMCSA may extend the T-HMSP for two months, when necessary due to the Agency's inability to schedule a comprehensive investigation during the initial six-month timeframe. Once the carrier receives a comprehensive investigation, and subsequently is assigned a satisfactory safety rating, the carrier is eligible for a full, non-temporary HMSP subject to the initial requirements in § 385.407. Once the non-temporary HMSP is issued, the Agency will place the carrier under the continuous monitoring program described herein.

    Non-temporary HMSP carriers will continue to be subject to the current intervention thresholds for all carriers of placarded hazardous material under the seven Behavior Analysis and Safety Improvement Categories (BASIC) in SMS. These intervention thresholds are listed below:

    • 60th percentile for Unsafe Driving, Hours of Service Compliance, and Crash Indicator;

    • 75th percentile for Driver Fitness, Controlled Substances/Alcohol, and Vehicle Maintenance; and

    • 80th percentile for Hazardous Material Compliance.

    For carriers that have a non-temporary HMSP, FMCSA will review the permit holder's SMS scores monthly to determine if the carrier has met or exceeded intervention thresholds for either the Hazardous Materials Compliance BASIC (HM BASIC) or met or exceeded thresholds for any two of the other BASICs for the preceding two consecutive months. If the carrier meets or exceeds the HM BASIC or meets or exceeds thresholds of any other two BASICs over a consecutive two-month period, FMCSA will identify the carrier for investigation with hazardous material compliance emphasis. Using the monthly data provides a more powerful tool for identifying the HMSP carriers that have overall compliance problems, warranting a comprehensive investigation, or issues in one particular area of safety performance (i.e., crash rate, driver, vehicle, or hazardous material). A comprehensive investigation will entail a full-rated review that will also determine whether the carrier meets the safety fitness requirement in 49 CFR 385.421(a)(3).

    The SMS approach provides a strengthened, continuous monitoring process for HMSP holders, which merit heightened oversight and monitoring due to the dangerous nature of the materials they transport. SMS monitoring further allows the Agency to expeditiously identify carrier problems and better focus on specific areas that the carrier must address immediately, in order to avoid potential suspension or revocation of its HMSP under 49 CFR 385.421(a).

    If a carrier fails to comply with the applicable regulations, or an order issued under those regulations, indicating that the carrier is not fit to transport hazardous material that requires a HMSP, such conduct could similarly trigger a proposed suspension or revocation under § 385.421(a)(5), (6), (7), (8), or (10). It should be noted that a proposed suspension or revocation under 385.421(a)(5) would be based on serious instances of non-compliance, a less than satisfactory safety rating, or loss of operating authority. The proposed suspension or revocation would be subject to the 30-day notice requirement in § 385.421(c)(2), and the carrier would have an opportunity to take corrective action and/or to apply for administrative review under § 385.423 before FMCSA took final action.

    If a carrier's non-temporary HMSP is denied, suspended or revoked pursuant to § 385.421, the carrier will have various options for seeking administrative review and providing evidence of corrective action. If the suspension or revocation is based on a less than satisfactory safety rating, the carrier may request administrative review of the proposed rating under § 385.15, or may request upgrade of a proposed safety rating based on corrective action under § 385.17, as provided in § 385.423(a). The carrier may seek administrative review of other grounds for a proposed suspension or revocation as provided in § 385.423(c). A proposed suspension or revocation under § 385.421(c)(2) will not become effective during the pendency of a request for administrative review that is timely-filed during the 30-day timeframe from the date of service of the written notice of proposed suspension or revocation. The 30-day effective date and the tolling of this date by a request for administrative review of proposed suspensions or revocations that are not related to a less than satisfactory safety rating allows the carrier time to take and submit evidence of corrective action.

    The second recommendation in the HMSP Report to Congress was for FMCSA to institute an ongoing requirement to more closely monitor HMSP carriers with insufficient SMS data—that is, HMSP carriers that rarely undergo roadside inspections and have a safety rating over 4 years old. Because of the lack of information and oversight on these carriers, FMCSA will conduct comprehensive investigations for HMSP carriers when the carrier has insufficient data to calculate a percentile in SMS during any month of the previous 48-month period. HMSP carriers will not be allowed to operate for more than four years without either having enough safety performance data to confirm compliance, or having received a compliance review that results in a satisfactory rating. By instituting a specific 4-year investigation cycle for non-temporary HMSP carriers with insufficient safety data, these carriers will become subject to increased oversight.

    These changes will be effective August 18, 2015.

    Issued on: June 8, 2015. T.F. Scott Darling, III, Chief Counsel.
    [FR Doc. 2015-15091 Filed 6-18-15; 8:45 am] BILLING CODE 4910-EX-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 150211144-5509-02] RIN 0648-BE89 Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder, Scup, and Black Sea Bass Fisheries; Fishing Year 2015 AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS is implementing management measures for the 2015 summer flounder, scup, and black sea bass recreational fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for each fishing year. The intent of these measures is to constrain recreational catch to established limits and prevent overfishing of the summer flounder, scup, and black sea bass resources.

    DATES:

    Effective June 19, 2015.

    ADDRESSES:

    Copies of the Supplemental Information Report and other supporting documents for the recreational harvest measures are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The recreational harvest measures document is also accessible via the Internet at: http://www.greateratlantic.fisheries.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    Moira Kelly, Fishery Policy Analyst, (978) 281-9218.

    SUPPLEMENTARY INFORMATION: General Background

    The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission, in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35°13.3′ N. lat. (the approximate latitude of Cape Hatteras, North Carolina) northward to the U.S./Canada border. States manage these three species within 3 nautical miles (4.83 km) of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The applicable species-specific Federal regulations govern vessels and individual fishermen fishing in Federal waters of the exclusive economic zone (EEZ), as well as vessels possessing a summer flounder, scup, or black sea bass Federal charter/party vessel permit, regardless of where they fish.

    A proposed rule to implement the 2015 Federal recreational management measures (minimum fish size, season, and possession limit) for the summer flounder, scup, and black sea bass fisheries was published in the Federal Register on May 5, 2015 (80 FR 25656), with a 15-day comment period that ended on May 20, 2015. Additional background and information on the process to develop the measures described is provided in the preamble to the proposed rule and is not repeated here.

    2015 Recreational Management Measures

    NMFS is implementing the following measures that would apply in the Federal waters of the EEZ. These measures apply to all federally permitted party/charter vessels with applicable summer flounder, scup, or black sea bass permits, regardless of where they fish, unless the state in which they land implements measures that are more restrictive. These measures are intended to achieve, but not exceed, the previously established recreational harvest limits for these fisheries (December 30, 2014; 79 FR 78311). More detail on these proposed measures is provided in the following sections.

    Table 1—Summary of 2015 Summer Flounder, Scup, and Black Sea Bass Recreational Management Measures Minimum size Possession limit Season Summer Flounder, through December 31, 2015 Conservation equivalency—specific management measures determined by state of landing (see Table 2). Summer Flounder, beginning January 1, 2016 18 inches (45.7 cm) 4 fish May 1-September 30. Scup 9 inches (25.4 cm) 50 fish January 1-December 31. Black Sea Bass 12.5 inches (31.8 cm) 15 fish May 15-September 18, October 22-December 31. Summer Flounder Recreational Management Measures

    This rule implements the Council and Commission recommendation to use conservation equivalency to manage the 2015 summer flounder recreational fishery. The 2015 recreational harvest limit for summer flounder is 7.38 million lb (3,347 mt). Final landings for 2014 were 7.39 million lb (3,354 mt), just above the recreational harvest limit for 2015.

    Conservation equivalency, as established by Framework Adjustment 2 (July 29, 2011; 66 FR 36208), allows each state to establish its own recreational management measures to achieve its state harvest limit partitioned by the Commission from the coastwide recreational harvest limit, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed states to form regions for conservation equivalency in order to minimize differences in regulations for anglers fishing in adjacent waters.

    The Council and Board voted to maintain the conservation equivalency structure that was in place for fishing year 2014, as follows: (1) Massachusettes; (2) Rhode Island; (3) Connecticut, New York, and New Jersey; (4) Delaware, Maryland, and Virginia; and (5) North Carolina. All states within a region must implement identical measures (i.e., minimum size, possession limit, and season length). By implementing conservation equivalency, the Federal summer flounder regulations are suspended, and vessels are only subject to the measures for the state in which they land. This means that minimum fish sizes, possession limits, and fishing seasons developed and adopted by the five regions from Massachusetts to North Carolina replace the Federal waters measures for 2015.

    The Commission notified the NMFS Greater Atlantic Regional Administrator by letter dated April 30, 2015, that the 2015 summer flounder recreational fishery management measures implemented by the states and regions described above have been reviewed by the Commission's Technical Committee and approved by the Commission's Summer Flounder Management Board. The correspondence indicates that the Commission-approved management measures are projected to restrict 2015 recreational summer flounder coastwide landings consistent with the state-specific requirements established by the Technical Committee and Board through the Commission process.

    Based on the recommendation of the Commission, we find that the recreational summer flounder fishing measures implemented for 2015 in state waters are, collectively, the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.104(b), 648.105, and 648.106(a), respectively. According to § 648.107(a)(1), vessels subject to the recreational fishing measures of this part and landing summer flounder in a state with an approved conservation equivalency program shall not be subject to Federal measures, and shall instead be subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) has been amended to recognize state-implemented measures as conservation equivalent of the coastwide recreational management measures for 2015. The 2015 summer flounder management measures adopted by the individual states vary according to the state of landing, as specified in Table 2.

    Table 2—2015 Commission-Approved Conservation Equivalent Recreational Management Measures for Summer Flounder State Minimum size
  • (inches)
  • Minimum size
  • (cm)
  • Possession limit
  • (number of fish)
  • Open season
    Massachusetts 16 40.6 5 May 22-September 30. Rhode Island 18 45.7 8 May 1-December 31. Connecticut * 18 45.7 5 May 17-September 21. New York 18 45.7 5 May 17-September 21. New Jersey * 18 45.7 5 May 23-September 26. Delaware 16 40.6 4 All Year. Maryland 16 40.6 4 All Year. Potomac River Fisheries Commission 16 40.6 4 All year. Virginia 16 40.6 4 All year. North Carolina 15 38.1 6 All Year. * Note: At 46 designated shore sites in Connecticut, anglers may keep 5 fish at 16 inches (40.6 cm), May 17-September 21. At 1 designated site in New Jersey, anglers may keep 2 fish at 16.0 inches (40.6 cm), May 23-September 26.

    In addition, this action maintains the current default coastwide measures (18-inch (45.7-cm) minimum size, 4-fish possession limit, May 1-September 30 open fishing season), that become effective January 1, 2016, when conservation equivalency expires.

    Scup Recreational Management Measures

    NMFS is implementing the Council and Commission's recommended scup recreational management measures for 2015 in Federal waters. The measures for the 2015 scup recreational fishery are: 9-inch (22.9-cm) minimum fish size; 50-fish per person per trip possession limit; and an open season of January 1 through December 31.

    The 2015 scup recreational harvest limit is 6.80 million lb (3,084 mt). Final 2014 scup recreational landings were 4.12 million lb (1,870 mt). The increase in the possession limit from 30 to 50 fish is intended to promote an increase in recreational scup fishing in order to more fully achieve, but not exceed, the recreational harvest limit.

    Black Sea Bass Recreational Management Measures

    This final rule implements the Council and Commission's recommended recreational management measures to constrain landings for black sea bass in 2015: A 12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and open seasons of May 15-September 21 and October 22-December 31. The 2015 black sea bass recreational harvest limit is 2.33 million lb (1,056 mt). The final 2014 landings were 3.65 million lb (1,656 mt). During development of these and the state measures, projected landings for 2014 were 3.45 million lb (1,565 mt), which requires a 33-percent reduction in landings relative to the 2015 recreational harvest limit.

    Recreational black sea bass catch occurs primarily in state waters in the states of New Jersey through Massachusetts (i.e., the northern region). Since 2011, the management measures in the northern region have been more restrictive than in Federal waters. The northern states, through the Commission process, have implemented 2015 measures to achieve the 33-percent reduction in landings from each state that was projected to be needed when this action was under development. This reduction, in combination with the Council's recommendation of maintaining the status quo measures in Federal waters, are intended to achieve, but not exceed, the recreational harvest limit and recreational annual catch limit in 2015. The southern region states (Delaware through Cape Hatteras, North Carolina) have implemented state waters measures that are equivalent to the Federal measures. The states of Maine and New Hampshire have implemented recreational black sea bass measures for the first time in response to the stock being more commonly found in these states' waters.

    In 2012, recreational black sea bass catch exceeded the annual catch limit of 2.52 million lb (1,143 mt) by 129 percent. In 2013, recreational black sea bass catch exceeded the annual catch limit of 2.9 million lb (1,315 mt) by 5 percent. Because the average catch for these two years exceeds the average annual catch limit from the same timeframe, as described in the regulations, an accountability measure is applicable to the 2015 fishery. An accountability measure was implemented for the 2014 fishing year because of the 2012 overage. The 2015 measures are functionally the same as those implemented last year to comply with the accountability measure (12.5-inch (31.8-cm) minimum size, 15-fish possession limit, and 201-day fishing season). Continuing these regulations preserves the accountability measure that was applied last year; as such, no further accountability measures are necessary for 2015.

    Additional Regulatory Change

    This rule also clarifies that the regulations for summer flounder, scup, and black sea bass possession limits are per person, per trip. While it is clear in the FMP and subsequent amendments and framework adjustments that the possession limits are intended to apply for the entirety of a fishing trip, regardless of the length of that trip, the regulations were less specific. This action corrects that oversight.

    Comments and Responses

    Three comments were received on the proposed rule. These comments were not directly related to the 2015 recreational management measures as proposed, but raised more general issues. No changes to the 2015 recreational management measures are being made as a result.

    Comment 1: The first commenter expressed concern that reduced black sea bass fishing would result in increased pressure on other stocks, such as red hake, bluefish, and winter flounder, and noted a marked increase in fishing on red hake when other recreational fisheries have restrictive measures. The commenter advised leaving the fishery open during the summer months.

    Response: The Federal black sea bass fishery will be open during the summer months, but some states may implement more restrictive seasons in order to achieve the reduction necessary, described above. NMFS has no authority over the states' measures and they are not the subject of this rule. In addition, the other species noted by the commenter are all federally managed species with annual catch limits and accountability measures designed to ensure catch stays within scientifically-based levels.

    Comment 2: The second commenter was not specific to which measures he was referring, but noted that recreational measures should not be made more restrictive and that more restrictive measures should be placed on the commercial fishery.

    Response: This rulemaking is specific to the recreational fisheries for summer flounder, scup, and black sea bass only. For all three species managed under the Summer Flounder, Scup, and Black Sea Bass FMP, the commercial and recreational sectors have separate annual catch limits. The amount of landings allocated to each sector is specified in the FMP. This allocation structure is intended to ensure that neither sector is held accountable for catch overages in the other sector. The commercial fisheries are regulated with seasonal, gear, permit, and landings restrictions. These combinations of measures, both in Federal and state waters, are designed to achieve, but not exceed, the commercial coastwide landings quotas. The commercial accountability measures require a pound-for-pound payback of any quota or annual catch limit overages. In recent years, small overages of the commercial quota or commercial annual catch limit have been accounted for by reducing the following year's quota equal to the amount of the overage, as needed. Further restrictions on the commercial fishery are not warranted at this time. Should the commercial catch need to be reduced for any of these species, those changes would be implemented in a commercial sector-specific rulemaking.

    Comment 3: The commenter noted that limits on the number and size of fish caught recreationally were important to the long-term sustainability of the fisheries.

    Response: NMFS agrees and is implementing these measures specifically to ensure that the scientifically-based recreational harvest limits are not exceeded.

    Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that the rule implementing the 2015 summer flounder, scup, and black sea bass recreational management measures is necessary for the conservation and management of the summer flounder, scup, and black sea bass fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement for a 30-day delay in effectiveness under the provisions of section 553(d) of the Administrative Procedure Act because a delay in its effectiveness would not serve any legitimate purpose, while unfairly prejudicing federally permitted charter/party vessels. This action will increase the possession limit for the recreational scup fishery in Federal waters and allow federally permitted charter/party vessels to be subject to the new summer flounder measures in their respective states. Because some states' summer flounder fisheries are already open or will open during the 30-day period following publication of this rule, federally permitted charter/party vessels would be restricted to the existing summer flounder coastwide regulations (18-inch (45.7-cm) minimum size and a 4-fish per person possession limit) until the Federal regulations are effective. This would unnecessarily disadvantage federally permitted vessels, which would be subject to the more restrictive measures while state-licensed vessels could be engaged in fishing activities under this year's management measures. If this final rule were delayed for 30 days, the fishery would likely forego some amount of landings and revenues during the delay period.

    While these restrictions would be alleviated after this rule becomes effective, fishermen may be not able to recoup the lost economic opportunity of foregone trips that would result from delaying the effectiveness of this action. Finally, requiring a 30-day delay before the final rule becomes effective would not provide any benefit to the regulated parties. Unlike actions that require an adjustment period to comply with new rules, charter/party operators will not have to purchase new equipment or otherwise expend time or money to comply with these management measures. Rather, complying with this final rule simply means adhering to the published management measures for each relevant species of fish while the charter/party operators are engaged in fishing activities.

    For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay and to implement this rule upon publication in the Federal Register.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 15, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.106, paragraphs (a) and (c) are revised to read as follows:
    § 648.106 Summer flounder possession restrictions.

    (a) Party/charter and recreational possession limits. Unless otherwise specified pursuant to § 648.107, no person shall possess more than four summer flounder in, or harvested from, the EEZ, per trip unless that person is the owner or operator of a fishing vessel issued a summer flounder moratorium permit, or is issued a summer flounder dealer permit. Persons aboard a commercial vessel that is not eligible for a summer flounder moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a summer flounder moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in § 648.102.

    (c) Summer flounder harvested by vessels subject to the possession limit with more than one person on board may be pooled in one or more containers. Compliance with the possession limit will be determined by dividing the number of summer flounder on board by the number of persons on board, other than the captain and the crew. If there is a violation of the possession limit on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner and operator of the vessel.

    3. In § 648.107, paragraph (a) introductory text is revised to read as follows:
    § 648.107 Conservation equivalent measures for the summer flounder fishery.

    (a) The Regional Administrator has determined that the recreational fishing measures implemented by the states of Maine through North Carolina for 2015 are the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. This determination is based on a recommendation from the Summer Flounder Board of the Atlantic States Marine Fisheries Commission.

    4. In § 648.128, paragraphs (a) and (c) are revised to read as follows:
    § 648.128 Scup possession restrictions.

    (a) Party/Charter and recreational possession limits. No person shall possess more than 50 scup in, or harvested from, per trip the EEZ unless that person is the owner or operator of a fishing vessel issued a scup moratorium permit, or is issued a scup dealer permit. Persons aboard a commercial vessel that is not eligible for a scup moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a scup moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in § 648.122.

    (c) Scup harvested by vessels subject to the possession limit with more than one person aboard may be pooled in one or more containers. Compliance with the possession limit will be determined by dividing the number of scup on board by the number of persons aboard other than the captain and crew. If there is a violation of the possession limit on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner and operator.

    5. In § 648.145, paragraphs (a) and (c) are revised to read as follows:
    § 648.145 Black sea bass possession limit.

    (a) During the recreational fishing season specified at § 648.146, no person shall possess more than 15 black sea bass in, or harvested from, per trip the EEZ unless that person is the owner or operator of a fishing vessel issued a black sea bass moratorium permit, or is issued a black sea bass dealer permit. Persons aboard a commercial vessel that is not eligible for a black sea bass moratorium permit may not retain more than 15 black sea bass during the recreational fishing season specified at § 648.146. The owner, operator, and crew of a charter or party boat issued a black sea bass moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in § 648.142.

    (c) Black sea bass harvested by vessels subject to the possession limit with more than one person aboard may be pooled in one or more containers. Compliance with the possession limit will be determined by dividing the number of black sea bass on board by the number of persons aboard, other than the captain and the crew. If there is a violation of the possession limit on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner and operator of the vessel.

    6. Section 648.146 is revised to read as follows:
    § 648.146 Black sea bass recreational fishing season.

    Vessels that are not eligible for a moratorium permit under § 648.4(a)(7), and fishermen subject to the possession limit specified in § 648.145(a), may only possess black sea bass from May 15 through September 21, and October 22 through December 31, unless this time period is adjusted pursuant to the procedures in § 648.142.

    [FR Doc. 2015-15086 Filed 6-18-15; 8:45 am] BILLING CODE 3510-22-P
    80 118 Friday, June 19, 2015 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0909; Directorate Identifier 96-ANE-24-AD] RIN 2120-AA64 Airworthiness Directives; AlliedSignal Inc. and Rajay Inc. Oil Scavenge Pumps AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Proposed rule; withdrawal.

    SUMMARY:

    The FAA is withdrawing a notice of proposed rulemaking (NPRM). The NPRM proposed a new airworthiness directive (AD) that had applied to AlliedSignal oil scavenge pumps, part numbers (P/Ns) 101633-01 and -02 and Rajay Inc. oil scavenge pumps, P/Ns 1025-1 and -2 installed on Continental Motors, Inc. (CMI) IO-470 and TSIO-520 reciprocating engines and on Lycoming Engines, Inc., (Lycoming) IO-360, IO-540, and O-360 reciprocating engines. We have found no service difficulties with these model oil scavenge pumps when installed on the affected engines. Accordingly, we withdraw the proposed rule.

    DATES:

    As of June 19, 2015, the proposed rule published February 20, 1997 at 62 FR 7730 is withdrawn.

    FOR FURTHER INFORMATION CONTACT:

    Richard McCauley, Aerospace Engineer, Seattle Aircraft Certification Office, FAA, Transport Directorate, 1601 Lind Avenue SW., Renton, WA 98055-4056; phone: 425-917-6502; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The FAA proposed to amend 14 CFR part 39 with a proposed AD (62 FR 7730, February 20, 1997). The proposed AD had applied to AlliedSignal oil scavenge pumps,P/Ns 101633-01 and -02 and Rajay Inc. oil scavenge pumps, P/Ns 1025-1 and -2 installed on CMI IO-470 and TSIO-520 reciprocating engines and on Lycoming IO-360, IO-540, and O-360 reciprocating engines. The NPRM proposed to require initial and repetitive inspections of the oil scavenge pump for the security of the snap ring installation, snap ring and washer wear, and shaft groove wear, and their replacement, if necessary, with serviceable parts. The proposed action was prompted by reports of severe wear on the end plate of the oil scavenge pump. The proposed actions were intended to prevent oil scavenge pump snap ring failure causing severe wear on the pump end plate, which could result in loss of engine oil and subsequent engine shutdown.

    Since we issued the NPRM (62 FR 7730, February 20, 1997), additional information became available after the public comment period closed on April 21, 1997.

    Upon further consideration, we hereby withdraw the proposed rule for the following reason:

    • We reviewed service difficulty reports, AD databases, and airplane manufacturer's data and found no unsafe condition in the last 19 years of service history associated with these oil scavenge pumps installed on the affected engines.

    Withdrawal of the NPRM (62 FR 7730, February 20, 1997) constitutes only such action, and does not preclude the agency from issuing another notice in the future, nor does it commit the agency to any course of action in the future.

    Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule. Therefore, Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979) do not cover this withdrawal.

    List of Subjects in 14 CFR Part 39

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

    The Withdrawal

    Accordingly, the notice of proposed rulemaking, Docket No. FAA-2015-0909; Directorate Identifier 96-ANE-24-AD, published in the Federal Register on February 20, 1997 (62 FR 7730), is withdrawn.

    Issued in Burlington, Massachusetts, on June 10, 2015. Ann C. Mollica, Acting Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2015-14993 Filed 6-18-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0486; Directorate Identifier 2015-NE-07-AD] RIN 2120-AA64 Airworthiness Directives; Pratt & Whitney Canada Corp. Turboshaft Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Pratt & Whitney Canada Corp. (P&WC) PT6B-37A turboshaft engines. This proposed AD was prompted by reports of incorrect engine torque for PT6B-37A engines. This proposed AD would require initial and repetitive inspections until replacement of the No. 10 bearing, and eventual replacement of the No. 9 bearing, both located in the engine reduction gearbox (RGB) assembly. We are proposing this AD to prevent axial migration of the No. 10 bearing in the engine RGB assembly, which could lead to engine overtorque, failure of the engine, in-flight shutdown, and loss of the rotorcraft.

    DATES:

    We must receive comments on this proposed AD by August 18, 2015.

    ADDRESSES:

    You may send comments by any of the following methods:

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

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: 202-493-2251.

    For service information identified in this proposed AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; phone: 800-268-8000; fax: 450-647-2888; Web site: www.pwc.ca. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0486; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Barbara Caufield, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7146; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-0486; Directorate Identifier 2015-NE-07-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    The Transport Canada Civil Aviation, which is the aviation authority for Canada, has issued Canada AD CF-2015-01, dated January 20, 2015 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

    Five incidences of incorrect engine torque indication have been reported for PT6B-37A engine installations on AW119MKII helicopters. A lower than actual engine torque indication due to a faulty indication system, particularly on a helicopter being operated at max allowable torque (90 to 110%) range, may result in undetected over-torque condition.

    Repeated over-torque conditions that are undetected and consequently are not corrected in accordance with conditional inspection requirements of original equipment manufacturer (OEM) Instructions for Continued Airworthiness (ICAs), may have a negative impact on the operational safety of the aircraft. Investigation by P&WC has determined the root cause of the subject torque indication anomaly to be the axial migration of part number (P/N) 3310433-03 bearings at the engine torque sensing gear location.

    The axial migration of the No. 10 bearing is caused by non-optimal bearing internal clearance. This migration may cause an erroneous torque reading, possibly leading to engine overtorque and engine failure. We are also requiring replacement of the No. 9 bearing since it may also migrate, has the same part number as a No. 10 bearing, and could be installed in the same location as a No. 10 bearing.

    You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0486.

    Related Service Information Under 1 CFR Part 51

    P&WC has issued Service Bulletin (SB) No. PT6B-72-39095, Revision No. 3, dated December 29, 2014. The service information describes procedures for inspecting affected bearings. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    Other Related Service Information

    P&WC has also issued SB No. PT6B-72-39092, Revision No. 4, dated December 29, 2014. The service information describes procedures for removing affected bearings.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of Canada, and is approved for operation in the United States. Pursuant to our bilateral agreement with Canada, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by Transport Canada Civil Aviation and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require initial and repetitive inspections until replacement of the No. 10 bearing, as well as eventual replacement of the No. 9 bearing, in the engine RGB assembly.

    Costs of Compliance

    We estimate that this proposed AD affects 83 engines installed on rotorcraft of U.S. registry. We estimate that it would take about 3 hours per engine to perform the initial and repetitive inspections to comply with this proposed AD. We also estimate that it would take about 1 hour per engine to replace the affected bearings. The average labor rate is $85 per hour. Required parts cost about $49,800 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $4,161,620.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Pratt & Whitney Canada Corp.: Docket No. FAA-2015-0486; Directorate Identifier 2015-NE-07-AD. (a) Comments Due Date

    We must receive comments by August 18, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Pratt & Whitney Canada Corp. (P&WC) PT6B-37A turboshaft engines with engine serial numbers identified in Table 1 of paragraph 4, Appendix, in P&WC Service Bulletin (SB) No. PT6B-72-39095, Revision No. 3, dated December 29, 2014.

    (d) Reason

    This AD was prompted by reports of incorrect engine torque for PT6B-37A turboshaft engines. We are issuing this AD to prevent axial migration of the No. 10 bearing in the engine reduction gearbox (RGB) assembly, which could lead to engine overtorque, failure of the engine, in-flight shutdown, and loss of the rotorcraft.

    (e) Actions and Compliance

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

    (1) Initial Inspection

    (i) Within 50 flight hours (FHs) time in service after the effective date of this AD, inspect the No. 10 bearing, part number(P/N) 3310433-03, in the RGB assembly for axial movement. Use paragraphs 3.A. to 3.C. in the Accomplishment Instructions in P&WC SB No. PT6B-72-39095, Revision No. 3, dated December 29, 2014, to do the inspection. If the bearing fails the inspection, replace the No. 9 and No. 10 bearings before further flight.

    (2) Repetitive Inspection

    (i) For engines with 500 FHs or less total time since new (TSN), repeat the inspection required by paragraph (e)(1) of this AD every 100 FHs time since last inspection (TSLI) until 500 hours total TSN, and, thereafter, every 200 FHs TSLI until removal.

    (ii) For engines with more than 500 FHs total TSN perform the inspection required by paragraph (e)(1) to this AD within 200 FHs TSLI, and, thereafter, every 200 FHs TSLI until removal.

    (3) Removal and Replacement of Affected Bearings

    (i) For engine serial numbers (S/Ns) PCE-PU0192, PU0193, PU0201, PU0208, PU0209, PU0212, PU0213, PU0214, PU0216, PU0219, and PU0220, remove the No. 9 and No. 10 bearings, P/N 3310433-03, within 450 FHs or 42 months after the effective date of this AD, whichever occurs first, and replace with parts eligible for installation.

    (ii) For all engine S/Ns identified in Applicability paragraph (c) of this AD, other than those listed in paragraph (e)(3)(i) of this AD, remove the No. 9 and No. 10 bearings, P/N 3310433-03, and replace with parts eligible for installation within 42 months after the effective date of this AD.

    (iii) Replacement of the No. 9 and No. 10 bearing, P/N 3310433-03, with the No. 9 and No. 10 bearing, P/N 3310233-03 or P/N 3310533-03, is terminating action for this AD.

    (f) Reporting Requirements

    You do not have to contact your Local Field Service Representative as discussed in paragraph 3.C.(3) of P&WC SB No. PT6B-72-39095, Revision No. 3, dated December 29, 2014.

    (g) Credit for Previous Action

    If you previously replaced the No. 9 and No. 10 bearings in accordance with the instructions contained in P&WC SB No. PT6B-72-39092, Revision No. 2, dated August 8, 2014, or earlier revisions, then you have complied with this AD.

    (h) Alternative Methods of Compliance (AMOCs)

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

    (i) Related Information

    (1) For more information about this AD, contact Barbara Caufield, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7146; fax: 781-238-7199; email: [email protected]

    (2) Refer to MCAI Transport Canada AD CF-2015-01, dated January 20, 2015, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2015-0486.

    (3) P&WC SB No. PT6B-72-39092, Revision No. 4, dated December 29, 2014, and SB No. PT6B-72-39095, Revision No. 3, dated December 29, 2014, can be obtained from P&WC using the contact information in paragraph (i)(4) of this proposed AD.

    (4) For service information identified in this proposed AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; phone: 800-268-8000; fax: 450-647-2888; Internet: www.pwc.ca.

    (5) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

    Issued in Burlington, Massachusetts, on June 10, 2015. Ann C. Mollica, Acting Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service.
    [FR Doc. 2015-14986 Filed 6-18-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-102648-15] RIN 1545-BM66 Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014 AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking, notice of proposed rulemaking by cross-reference to temporary regulations, and notice of public hearing.

    SUMMARY:

    This document contains proposed regulations relating to multiemployer pension plans that are projected to have insufficient funds, at some point in the future, to pay the full benefits to which individuals will be entitled under the plans (referred to as plans in “critical and declining status”). The Multiemployer Pension Reform Act of 2014 (“MPRA”) amended the Internal Revenue Code to incorporate suspension of benefits provisions that permit these multiemployer plans to reduce pension benefits payable to participants and beneficiaries if certain conditions are satisfied. MPRA requires the Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation and the Secretary of Labor, to approve or deny applications by these plans to reduce benefits. As required by MPRA, these proposed regulations, together with temporary regulations being published at the same time, provide guidance implementing these statutory provisions. These proposed regulations would affect active, retired, and deferred vested participants and beneficiaries of multiemployer plans that are in critical and declining status as well as employers contributing to, and sponsors and administrators of, those plans.

    DATES:

    Comments must be received by August 18, 2015. Outlines of topics to be discussed at the public hearing scheduled for September 10, 2015 must be received by August 18, 2015.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-102648-15), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-102648-15), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-102648-15). The public hearing will be held in the Amphitheater of the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave. NW., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the regulations, the Department of the Treasury MPRA guidance information line at (202) 622-1559; concerning submission of comments or the hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION: Paperwork Reduction Act

    The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).

    The collection of information in the paragraphs of these proposed regulations that cross-reference the temporary regulations that are being published elsewhere in this issue of the Federal Register is required for a multiemployer defined benefit plan in critical and declining status to satisfy the criteria for approval of an application for a suspension of benefits, including providing notice of the application to specified individuals (containing an individualized estimate of the size of the benefit suspension) and other interested parties. The collection is also required for a plan sponsor to obtain approval of the ballot for the vote on the suspension of benefits that follows approval of the application.

    The collection of information in the paragraphs of these proposed regulations that do not cross-reference the temporary regulations is required for a multiemployer defined benefit plan in critical and declining status to maintain an annual written record of its determinations that all reasonable measures to avoid insolvency have been taken and that the plan is not projected to avoid insolvency without a suspension of benefits.

    Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by August 18, 2015. Comments are specifically requested concerning:

    Whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility;

    The accuracy of the estimated burden associated with the proposed collection of information;

    How the quality, utility, and clarity of the information to be collected may be enhanced;

    How the burden of complying with the proposed collections of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and

    Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information.

    For the paragraphs of the proposed regulations that cross-reference the temporary regulations:

    Estimated total average annual reporting or recordkeeping burden: 13,888 hours.

    Estimated average annual burden per recordkeeper: 496 hours.

    Estimated number of recordkeepers: 28.

    For the paragraphs of the proposed regulations that do not cross-reference the temporary regulations:

    Estimated total average annual reporting or recordkeeping burden: 140 hours.

    Estimated average annual burden per recordkeeper: 5 hours.

    Estimated number of recordkeepers: 28.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

    Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

    Background

    Section 432(e)(9) 1 of the Internal Revenue Code (Code) permits the plan sponsor of a multiemployer plan that is projected to have insufficient funds, at some point in the future, to pay the full benefits to which individuals will be entitled under the plan (referred to as a plan in “critical and declining status”) to reduce the pension benefits payable to participants and beneficiaries under the plan if certain conditions are satisfied (referred to as a “suspension of benefits”). MPRA requires the Secretary of the Treasury, in consultation with the Pension Benefit Guaranty Corporation (PBGC) and the Secretary of Labor (generally referred to in this preamble as the Treasury Department, PBGC, and Labor Department, respectively), to issue appropriate guidance to implement the provisions of section 432(e)(9). This document contains proposed regulations under section 432(e)(9) that, together with temporary regulations that are being published elsewhere in this issue of the Federal Register and a revenue procedure being published in the Internal Revenue Bulletin, Rev. Proc. 2015-34, implement section 432(e)(9), as required by the statute. The Treasury Department consulted with the PBGC and the Labor Department on these proposed regulations.

    1 Section 432(e)(9) was added to the Internal Revenue Code by the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780 (2006)) (PPA '06) and amended by the Multiemployer Pension Reform Act of 2014, Division O of the Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235 (128 Stat. 2130 (2014)) (MPRA).

    The temporary regulations, which are applicable immediately, provide sufficient guidance to enable a plan sponsor that wishes to apply for approval of a suspension of benefits to prepare and submit such an application, and to enable the Department of the Treasury to begin the processing of such an application. The temporary regulations provide general guidance regarding section 432(e)(9), including guidance regarding the meaning of the term “suspension of benefits,” the general conditions for a suspension of benefits, and the implementation of a suspension after a participant vote. This notice of proposed rulemaking requests comments on the provisions of the temporary regulations, and the provisions of the temporary regulations and proposed regulations are expected to be integrated and issued as a single set of final regulations with any changes that are made following consideration of the comments.

    The proposed regulations included in this document are not applicable immediately. The proposed regulations provide additional guidance regarding section 432(e)(9), including guidance relating to the standards that will be applied in reviewing an application for suspension of benefits and the statutory limitations on a suspension of benefits. For further background on the statutory provisions that these proposed regulations and the temporary regulations that are incorporated by cross-reference into these proposed regulations are designed to implement, see the preamble to the temporary regulations in the Rules and Regulations section of this issue of the Federal Register.

    The regulations implementing the statutory suspension of benefits provisions have been divided, as described, into proposed regulations and temporary regulations in order to balance the interest in considering public comments on rules before they apply with the evident statutory intent, reflected in MPRA, to implement the statutory provisions without undue delay. Although the Treasury Department has issued proposed and temporary regulations under section 432(e)(9), it is expected that no application proposing a benefit suspension will be approved prior to the issuance of final regulations. If a plan sponsor chooses to submit an application for approval of a proposed benefit suspension in accordance with the proposed and temporary regulations before the issuance of final regulations, then the plan sponsor may need to revise the proposed suspension (and potentially the related notices to plan participants) or supplement the application to take into account any differences in the requirements relating to suspensions of benefits that might be included in the final regulations.

    Rev. Proc. 2015-34 prescribes the specifics of the application process for approval of a proposed benefit suspension. The revenue procedure also provides a model notice that a plan sponsor proposing a benefit suspension may use to satisfy the statutory notice requirement.

    Conditions for Suspensions

    As a condition for suspension of benefits, the statute requires a plan sponsor to determine, in a written record to be maintained throughout the period of the benefit suspension, that although all reasonable measures to avoid insolvency have been taken (and continue to be taken during the period of the benefit suspension), the plan is still projected to become insolvent unless benefits are suspended. In making this determination, the plan sponsor may take into account factors including a specified list of 10 statutory factors.2 See section 432(e)(9)(C)(ii).

    2 These 10 factors are current and past contribution levels; levels of benefit accruals (including prior reductions in the rate of benefit accruals); prior adjustable benefit reductions and suspensions of benefits; the impact on plan solvency of the subsidies and ancillary benefits available to active participants; compensation levels of active participants relative to employees in the participants' industry generally; competitive and other economic factors facing contributing employers; the impact of benefit and contribution levels on retaining active participants and bargaining groups under the plan; the impact of past and anticipated contribution increases under the plan on employer attrition and retention levels; and measures undertaken by the plan sponsor to retain or attract contributing employers.

    Limitations on Suspensions

    Section 432(e)(9)(D) contains limitations on the benefits that may be suspended, some of which apply to plan participants and beneficiaries on an individual basis and some of which apply on an aggregate basis. Under the statute, an individual's monthly benefit may not be reduced below 110 percent of the monthly benefit that is guaranteed by the PBGC under section 4022A of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829 (1974)), as amended (ERISA) on the date of the suspension. In addition, no benefits based on disability (as defined under the plan) may be suspended.

    In the case of a participant or beneficiary who has attained age 75 as of the effective date of a suspension, the statute provides that the suspension may not exceed the applicable percentage of the individual's maximum suspendable benefit (the age-based limitation). The maximum suspendable benefit is the maximum amount of an individual's benefit that would be suspended without regard to the age-based limitation. The applicable percentage is a percentage that is determined by dividing (i) the number of months during the period that begins with the month after the month in which the suspension is effective and ends with the month in which that participant or beneficiary attains the age of 80 by (ii) 60 months.

    Section 432(e)(9)(D) also requires the aggregate benefit suspensions (considered, if applicable, in connection with a plan partition under section 4233 of ERISA (partition)) to be reasonably estimated to achieve, but not materially exceed, the level that is needed to avoid insolvency.

    Under the statute, any suspension of benefits must be equitably distributed across the participant and beneficiary population, taking into account factors that may include one or more of a list of 11 statutory factors.3 See section 432(e)(9)(D)(vi). Finally, with regard to a suspension of benefits that is made in combination with a plan partition, the suspension may not occur before the effective date of the partition.

    3 These 11 factors are age and life expectancy; length of time in pay status; amount of benefit; type of benefit; extent of a subsidized benefit; extent of post-retirement benefit increases; history of benefit increases and reductions; years to retirement for active employees; any discrepancies between active employees and retirees; extent to which participants are reasonably likely to withdraw support for the plan, resulting in accelerated employer withdrawal; and the extent to which the benefits are attributed to service with an employer that failed to pay its withdrawal liability.

    Benefit Improvements

    Section 432(e)(9)(E) sets forth rules relating to benefit improvements made while a suspension of benefits is in effect. Under this provision, a benefit improvement is defined as a resumption of suspended benefits, an increase in benefits, an increase in the rate at which benefits accrue, or an increase in the rate at which benefits become nonforfeitable under the plan.

    The statute also provides that, while a suspension of benefits is in effect, a plan sponsor generally has discretion to provide benefit improvements. However, a sponsor may not increase plan liabilities by reason of any benefit improvement for any participant or beneficiary who is not in pay status (in other words, those who are not yet receiving benefits, such as active employees or deferred vested employees) unless (1) this benefit improvement is accompanied by an equitable distribution of benefit improvements for those who have begun to receive benefits (typically, retirees), and (2) the plan actuary certifies that, after taking those benefit improvements into account, the plan is projected to avoid insolvency indefinitely.4 Whether an individual is in pay status for this purpose is generally based on whether the individual's benefits began before the first day of the plan year for which the benefit improvement took effect.

    4 Avoidance of insolvency is determined by reference to section 418E under which a plan is insolvent if it is unable to pay scheduled benefits for a year. Pursuant to section 432(e)(9)(E)(iv), this restriction does not apply to certain benefit improvements if the Treasury Department determines either that the benefit improvements are reasonable and provide for only de minimis increases in plan liabilities or that the benefit improvements are required as a condition of qualification or to comply with other applicable law.

    In order for benefit improvements to be equitably distributed, the projected value of the total liabilities attributable to benefit improvements for participants and beneficiaries who are not in pay status may not exceed the projected value of the liabilities attributable to benefit improvements for participants and beneficiaries who are in pay status. See section 432(e)(9)(E)(ii). The plan sponsor must equitably distribute any increase in total liabilities attributable to the benefit improvements among the participants and beneficiaries who are in pay status, taking into account the factors relevant to the equitable distribution of benefit suspensions among participants and beneficiaries (described in section 432(e)(9)(D)(vi)) and the extent to which their benefits were suspended.

    The statute allows a plan sponsor to increase plan liabilities through a resumption of benefits for participants and beneficiaries in pay status without providing any benefit improvements for those who are not yet in pay status, but only if it equitably distributes the value of resumed benefits among participants and beneficiaries in pay status, taking into account the factors relevant to the equitable distribution of benefit suspensions.

    The restrictions on benefit improvements in section 432(e)(9)(E) apply in addition to any other applicable limitations on increases in benefits that apply to a plan, except with respect to resumptions of suspended benefits only for participants and beneficiaries in pay status (described in the preceding sentence).

    Suspension Applications

    Section 432(e)(9)(G) describes the process for approval or rejection of a plan sponsor's application for a suspension of benefits. Under the statute, the Treasury Department, in consultation with the PBGC and the Labor Department, must approve an application upon finding that the plan is eligible for the suspensions and has satisfied the criteria of sections 432(e)(9)(C), (D), (E), and (F). In evaluating whether a plan sponsor has met the criteria in section 432(e)(9)(C)(ii) (a plan sponsor's determination that, although all reasonable measures have been taken, the plan will become insolvent if benefits are not suspended), the plan sponsor's consideration of factors under that clause must be reviewed. The statute also requires that the plan sponsor's determinations in an application for a suspension of benefits be accepted unless they are clearly erroneous.

    Participant Vote on Proposed Benefit Reduction

    If a suspension application is approved, the proposed suspension then goes to a vote of plan participants and beneficiaries. See section 432(e)(9)(H). The vote will be administered by the Treasury Department, in consultation with the PBGC and the Labor Department, within 30 days after approval of the suspension application. The plan sponsor is required to provide a ballot for a vote (subject to approval by the Treasury Department, in consultation with the PBGC and the Labor Department). The statute specifies information that the ballot must include.5 If a majority of plan participants and beneficiaries do not vote to reject the suspension, the statute requires the Treasury Department to issue a final authorization to suspend benefits within seven days after the vote.

    5 This information includes a statement from the plan sponsor in support of the suspension; a statement in opposition to the suspension compiled from comments received in response to the Federal Register notice issued by Treasury within 30 days of receiving the suspension application; a statement that the suspension has been approved by the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor; a statement that the plan sponsor has determined that the plan will become insolvent unless the suspension takes effect; a statement that insolvency of the plan could result in benefits lower than benefits paid under the suspension; and a statement that insolvency of the PBGC would result in benefits lower than benefits otherwise paid in the case of plan insolvency.

    Explanation of Provisions I. Overview

    These proposed regulations provide guidance on certain requirements under section 432(e)(9) regarding suspension of benefits for multiemployer defined benefit plans in critical and declining status. The proposed regulations cross-reference certain requirements that are addressed in the temporary regulations issued in the Rules and Regulations section of this issue of the Federal Register. In addition to the proposed and temporary regulations, the procedural requirements for submitting an application to suspend benefits, as well as a model notice, are provided in Rev. Proc. 2015-34.

    II. General Rules on Suspension of Benefits

    Under the temporary regulations, once a plan is amended to suspend benefits, a plan may pay or continue to pay a reduced level of benefits pursuant to the suspension only if the terms of the plan are consistent with the requirements of section 432(e)(9) and the regulations. The proposed regulations would provide that a plan's terms are consistent with the requirements of section 432(e)(9) even if they provide that, instead of a suspension of benefits occurring in full on a specified effective date, the amount of a suspension will phase in or otherwise change in a definite, pre-determined manner as of a specified future effective date or dates. However, the proposed regulations would provide that a plan's terms are inconsistent with the statutory requirements if they provide that the amount of a suspension will change contingent upon the occurrence of any other specified future event, condition, or development. For example, a plan is not permitted to provide that an additional or larger suspension of benefits is triggered if the plan's funded status deteriorates. Similarly, a plan is not permitted to provide that, contingent upon a specified future event, condition, or development, a suspension of benefits will be automatically reduced (except upon a failure to satisfy the annual requirement, described in the proposed regulations, that the plan sponsor determine that the plan is projected to become insolvent unless benefits are suspended).

    In the case of an individual who has commenced benefits, the proposed regulations provide that the effective date of a suspension of benefits is the first date as of which a portion of the individual's benefits are not paid as a result of the suspension. In the case of an individual who has not yet commenced benefits, the effective date of a suspension of benefits is the first date as of which the participant's accrued benefit is reduced as a result of the suspension. The effective date of a suspension may not precede the date on which a final authorization to suspend benefits is issued.

    If a suspension of benefits provides for more than one reduction in benefits over time, such that benefits are scheduled to be reduced by an additional amount after benefits are first reduced pursuant to the suspension, then each date as of which benefits are reduced is treated as a separate effective date of the suspension, which would require, for example, that the age-based limitation be separately applied as of each effective date. However, if the effective date of the final scheduled reduction in benefits in a series of reductions pursuant to a suspension is less than three years after the effective date of the first reduction, the effective date of the first reduction will be treated as the effective date of all subsequent reductions pursuant to that suspension. For example, if a suspension provides that benefits will be reduced by a specified percentage effective January 1, 2017, by an additional percentage effective January 1, 2018, and by an additional percentage effective January 1, 2019, with no subsequent changes scheduled, it would meet the three-year condition to treat January 1, 2017 as the effective date for all three reductions. However, if the suspension provided for a further reduction effective January 1, 2020, the suspension would not be treated as satisfying the three-year condition and therefore would be treated under the proposed regulations as having four separate effective dates.

    III. Conditions for Suspensions

    The regulations provide that a plan may not suspend benefits unless the plan sponsor makes initial and annual determinations that the plan is projected to become insolvent unless benefits are suspended, although all reasonable measures to avoid insolvency have been taken. These determinations are based on the nonexclusive list of factors described in section 432(e)(9)(C)(ii).

    Under the proposed regulations, a plan sponsor satisfies the annual-plan-sponsor determinations requirement for a plan year only if the plan sponsor determines, no later than the last day of the plan year, that (1) all reasonable measures to avoid insolvency have been taken, and (2) the plan is projected to become insolvent unless the suspension of benefits continues (or another suspension of benefits under section 432(e)(9) is implemented) for the plan. For this purpose, the projection of the plan's insolvency must be made using the standards that apply for purposes of determining whether a suspension is sufficient to avoid insolvency and not materially in excess of the level needed to avoid insolvency that are described in paragraph IV.B.1 of this preamble.

    If there is favorable actuarial experience so that the plan could avoid insolvency even if the benefit suspension were reduced (but not eliminated), the plan sponsor may wish to adopt a benefit increase that partially restores suspended benefits in order to share that favorable experience with the participants. The statute contemplates this circumstance by providing in section 432(e)(9)(E) the requirements for such a partial restoration of suspended benefits and for other benefit improvements. Moreover, if favorable actuarial experience would allow the plan to avoid insolvency if the benefit suspension were eliminated entirely, the proposed regulations would require the plan sponsor to eliminate the suspension.

    The proposed regulations provide that, in order to satisfy the annual-plan-sponsor determinations requirement, the plan sponsor must maintain a written record of its annual determinations. The written record must be included in an update to the rehabilitation plan, whether or not there is otherwise an update for that year or, if the plan is no longer in critical status, in the documents under which the plain is maintained (so that it is available to plan participants and beneficiaries). The plan sponsor's consideration of factors required for its determination of whether all reasonable measures have been taken must be reflected in that determination.

    If a plan sponsor fails to satisfy the annual-plan-sponsor determinations requirement for a plan year (including maintaining the written record), then the suspension of benefits expires as of the first day of the next plan year. For example, if in a plan year the plan sponsor is unable to determine that all reasonable measures to avoid insolvency have been taken, then the plan sponsor must take those additional reasonable measures before the end of the plan year in order to avoid the expiration of the suspension as of the first day of the next plan year.

    IV. Limitations on Suspensions

    The proposed and temporary regulations reflect the individual and aggregate limitations on a suspension of benefits under section 432(e)(9)(D).6 The temporary regulations provide that after applying the individual limitations, the overall size and distribution of the suspension is subject to the aggregate limitations.

    6 The temporary regulations refer to section 432(e)(9)(D)(vii) for additional rules applicable to certain plans.

    A. Individual Limitations 1. Guarantee-Based Limitation

    The temporary regulations provide that benefits may not be suspended below 110 percent of the monthly benefit payable to a participant, beneficiaries, or alternate payee that would be guaranteed by the PBGC under section 4022A of ERISA if the plan were to become insolvent as of the effective date of the suspension.

    The proposed regulations provide that under section 4022A of ERISA, the monthly benefit of a participant or beneficiary that would be guaranteed by the PBGC with respect to a plan if the plan were to become insolvent as of the effective date of the suspension is generally based on section 4022A(c)(1) of ERISA. Under section 4022A(c)(1) of ERISA, that guaranteed amount is a dollar amount multiplied by the participant's years and months of credited service as of the date as of which the guarantee is determined. The dollar amount is 100 percent of the accrual rate up to $11, plus 75 percent of the lesser of (1) $33, or (2) the accrual rate, if any, in excess of $11. The accrual rate is a participant's or beneficiary's monthly benefit (described in section 4022A(c)(2)(A) of ERISA) by the participant's years of credited service (described in section 4022A(c)(3) of ERISA) as of the effective date of the suspension.

    The proposed regulations provide a number of examples of how the PBGC guarantee is calculated. These examples reflect the interpretation of section 4022A of ERISA provided by the PBGC.

    In determining the participant's monthly benefit for purposes of the accrual rate, only nonforfeitable benefits (other than benefits that become nonforfeitable on account of plan termination) are taken into account, pursuant to section 4022A(a) of ERISA. The proposed regulations treat benefits that are forfeitable on the effective date of a suspension as nonforfeitable, provided that the participant is in covered employment on that date and would have a nonforfeitable right to those benefits upon completion of vesting service following that date. For example, if an active participant had only three out of five years necessary for the participant's benefit to become 100 percent vested under a plan as of the effective date of a suspension, the participant's accrued benefit will be treated as 100 percent vested as of that date.

    2. Disability-Based Limitation

    The temporary regulations incorporate the statutory requirement that benefits based on disability may not be suspended. For this purpose, disability is defined in accordance with the definition of that term in the plan. The proposed regulations would provide rules for implementing this limitation.

    The proposed regulations provide that benefits based on disability means the entire amount paid to a participant pursuant to the participant becoming disabled, regardless of whether a portion of that amount would have been paid if the participant had not become disabled. For example, assume that a participant with an accrued benefit of $1,000 per month, payable at age 65, becomes entitled under the plan to an early retirement benefit at age 55 on account of a disability (as defined in the plan). Under the plan, the participant (absent disability) would be entitled to a reduced early retirement benefit of $600 per month commencing at age 55, but the reduction for early retirement does not apply because the participant became entitled to a benefit on account of a disability. The participant's disability benefit payment of $1,000 per month commencing at age 55 is a benefit based on disability, even though the participant would have received a portion of these benefits at retirement regardless of the disability.

    The proposed regulations also provide that if a participant begins receiving an auxiliary or other temporary disability benefit and the sole reason the participant ceases receiving that benefit is commencement of retirement benefits, the benefit based on disability after commencement of retirement benefits is the lesser of (1) the periodic payment the participant was receiving immediately before the participant's retirement benefits commenced, or (2) the total periodic payments to the participant under the plan.

    For example, assume that a participant begins receiving a disability pension of $1,000 per month payable at age 55. When the participant reaches age 65, the participant's disability pension is discontinued and the participant elects to commence payment of the participant's accrued benefit in the form of an actuarially equivalent joint and survivor annuity payable in the amount of $850 per month. Before age 65, the participant's benefit based on disability is $1,000 per month. After age 65, the participant's benefit based on disability is $850 per month. (Alternatively, if the participant had elected to commence payment of the participant's accrued benefit in the form of a single life annuity payable in the amount of $1,000 per month, the participant's benefit based on disability after age 65 would be $1,000 per month.) A suspension of benefits is not permitted to apply to any portion of those benefits at any time.

    3. Age-Based Limitation

    The proposed regulations would provide that no suspension of benefits is permitted to apply to a participant, beneficiary, or alternate payee who has commenced receiving benefits as of the effective date of the suspension and has reached age 80 no later than the end of the month that includes the effective date of the suspension. For example, assume that a suspension of benefits has an effective date of December 1, 2017. If a retiree is 79 years old on December 1, 2017, and turns 80 on December 15, 2017, a suspension of benefits is not permitted to apply to the retiree's monthly benefit.

    In addition, no more than the applicable percentage of the maximum suspendable benefit may be suspended for a participant, beneficiary, or alternate payee who has commenced receiving benefits as of the effective date of the suspension and has reached age 75 by the end of the month that includes the effective date of the suspension.

    The maximum suspendable benefit is the portion of an individual's benefits that would be suspended without regard to the age-based limitation, after the application of the guarantee-based limitation and the disability-based limitation, described earlier in paragraphs IV.A.1 and IV.A.2 of this preamble.

    The applicable percentage is the percentage obtained by dividing: (1) The number of months during the period beginning with the month after the month in which the suspension of benefits is effective and ending with the month during which the participant or beneficiary attains the age of 80, by (2) 60.

    The proposed regulations explain how to apply the age-based limitation if benefits have not commenced to either a participant or beneficiary as of the effective date of the suspension. If the participant is alive on the effective date, the participant is treated as having commenced benefits on that date. If the participant is deceased on the effective date, the beneficiary is treated as having commenced benefits on that date.

    The age-based limitation applies to a suspension of benefits in which an alternate payee has an interest, whether or not the alternate payee has commenced benefits as of the effective date of the suspension. If the alternate payee's right to the suspended benefits derives from a qualified domestic relations order within the meaning of section 414(p)(1)(A) (QDRO) under which the alternate payee shares in each benefit payment but the participant retains the right to choose the time and form of payment with respect to the benefit to which the suspension applies (shared payment QDRO), the applicable percentage for the alternate payee is calculated by using the participant's age as of the effective date of the suspension. If the alternate payee's right to the suspended benefits derives from a QDRO under which the alternate payee has a separate right to receive a portion of the participant's retirement benefit to be paid at a time and in a form different from that chosen by the participant (separate interest QDRO), the applicable percentage for the alternate payee is calculated by substituting the alternate payee's age as of the effective date of the suspension for the participant's age.

    If the age-based limitation applies to a participant on the effective date of the suspension, then the age-based limitation also applies to the beneficiary of the participant, based on the age of the participant on the effective date of the suspension.

    B. Aggregate Limitations 1. Avoidance of Insolvency

    The proposed regulations reflect the requirement in section 432(e)(9)(D)(iv) that any suspension of benefits, in the aggregate (considered, if applicable, in combination with a partition of the plan), must be at a level that is reasonably estimated to enable the plan to avoid insolvency and not materially exceed the level that is necessary to enable the plan to avoid insolvency.

    A suspension of benefits (considered, if applicable, in combination with a partition of the plan) will satisfy the requirement that it is at a level that is reasonably estimated to enable the plan to avoid insolvency if: (1) For each plan year throughout an extended period beginning on the first day of the plan year that includes the effective date of the suspension, the plan's solvency ratio is projected on a deterministic basis to be at least 1.0; (2) based on stochastic projections reflecting variance in investment return, the probability that the plan will avoid insolvency throughout the extended period is more than 50 percent; and (3) unless the plan's projected funded percentage (within the meaning of section 432(j)(2)) at the end of the extended period using a deterministic projection exceeds 100 percent, then the projection shows that at all times during the last five plan years of that period, there is no projected decrease in either the plan's solvency ratio or its available resources (as defined in section 418E(b)(3)). In the case of a plan that is not large enough to be required to select a retiree representative, the determination of whether a benefit suspension (considered, if applicable, in combination with a plan partition) will satisfy the requirement that it is at a level that is reasonably estimated to enable the plan to avoid insolvency is permitted to be made without regard to clause (2).

    A plan's solvency ratio for a plan year means the ratio of the plan's available resources (as defined in section 418E(b)(3)) for the plan year to the scheduled benefit payments under the plan for the plan year. An extended period means a period of at least 30 plan years. However, in the case of a temporary suspension of benefits that is scheduled to cease as of a date that is more than 25 years after the effective date of the suspension, the extended period must be lengthened so that it ends no earlier than five plan years after the cessation of the suspension.

    Under the proposed regulations, a suspension of benefits will satisfy the requirement that the suspension be at a level that is reasonably estimated to not materially exceed the level necessary for the plan to avoid insolvency if an alternative, similar but smaller suspension of benefits, under which the dollar amount of the suspension for each participant and beneficiary were reduced by five percent, would not be sufficient to enable the plan to satisfy the requirement that the suspension be at a level that is reasonably estimated to enable the plan to avoid insolvency. In addition, if the PBGC issues an order partitioning the plan, then a suspension of benefits with respect to the plan will be deemed to satisfy this requirement. This test based on a five percent reduction of a suspension is roughly comparable to the common use in accounting standards of a five-percent threshold for materiality.

    The proposed regulations would require the actuarial projections used for purposes of these requirements to reflect the assumption that the suspension of benefits continues indefinitely (or, if the suspension expires on a specified date by its own terms, until that date). The actuarial assumptions and methods used for the actuarial projections must be reasonable in accordance with the rules of section 431(c)(3). The actuary's selection of assumptions about future covered employment and contribution levels (including contribution base units and average contribution rate) is permitted to be based on information provided by the plan sponsor, which must act in good faith in providing the information. In addition, to the extent that the actuarial assumptions used for the projections differ from those used to certify whether the plan is in critical and declining status pursuant to section 432(b)(3)(B)(iv), a justification for that difference generally must be provided.

    The cash flow projections must be based on the fair market value of assets as of the end of the most recent calendar quarter, projected benefit payments that are consistent with the projected benefit payments under the most recent actuarial valuation, and appropriate adjustments to projected benefit payments to include benefits for new hires who are reflected in the projected contribution amounts. The projected cash flows relating to contributions, withdrawal liability payments, and benefit payments must also be adjusted to reflect significant events that occurred after the most recent actuarial valuation. Significant events include: (1) A plan merger or transfer; (2) the withdrawal or the addition of employers that changed projected cash flows relating to contributions, withdrawal liability payments, or benefit payments by more than five percent; (3) a plan amendment, a change in a collective bargaining agreement, or a change in a rehabilitation plan that changed projected cash flows relating to contributions, withdrawal liability, or benefit payments by more than five percent; or (4) any other event or trend that resulted in a material change in the projected cash flows.

    The application for suspension must include a disclosure of the total contributions, total contribution base units and average contribution rate, withdrawal liability payments, and the rate of return on plan assets for each of the 10 plan years preceding the plan year in which the application is submitted. In addition, the application must include deterministic projections of the plan's solvency ratio over the extended period using two alternative assumptions that the plan's future rate of return was lower than the assumed rate of return by (1) one percentage point and (2) two percentage points.

    The application must include deterministic projections of the plan's solvency ratio over the extended period using two alternative assumptions for the future contribution base units. These alternatives are that the future contribution base units (1) continue under the same trend as the plan experienced over the past 10 years, and (2) continue under that 10-year trend reduced by one percentage point.

    The application must include an illustration, prepared on a deterministic basis, of the projected value of plan assets, the accrued liability of the plan (calculated using the unit credit funding method), and the funded percentage for each year in the extended period.

    2. Equitable Distribution

    The proposed regulations would require any suspension of benefits to be equitably distributed across the participant and beneficiary population. If a suspension of benefits applies differently to different categories or groups of participants and beneficiaries, then the suspension of benefits is equitably distributed across the participant and beneficiary population only if under the suspension: (1) Within each such category or group, the individuals are treated consistently; (2) any difference in treatment among the different categories or groups is based on relevant factors reasonably selected by the plan sponsor; and (3) any such difference in treatment is based on a reasonable application of the relevant factors.

    The proposed regulations contain examples illustrating the equitable distribution rules.

    V. Benefit Improvements

    The proposed regulations set forth rules for the application of section 432(e)(9)(E), regarding benefit improvements. The proposed regulations provide that a plan satisfies the criteria in section 432(e)(9)(E) only if, during the period that any suspension of benefits remains in effect, the plan sponsor does not implement any benefit improvement except as provided in the proposed regulations.

    Section 432(e)(9)(E)(vi) and the proposed regulations define the term benefit improvement to mean, with respect to a plan, a resumption of suspended benefits, an increase in benefits, an increase in the rate at which benefits accrue, or an increase in the rate at which benefits become nonforfeitable under the plan. In the case of a suspension of benefits that expires as of a date that is specified in the original plan amendment providing for the suspension, the resumption of benefits solely from the expiration of that period is not treated as a benefit improvement.

    A. Limitations on Benefit Improvements for Those Not in Pay Status

    The proposed regulations provide that, during the period any suspension of benefits under a plan remains in effect, the plan sponsor may not increase the liabilities of the plan by reason of any benefit improvement for any participant or beneficiary who was not in pay status for any plan year before the plan year for which the benefit improvement takes effect, unless several conditions are satisfied.

    One condition is that the present value of the total liabilities for a benefit improvement for participants and beneficiaries whose benefit commencement dates occurred before the first day of the plan year for which the benefit improvement takes effect is not less than the present value of the total liabilities for a benefit improvement for participants and beneficiaries who were not in pay status by that date. For this purpose, present value is the present value as of the first day of the plan year in which the benefit improvement is proposed to take effect, using actuarial assumptions in accordance with section 431.

    The plan sponsor must also equitably distribute the benefit improvement among participants and beneficiaries whose benefit commencement dates occurred before the first day of the plan year in which the benefit improvement is proposed to take effect. The evaluation of whether a benefit improvement is equitably distributed must take into account the factors relevant to whether a suspension of benefits is equitably distributed, described in paragraph IV.B.2 of this preamble, and the extent to which the benefits of the participants and beneficiaries were suspended.

    In addition, the plan actuary must certify that, after taking into account the benefit improvement, the plan is projected to avoid insolvency indefinitely. This certification must be made using the standards that apply for purposes of determining whether a suspension is sufficient to avoid insolvency that are described in paragraph IV.B.1 of this preamble.

    These limitations do not apply to a resumption of suspended benefits or plan amendment that increases liabilities with respect to participants and beneficiaries not in pay status by the first day of the plan year in which the benefit improvement took effect that: (1) The Treasury Department, in consultation with the PBGC and the Labor Department, determines to be reasonable and which provides for only de minimis increases in plan liabilities, or (2) is required as a condition of qualification under section 401 or to comply with other applicable law, as determined by the Treasury Department.

    B. Limitations on Benefit Improvements for Those in Pay Status

    Under the proposed regulations, the plan sponsor may increase liabilities of the plan by eliminating some or all of the suspension that applies solely to participants and beneficiaries in pay status at the time of the resumption, provided that the plan sponsor equitably distributes the value of those resumed benefits among participants and beneficiaries in pay status, taking into account factors relevant to whether a suspension of benefits is equitably distributed. Such a resumption of benefits is not subject to the limitations on a benefit improvement under section 432(f) (relating to restrictions on benefit increases for plans in critical status).

    C. Other Limitations on Benefit Increases

    The proposed regulations would provide that the limitations on benefit improvements generally apply in addition to other limitations on benefit increases that apply to a plan. Except for a resumption of suspended benefits described in paragraph V.B. of this preamble, the limitations on a benefit improvement are in addition to the limitations in section 432(f) and any other applicable limitations on increases in benefits imposed on a plan.

    VI. Notice of Proposed Suspension

    Section 432(e)(9)(F)(iii) states that notice must be provided in a form and manner prescribed in guidance and that notice may be provided in written, electronic, or other appropriate form to the extent such form is reasonably accessible to persons to whom the notice is required to be provided. The temporary regulations include rules implementing the statutory notice requirements in section 432(e)(9)(F). The proposed regulations would provide that notice must exclusively be provided in written or electronic form (that is, there is no other appropriate form).

    VII. Approval or Denial of an Application for Suspension of Benefits

    A plan sponsor cannot implement a suspension of benefits unless, among other things, its application for a proposed suspension of benefits is approved. The temporary regulations contain rules regarding the submission and review of an application, and related guidelines and procedures are set forth in Rev. Proc. 2015-34. The temporary regulations provide that a complete application will be deemed approved unless, within 225 days after a complete application is received, the Treasury Department notifies the plan sponsor that its application does not satisfy one or more of the requirements for approval. The proposed regulations would provide that, if necessary under the circumstances, the Treasury Department and the plan sponsor may mutually agree in writing to stay the 225-day period. Any such agreement would be expected to be used only in unusual circumstances.

    As required by section 432(e)(9)(G)(iv), the proposed regulations provide that in evaluating whether the plan sponsor has satisfied the condition (in section 432(e)(9)(C)(ii)) that it determine that all reasonable measures to avoid insolvency within the meaning of section 418E have been taken, the Treasury Department, in consultation with the PBGC and the Labor Department, will review the plan sponsor's consideration of each of the factors enumerated in section 432(e)(9)(C)(ii) and each other factor it took into account in making that determination. The proposed regulations, like the statute, do not require the plan sponsor to take any particular measure or measures to avoid insolvency but do require, in the aggregate, that the plan sponsor take all reasonable measures to avoid insolvency. In accordance with section 432(e)(9)(G)(v), the proposed regulations provide that, in evaluating the plan sponsor's application, the Treasury Department will accept the plan sponsor's determinations under section 432(e)(9)(C)(ii) unless the Treasury Department concludes, in consultation with the PBGC and the Labor Department, that the determinations were clearly erroneous. This statutory structure reflects the view that particular measures to avoid insolvency may be inappropriate for some plans and requires the Treasury Department to review the plan sponsor's consideration of the appropriateness of each of the statutory factors, but recognizes that the plan sponsor is generally in a better position than the Treasury Department to determine the most effective measures that a particular plan should take to avoid insolvency.

    The proposed regulations provide that an application to suspend benefits will not be approved unless the plan sponsor certifies that, if it receives final authorization to suspend benefits (described in paragraph VIII. of this preamble), chooses to implement the suspension, and adopts a plan amendment to implement the suspension, it will timely amend the plan to provide that (1) the suspension of benefits will cease as of the first day of the first plan year following the first plan year in which the plan sponsor fails to make the annual determinations in section 432(e)(9)(C)(ii); and (2) any future benefit improvement must satisfy the section 432(e)(9)(E) rules for benefit improvements.

    VIII. Participant Vote on Proposed Benefit Reduction

    Section 432(e)(9)(H)(ii) provides that if an application for a suspension of benefits is approved, then the Treasury Department, in consultation with the PBGC and the Labor Department, will administer a vote of all plan participants and all beneficiaries of deceased participants (eligible voters). Any suspension of benefits will take effect only after the vote and after a final authorization to suspend benefits. Many of the rules relating to the vote are set forth in the temporary regulations. However, both the temporary and the proposed regulations reserve, for later issuance, provisions on the administration of the vote.

    The proposed regulations would provide that if an application for suspension is approved, the plan sponsor must take reasonable steps to inform eligible voters about the proposed suspension and the vote. This includes all eligible voters who can be contacted by reasonable efforts pursuant to section 432(e)(9)(F). Anyone whom the plan sponsor has been able to locate through these means (or who has otherwise been located by the plan sponsor) must be sent a ballot.

    The proposed regulations would require the plan sponsor to provide a ballot for the vote 7 that includes the following:

    7 The ballot is subject to approval by the Treasury Department, in consultation with the PBGC and the Labor Department. See section 432(e)(9)(H) and § 1.432(e)(9)-1T(h).

    • A description of the proposed suspension and its effect, including the effect of the suspension on each category or group of individuals affected by the suspension and the extent to which they are affected;

    • A description of the factors considered by the plan sponsor in designing the benefit suspension, including but not limited to the factors in section 432(e)(9)(D)(vi);

    • A description of whether the suspension will remain in effect indefinitely or will expire by its own terms (and, if it will expire by its own terms, when that will occur);

    • A statement from the plan sponsor in support of the proposed suspension;

    • A statement in opposition to the proposed suspension compiled from comments received pursuant to the solicitation of comments in the Federal Register notice with respect to the application;

    • A statement that the proposed suspension has been approved by the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor;

    • A statement that the plan sponsor has determined that the plan will become insolvent unless the proposed suspension takes effect (including the year in which insolvency is projected to occur without a suspension of benefits), and an accompanying statement that this determination is subject to uncertainty;

    • A statement that insolvency of the plan could result in benefits lower than benefits paid under the proposed suspension and a description of the projected benefit payments in the event of plan insolvency;

    • A statement that insolvency of the PBGC would result in benefits lower than benefits otherwise paid in the case of plan insolvency;

    • A statement that the plan's actuary has certified that the plan is projected to avoid insolvency, taking into account the proposed suspension of benefits (and, if applicable, a proposed partition plan), and an accompanying statement that the actuary's projection is subject to uncertainty;

    • A statement that the suspension will go into effect unless a majority of eligible voters vote to reject the suspension and that, therefore, a failure to vote has the same effect on the outcome of the vote as a vote in favor of the suspension;

    • A copy of the individualized estimate that was provided as part of the earlier notice described in section 432(e)(9)(F) (or, if that individualized estimate is no longer accurate, a corrected version of that estimate); and

    • A description of the voting procedures, including the deadline for voting.

    A proposed suspension is generally permitted to be implemented unless rejected by a majority vote of all eligible voters. In determining whether a majority of all eligible voters have voted to reject the suspension under section 432(e)(9)(H)(ii), the proposed regulations would treat any eligible voters to whom ballots have not been provided (because the individuals could not be located) as voting to reject the suspension at the same rate (in other words, in the same percentage) as those to whom ballots have been provided.

    Proposed Effective Date

    These regulations are proposed to be effective on and after the date of publication in the Federal Register of the Treasury decision adopting these rules as final regulations. Until regulations finalizing these proposed regulations are issued, taxpayers may not rely on the rules set forth in these proposed regulations.

    Availability of IRS Documents

    For copies of recently issued revenue procedures, revenue rulings, notices and other guidance published in the Internal Revenue Bulletin, please visit the IRS Web site at http://www.irs.gov or contact the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

    Special Analyses

    Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

    The Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6) requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. In this case, the IRS and Treasury believe that the regulations likely would not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. This certification is based on the fact that the number of small entities affected by this rule is unlikely to be substantial because it is unlikely that a substantial number of small multiemployer plans in critical and declining status will suspend benefits under section 432(e)(9). Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel of Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the Treasury Department and the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed rules (including both the provisions set forth in this notice of proposed rulemaking and the provisions set forth in the cross-referenced temporary regulations). Comments are specifically requested on the demonstration of avoidance of insolvency, including the rules related to the use of the extended period for this purpose. In addition, comments are requested on the rules relating to the demonstration that the suspension is not materially in excess of the level necessary to avoid insolvency.

    All comments will be available for public inspection and copying at www.regulations.gov or upon request. Please Note: All comments will be made available to the public. Do not include any personally identifiable information (such as Social Security number, name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines.

    A public hearing on these proposed regulations has been scheduled for September 10, 2015, beginning at 9:00 a.m. in the Amphitheater of the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave. NW., Washington, DC.

    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by August 18, 2015, and an outline of topics to be discussed and the amount of time to be devoted to each topic (a signed original and eight (8) copies) by August 18, 2015. A period of up to 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

    For information about the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

    Contact Information

    For general questions regarding these regulations, please contact the Department of the Treasury at (202) 622-1559 (not a toll-free number). For information regarding a specific application for a suspension of benefits, please contact the Department of the Treasury at (202) 622-1534 (not a toll-free number).

    List of Subjects in 26 CFR Part 1

    Income taxes, reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.432(e)(9)-1 is added to read as follows:
    § 1.432(e)(9)-1 Benefit suspensions for multiemployer plans in critical and declining status.

    (a) General rules on suspension of benefits—(1) General rule. [The text of the proposed amendments to § 1.432(e)(9)-1(a)(1) is the same as § 1.432(e)(9)-1T(a)(1) published elsewhere in this issue of the Federal Register.]

    (2) Adoption of plan terms inconsistent with suspension requirements—(i) General rule. [The text of the proposed amendments to § 1.432(e)(9)-1(a)(2)(i) is the same as § 1.432(e)(9)-1T(a)(2)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Changes in level of suspension. A plan's terms are consistent with the requirements of section 432(e)(9) even if the plan provides that, instead of a suspension of benefits occurring in full on a specified effective date, the amount of a suspension will phase in or otherwise change in a definite, pre-determined manner as of a specified future effective date or dates. However, a plan's terms are inconsistent with the requirements of section 432(e)(9) if they provide that the amount of a suspension will change contingent upon the occurrence of any other specified future event, condition, or development. For example, a plan is not permitted to provide that an additional or larger suspension of benefits is triggered if the plan's funded status deteriorates. Similarly, a plan is not permitted to provide that, contingent upon a specified future event, condition, or development, a suspension of benefits will be automatically reduced (except upon a failure to satisfy the annual requirement, described in paragraph (c)(4) of this section, that the plan sponsor make determinations that the plan is projected to avoid insolvency unless benefits are suspended).

    (3) Organization of the regulation. This paragraph (a) contains definitions and general rules relating to a suspension of benefits by a multiemployer plan under section 432(e)(9). Paragraph (b) of this section defines a suspension of benefits and describes the length of a suspension, the treatment of beneficiaries and alternate payees under this section, and the requirement to select a retiree representative. Paragraph (c) of this section contains rules for the actuarial certification and plan-sponsor determinations that must be made in order for a plan to suspend benefits. Paragraph (d) of this section describes limitations on suspensions of benefits. Paragraph (e) of this section describes limitations on benefit improvements that may be made while a suspension of benefits is in effect. Paragraph (f) of this section describes the requirement to provide notice in connection with an application to suspend benefits. Paragraph (g) of this section describes the approval or denial of an application for a suspension of benefits. Paragraph (h) of this section contains certain rules relating to the vote on an approved suspension, systemically important plans, and the issuance of a final authorization to suspend benefits.

    (4) Definitions. The following definitions apply for purposes of this section—(i) Pay status. [The text of the proposed amendments to § 1.432(e)(9)-1(a)(4)(i) is the same as § 1.432(e)(9)-1T(a)(4)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Plan sponsor. [The text of the proposed amendments to § 1.432(e)(9)-1(a)(4)(ii) is the same as § 1.432(e)(9)-1T(a)(4)(ii) published elsewhere in this issue of the Federal Register.]

    (iii) Effective date of suspension of benefits—(A) In general. In the case of an individual who has commenced benefits, the effective date of a suspension of benefits is the first date as of which a portion of the individual's benefits are not paid as a result of the suspension. In the case of an individual who has not yet commenced benefits, the effective date of a suspension of benefits is the first date as of which the individual's accrued benefit is reduced as a result of the suspension.

    (B) Phased-in suspension. If a suspension of benefits provides for more than one reduction in benefits over time, such that benefits are scheduled to be reduced by an additional amount after benefits are first reduced pursuant to the suspension, then each date as of which benefits are reduced is treated as a separate effective date of the suspension. However, if the effective date of the final scheduled reduction in benefits in a series of reductions pursuant to a suspension is less than three years later than the effective date of the first reduction, the effective date of the first reduction will be treated as the effective date of all subsequent reductions pursuant to that suspension.

    (C) Effective date may not be retroactive. The effective date of a suspension may not precede the date on which a final authorization to suspend benefits is issued pursuant to paragraph (h)(6) of this section.

    (b) Definition of suspension of benefits and related rules. [The text of the proposed amendments to § 1.432(e)(9)-1(b) is the same as § 1.432(e)(9)-1T(b) published elsewhere in this issue of the Federal Register.]

    (c) Conditions for suspension—(1) In general—(i) Actuarial certification and initial-plan-sponsor determinations. [The text of the proposed amendments to § 1.432(e)(9)-1(c)(1)(i) is the same as § 1.432(e)(9)-1T(c)(1)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Annual requirement to make plan-sponsor determinations. As provided in paragraph (c)(5) of this section, the suspension will continue only if the plan sponsor continues to make the annual-plan-sponsor determinations described in paragraph (c)(4) of this section.

    (2) Actuarial certification. [The text of the proposed amendments to § 1.432(e)(9)-1(c)(2) is the same as § 1.432(e)(9)-1T(c)(2) published elsewhere in this issue of the Federal Register.]

    (3) Initial-plan-sponsor determinations. [The text of the proposed amendments to § 1.432(e)(9)-1(c)(3) is the same as § 1.432(e)(9)-1T(c)(3) published elsewhere in this issue of the Federal Register.]

    (4) Annual-plan-sponsor determinations—(i) General rule. A plan satisfies the annual-plan-sponsor determinations requirement of this paragraph (c)(4) for a plan year only if the plan sponsor determines, no later than the last day of the plan year, that—

    (A) All reasonable measures to avoid insolvency have been and continue to be taken; and

    (B) The plan is not projected to avoid insolvency (determined using the standards described in paragraphs (d)(5)(ii), (iv), and (v) of this section, substituting the current plan year for the plan year that includes the effective date of the suspension) unless the suspension of benefits continues (or another suspension of benefits under section 432(e)(9) is implemented) for the plan.

    (ii) Factors. In making its determination that all reasonable measures to avoid insolvency have been and continue to be taken, the plan sponsor may take into account the non-exclusive list of factors in paragraph (c)(3)(ii) of this section.

    (iii) Requirement to maintain written record. The plan sponsor must maintain a written record of the annual-plan-sponsor determinations made under this paragraph (c)(4). The written record must be included in an update to the rehabilitation plan, whether or not there is otherwise an update for that year (or, if the plan is no longer in critical status, must be included in the documents under which the plain is maintained). The written record of the determinations must describe the plan sponsor's consideration of factors, as described in paragraph (c)(4)(ii) of this section.

    (5) Failure to make annual-plan-sponsor determinations. If a plan sponsor fails to satisfy the annual-plan-sponsor determinations requirement of paragraph (c)(4) of this section for a plan year (including maintaining the written record described in paragraph (c)(4)(iii) of this section), then the suspension of benefits will cease to be in effect beginning as of the first day of the next plan year.

    (d) Limitations on suspension—(1) In general. [The text of the proposed amendments to § 1.432(e)(9)-1(d)(1) is the same as § 1.432(e)(9)-1T(d)(1) published elsewhere in this issue of the Federal Register.]

    (2) Guarantee-based limitation—(i) General rule. [The text of the proposed amendments to § 1.432(e)(9)-1(d)(2)(i) is the same as § 1.432(e)(9)-1T(d)(2)(i) published elsewhere in this issue of the Federal Register.]

    (ii) PBGC guarantee. Under section 4022A of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829 (1974)), as amended (ERISA), the monthly benefit of a participant or beneficiary that would be guaranteed by the Pension Benefit Guaranty Corporation (PBGC) with respect to a plan if the plan were to become insolvent as of the effective date of the suspension is generally based on section 4022A(c)(1) of ERISA. Under that section, the monthly benefit that would be guaranteed if the plan were to become insolvent as of the date as of which the guarantee is determined is the product of—

    (A) 100 percent of the accrual rate up to $11, plus 75 percent of the lesser of—

    (1) $33; or

    (2) The accrual rate, if any, in excess of $11; and

    (B) The number of the participant's years and months of credited service as of that date.

    (iii) Calculation of accrual rate. The accrual rate, as defined in section 4022A(c)(2) of ERISA, is calculated by dividing—

    (A) The participant's or beneficiary's monthly benefit, described in section 4022A(c)(2)(A) of ERISA; by

    (B) The participant's years of credited service, described in section 4022A(c)(3) of ERISA, as of the effective date of the suspension.

    (iv) Special rule for non-vested participants. For purposes of this paragraph (d)(2), a participant's nonforfeitable benefits under section 4022A(a) of ERISA include benefits that are forfeitable as of the effective date of the suspension, provided that the participant would have a nonforfeitable right to those benefits if the participant continued to earn vesting service following that date.

    (v) Examples. The following examples illustrate the limitation on a suspension of benefits in this paragraph (d)(2). Unless otherwise stated, the amount of guarantee payable by PBGC in these examples is based on section 4022A(c) of ERISA, and the rules under section 4022A(d) of ERISA (guarantee for benefits reduced under section 411(a)(3)(E)), section 4022A(e) of ERISA (benefits ineligible for guarantee), and section 4022A(h) of ERISA (guarantee for benefits accrued as of July 30, 1980) do not apply. In these examples, unless otherwise stated, the monthly benefits are nonforfeitable, are based on benefits that have been in effect for at least 60 months as of the effective date of the suspension, and are no greater than the monthly benefit that would be payable at normal retirement age in the form of a single life annuity.

    Example 1.

    (i) Facts. A participant is receiving a benefit of $1,500 per month. The participant has 30 years of credited service under the plan.

    (ii) Calculation of accrual rate. The participant's accrual rate is $50, calculated by dividing the participant's monthly benefit payment ($1,500) by the participant's years of credited service (30).

    (iii) Calculation of monthly PBGC-guaranteed benefit. The first $11 of the accrual rate is fully guaranteed, and the next $33 of the accrual rate is 75% guaranteed ($33 × .75 = $24.75). The participant's monthly guaranteed benefit per year of credited service is $35.75 ($11 + $24.75 = $35.75). The PBGC guarantee formula is then applied to produce the amount of guarantee payable by PBGC, which is $1,072.50 ($35.75 × 30 years = $1,072.50).

    (iv) Calculation of guarantee-based limitation. A suspension of benefits may not reduce the participant's benefits below the guarantee-based limitation, which is equal to 110% of the amount of guarantee payable by PBGC. That monthly amount is $1,179.75 ($1,072.50 × 1.1 = $1,179.75).

    Example 2.

    (i) Facts. The facts are the same as in Example 1, except that the participant is deceased and the participant's beneficiary is receiving a monthly benefit of $750 under a 50% joint and survivor annuity.

    (ii) Calculation of accrual rate. The beneficiary's accrual rate is $25, calculated by dividing the beneficiary's monthly benefit payment ($750) by the participant's years of credited service (30).

    (iii) Calculation of monthly PBGC-guaranteed benefit. The first $11 of the accrual rate is fully guaranteed, and the next $14 ($25 − $11 = $14) of the accrual rate is 75% guaranteed ($14 × .75 = $10.50). The beneficiary's monthly guaranteed benefit is $21.50 per year of credited service ($11 + $10.50 = $21.50). The PBGC guarantee formula is then applied to produce the amount of guarantee payable by PBGC, which is $645 ($21.50 × 30 years = $645).

    (iv) Calculation of guarantee-based limitation. A suspension of benefits may not reduce the beneficiary's benefits below the guarantee-based limitation, which is equal to 110% of the monthly amount of guarantee payable by PBGC. That monthly guarantee-based limitation amount is $709.50 ($645 × 1.1 = $709.50).

    Example 3.

    (i) Facts. A participant would be eligible for a monthly benefit of $1,000 payable as a single life annuity at normal retirement age, based on the participant's 25 years of credited service. The plan also permits a participant to receive a benefit on an unreduced basis as a single life annuity at early retirement age and permits participants to receive an early retirement benefit in the form of a Social Security level income option. Under the Social Security level income option, the participant receives a monthly benefit of $1,600 prior to normal retirement age (which is the plan's assumed Social Security retirement age) and $900 after normal retirement age.

    (ii) Calculation of accrual rate. For purposes of calculating the accrual rate, the monthly benefit that is used to calculate the PBGC guarantee does not exceed the monthly benefit of $1,000 that would be payable at normal retirement age. In calculating the accrual rate, the amount of guarantee payable by PBGC would be based on a monthly benefit of $1,000 prior to normal retirement age and $900 after normal retirement age. Before normal retirement age, the participant's accrual rate is $40, determined by dividing the participant's monthly benefit payment ($1,000) by years of credited service (25). After normal retirement age, the participant's accrual rate is $36, calculated by dividing the participant's monthly benefit payment ($900) by the participant's years of credited service (25).

    (iii) Calculation of monthly PBGC-guaranteed benefit. Before normal retirement age, the first $11 of the accrual rate is fully guaranteed, and the next $29 of the accrual rate is 75% guaranteed ($29 × .75 = $21.75). The participant's monthly guaranteed benefit per year of credited service is $32.75 ($11 + $21.75 = $32.75). The PBGC guarantee formula is then applied to produce the amount of guarantee payable by PBGC, which is $818.75 ($32.75 × 25 years = $818.75). After normal retirement age, the first $11 of the accrual rate is fully guaranteed, and the next $25 of the accrual rate is 75% guaranteed ($25 × .75 = $18.75). The participant's monthly guaranteed benefit per year of credited service is $29.75 ($11 + $18.75 = $29.75). The PBGC guarantee formula is then applied to produce the amount of guarantee payable by PBGC, which is $743.75 after normal retirement age ($29.75 × 25 years = $743.75).

    (iv) Calculation of guarantee-based limitation. A suspension of benefits may not reduce the participant's benefits below the guarantee-based limitation, which is equal to 110% of the monthly amount of guarantee payable by PBGC. That monthly guarantee-based limitation amount is $900.63 ($818.75 × 1.1 = $900.63) before normal retirement age and $818.13 ($743.75 × 1.1 = $818.13) after normal retirement age.

    Example 4.

    (i) Facts. A participant would be eligible for a monthly benefit of $1,000 payable as a single life annuity at normal retirement age, based on the participant's 20 years of credited service. The plan provides an actuarial increase for delaying benefits until after normal retirement age. The participant delays commencement of benefits until after normal retirement age and the participant's monthly benefit is $1,200 instead of $1,000.

    (ii) Calculation of accrual rate. For purposes of calculating the accrual rate, the monthly benefit that is used to calculate the PBGC guarantee does not exceed the monthly benefit of $1,000 that would be payable at normal retirement age. Thus, in determining the accrual rate, the PBGC guarantee would be based on a monthly benefit of $1,000, whether benefits are paid at or after normal retirement age. The participant's accrual rate is $50, calculated by dividing the participant's monthly benefit payment ($1,000) by the participant's years of credited service (20).

    (iii) Calculation of monthly PBGC-guaranteed benefit. The first $11 of the accrual rate is fully guaranteed, and the next $33 of the accrual rate is 75% guaranteed ($33 × .75 = $24.75). The participant's monthly guaranteed benefit per year of credited service is $35.75 ($11 + $24.75 = $35.75). The PBGC guarantee formula is then applied to produce the amount of guarantee payable by PBGC, which is $715 ($35.75 × 20 years = $715).

    (iv) Calculation of guarantee-based limitation. A suspension of benefits may not reduce the participant's benefits below the guarantee-based limitation, which is equal to 110% of the monthly amount of guarantee payable by PBGC. That monthly guarantee-based limitation amount is $786.50 ($715 × 1.1 = $786.50).

    Example 5.

    (i) Facts. A plan provides that a participant who has completed at least five years of service will have a nonforfeitable right to 100% of an accrued benefit (and will not have a nonforfeitable right to any portion of the accrued benefit prior to completing five years of service). The plan implements a suspension of benefits on January 1, 2017. As of that date, a participant has three years of vesting service, and none of the participant's benefits are nonforfeitable under the terms of the plan.

    (ii) Calculation of nonforfeitable benefits. For purposes of applying the guarantee-based limitation, the participant is considered to have a nonforfeitable right to 100% of the accrued benefit under the plan as of January 1, 2017.

    (3) Age-based limitation—(i) No suspension for participants or beneficiaries who are age 80 and older. No suspension of benefits is permitted to apply to a participant, beneficiary, or alternate payee who—

    (A) Has commenced benefits as of the effective date of the suspension; and

    (B) Has attained 80 years of age no later than the end of the month that includes the effective date of the suspension.

    (ii) Limited suspension for participants and beneficiaries between ages 75 and 80. No more than the applicable percentage of the maximum suspendable benefit may be suspended for a participant, beneficiary, or alternate payee who—

    (A) Has commenced benefits as of the effective date of the suspension; and

    (B) Has attained 75 years of age no later than the end of the month that includes the effective date of the suspension.

    (iii) Maximum suspendable benefit—(A) In general. For purposes of this paragraph (d)(3), the maximum suspendable benefit with respect to a participant, beneficiary, or alternate payee is the portion of the individual's benefits that would otherwise be suspended pursuant to this section (that is, the amount that would be suspended without regard to the limitation in this paragraph (d)(3)).

    (B) Coordination of limitations. An individual's maximum suspendable benefit is calculated after the application of the guarantee-based limitation under paragraph (d)(2) of this section and the disability-based limitation under paragraph (d)(4) of this section.

    (iv) Applicable percentage. For purposes of this paragraph (d)(3), the applicable percentage is the percentage obtained by dividing—

    (A) The number of months during the period beginning with the month after the month in which the suspension of benefits is effective and ending with the month during which the participant or beneficiary attains the age of 80, by

    (B) 60.

    (v) Applicability of age-based limitation to benefits paid to beneficiaries. If the age-based limitation in this paragraph (d)(3) applies to a participant on the effective date of the suspension, then the age-based limitation also applies to the beneficiary of the participant, based on the age of the participant on the effective date of the suspension.

    (vi) Rule for benefits that have not commenced at the time of the suspension. If benefits have not commenced to either a participant or beneficiary as of the effective date of the suspension, then in applying this paragraph (d)(3)—

    (A) If the participant is alive on the effective date of the suspension, the participant is treated as having commenced benefits on that date; and

    (B) If the participant is deceased on effective date of the suspension, the beneficiary is treated as having commenced benefits on that date.

    (vii) Rules for alternate payees. The age-based limitation in this paragraph (d)(3) applies to a suspension of benefits in which an alternate payee has an interest, whether or not the alternate payee has commenced benefits as of the effective date of the suspension. For purposes of this paragraph (d)(3), the applicable percentage for an alternate payee is calculated by—

    (A) Using the participant's age as of the effective date of the suspension, if the alternate payee's right to the suspended benefits derives from a qualified domestic relations order within the meaning of section 414(p)(1)(A) (QDRO) under which the alternate payee shares in each benefit payment but the participant retains the right to choose the time and form of payment with respect to the benefit to which the suspension applies (shared payment QDRO); or

    (B) Substituting the alternate payee's age as of the effective date of the suspension for the participant's age, if the alternate payee's right to the suspended benefits derives from a QDRO under which the alternate payee has a separate right to receive a portion of the participant's retirement benefit to be paid at a time and in a form different from that chosen by the participant (separate interest QDRO).

    (viii) Examples. The following examples illustrate the rules of this paragraph (d)(3):

    Example 1.

    (i) Facts. The plan sponsor of a plan in critical and declining status is implementing a suspension of benefits, effective December 1, 2017, that would reduce all benefit payments under the plan by 30%. On that date, a retiree is receiving a monthly benefit of $1,500 (which is not a benefit based on disability) and has 28 years of credited service under the plan. If none of the limitations in section 432(e)(9)(D)(i), (ii), and (iii) were to apply, a 30% suspension would reduce the retiree's monthly benefit by $450, to $1,050. Under the guarantee-based limitation in section 432(e)(9)(D)(i), the retiree's monthly benefit could not be reduced by more than $398.90, to $1,101.10 (1.1 × (28 × ($11 + (.75 × $33)))). The retiree is 77 years old on the effective date of the suspension, turns 78 on December 15, 2017, and turns 80 on December 15, 2019.

    (ii) Maximum suspendable benefit. Because the retiree is not receiving a benefit based on disability under section 432(e)(9)(D)(iii), the retiree's maximum suspendable benefit is $398.90 (which is equal to the lesser of reduction that would apply pursuant to the 30% suspension ($450) or the amount of reduction that would be permitted under the guarantee-based limitation ($398.90)).

    (iii) Applicable percentage. Because the retiree is between ages 75 and 80 on the effective date of the suspension, the reduction is not permitted to exceed the applicable percentage of the retiree's maximum suspendable benefit. The number of months during the period beginning with January 2018 (the month after the month that includes the effective date of the suspension) and ending with December 2019 (the month in which the retiree turns 80) is 24. The applicable percentage is equal to 40% (24 months divided by 60).

    (iv) Age-based limitation. The retiree's maximum suspendable benefit is $398.90 and the applicable percentage is 40%. Thus, under the age-based limitation, the retiree's benefit may not be reduced by more than $159.56 ($398.90 × .40 = $159.56). Because the retiree was receiving a monthly benefit of $1,500, the suspension of benefits may not reduce the retiree's monthly benefit below $1,340.44 ($1,500 − $159.56 = $1,340.44).

    Example 2.

    (i) Facts. The facts are the same as Example 1, except that the retiree is 79 years old on December 1, 2017, and turns 80 on December 15, 2017.

    (ii) Age-based limitation. The suspension is not permitted to apply to the retiree because the retiree will turn 80 by the end of the month (December 2017) in which the suspension is effective.

    Example 3.

    (i) Facts. The facts are the same as Example 1, but on the effective date of the suspension, the retiree is receiving a benefit in the form of a 50% joint and survivor annuity for himself and a contingent beneficiary who is age 71. The retiree dies in October 2018.

    (ii) Application of age-based limitation to contingent beneficiary. Because the retiree had attained age 78 in the month that included the effective date of the suspension, the age-based limitation on the suspension of benefits for a 78-year-old individual applies to the retiree. The age-based limitation also applies to the contingent beneficiary, even though the contingent beneficiary had not commenced benefits under the plan as of the effective date of the suspension and had not attained age 75 by the end of the month containing the effective date of the suspension.

    (iii) Maximum suspendable benefit. The contingent beneficiary's amount of guarantee payable by PBGC is based on the benefit the beneficiary would have received from the plan before the suspension ($750). The beneficiary's accrual rate is $26.7857 (calculated by dividing the monthly benefit payment ($750) by years of credited service (28)) and the beneficiary's amount of guarantee payable by PBGC is $639.50 (28 × ($11 + (.75 × $15.7857))). The beneficiary's maximum suspendable benefit is $46.55 (which is equal to the lesser of reduction that would apply pursuant to the 30% suspension ($225) or the amount of reduction that would be permitted under the guarantee-based limitation ($46.55, which is equal to ($750 − 1.1 × 639.50)).

    (iv) Applicable percentage. The applicable percentage for the beneficiary is based on the retiree's age of 78 on the effective date of the suspension. Accordingly, the applicable percentage for the beneficiary is 40%.

    (v) Age-based limitation. The beneficiary's maximum suspendable benefit is $46.55 and the applicable percentage is 40%. Thus, under the age-based limitation, the beneficiary's benefit may not be reduced by more than $18.62 ($46.55 × .40 = $18.62). Therefore, as a result of the retiree's age-based limitation, the suspension of benefits may not reduce the beneficiary's monthly benefit below $731.38 ($750 − $18.62 = $731.38).

    Example 4.

    (i) Facts. The facts are the same as Example 3, except that on the effective date of the suspension the retiree is age 71 and the retiree's contingent beneficiary is age 77.

    (ii) Application of age-based limitation to contingent beneficiary. Because the retiree had not reached age 75 as of the effective date of the suspension, the age-based limitation on the suspension of benefits does not apply to the retiree. The age-based limitation also does not apply to the retiree's contingent beneficiary, even though the contingent beneficiary had attained age 77 as of the effective date of the suspension, because the contingent beneficiary had not yet commenced benefits on that date. The beneficiary's post-suspension benefit may not be less than minimum benefit payable pursuant to the guarantee-based limitation, which is $703.45 ($639.50 × 1.1 = $703.45).

    Example 5.

    (i) Facts. The facts are the same as in Example 4, except that the retiree died in October 2017, prior to the December 1, 2017 effective date of the suspension of benefits. The retiree's beneficiary commenced benefits on November 1, 2017.

    (ii) Application of age-based limitation to contingent beneficiary. Because the retiree's beneficiary had commenced benefits before the effective date of the suspension and had reached age 75 by the end of the month that includes the effective date of the suspension, the age-based limitation applies to the beneficiary based on the beneficiary's age on the effective date of the suspension.

    (4) Disability-based limitation—(i) General rule [The text of the proposed amendments to § 1.432(e)(9)-1(d)(4)(i) is the same as § 1.432(e)(9)-1T(d)(4)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Benefits based on disability—(A) In general. For purposes of this section, benefits based on disability means the entire amount paid to a participant pursuant to the participant becoming disabled, without regard to whether a portion of that amount would have been paid if the participant had not become disabled.

    (B) Rule for auxiliary or other temporary disability benefits. If a participant begins receiving an auxiliary or other temporary disability benefit and the sole reason the participant ceases receiving that benefit is commencement of retirement benefits, the benefit based on disability after commencement of retirement benefits is the lesser of—

    (1) The periodic payment the participant was receiving immediately before the participant's retirement benefits commenced; or

    (2) The total periodic payments to the participant under the plan.

    (C) Examples. The following examples illustrate the disability-based limitation on a suspension of benefits under this paragraph (d)(4):

    Example 1.

    (i) Facts. A participant with a vested accrued benefit of $1,000 per month, payable at age 65, becomes disabled at age 55. The plan applies a reduction to the monthly benefit for early commencement if the participant commences benefits before age 65. For a participant who commences receiving benefits at age 55, the actuarially adjusted early retirement benefit is 60% of the accrued benefit. However, the plan also provides that if a participant becomes entitled to an early retirement benefit on account of disability, as defined in the plan, the benefit is not reduced. On account of a disability, the participant commences an unreduced early retirement benefit of $1,000 per month at age 55 (instead of the $600 monthly benefit the participant would receive if the participant were not disabled). The participant continues to receive $1,000 per month after reaching age 65.

    (ii) Conclusion. The participant's disability benefit payment of $1,000 per month commencing at age 55 is a benefit based on disability, even though the participant would have received a portion of these benefits at retirement regardless of the disability. Thus, both before and after attaining age 65, the participant's entire monthly payment amount ($1,000) is a benefit based on disability. A suspension of benefits is not permitted to apply to any portion of the participant's benefit at any time.

    Example 2.

    (i) Facts. The facts are the same as Example 1, except that the terms of the plan provide that when a disabled participant reaches age 65, the disability pension is discontinued by reason of reaching age 65, and the retirement benefits commence. In this case, the amount of the participant's retirement benefits is the same as the amount that the participant was receiving immediately before commencing retirement benefits, or $1,000.

    (ii) Conclusion. Before age 65, the participant's disability benefit payment of $1,000 per month commencing at age 55 is a benefit based on disability. After age 65, the periodic payment of $1,000 per month that the participant was receiving immediately before commencing retirement benefits is a benefit based on disability. Thus, both before and after attaining age 65, the participant's entire monthly payment amount ($1,000) is a benefit based on disability. A suspension of benefits is not permitted to apply to any portion of the participant's benefit at any time.

    Example 3.

    (i) Facts. The facts are the same as Example 2, except that upon reaching age 65, the participant elects to commence payment of retirement benefits not in the form of a single life annuity payable in the amount of $1,000 per month but instead in the form of an actuarially equivalent joint and survivor annuity payable in the amount of $850 per month.

    (ii) Conclusion. Before age 65, the participant's benefit based on disability is $1,000 per month. After age 65, the participant's benefit based on disability is $850 per month. Thus, a suspension of benefits is not permitted to apply to any portion of those benefits at any time.

    Example 4.

    (i) Facts. A participant's disability pension is a specified amount unrelated to the participant's accrued benefit. The participant's disability benefit commencing at age 55 is $750 per month. Upon reaching age 65, the participant's disability pension is discontinued by reason of reaching age 65 and the participant elects to receive an accrued benefit payable in the amount of $1,000 per month.

    (ii) Conclusion. Before age 65, the participant's benefit based on disability is $750 per month. After age 65, the participant's benefit based on disability continues to be $750 per month (even though the participant's payment is $1,000 per month), because the benefit based on disability is the lesser of the periodic disability pension the participant was receiving immediately before retirement benefits commenced ($750) and the periodic payment to the participant under the plan ($1,000). Thus, a suspension of benefits is not permitted to reduce the participant's benefit based on disability ($750 per month) at any time.

    Example 5.

    (i) Facts. The facts are the same as Example 2, except that when the participant attains age 65, the participant's monthly benefit payment increases from $1,000 to $1,300 as a result of the plan providing additional accruals during the period of disability, as if the participant was not disabled.

    (ii) Conclusion. As in Example 2, before age 65, the participant's benefit payment of $1,000 per month commencing at age 55 is a benefit based on disability. After age 65, the participant's benefit payment of $1,300 per month is a benefit based on disability because the $1,300 is payable based on additional accruals earned pursuant to the participant becoming disabled. Thus, both before and after attaining age 65, the participant's entire monthly payment amount is a benefit based on disability. A suspension of benefits is not permitted to apply to any portion of the participant's benefit at any time.

    Example 6.

    (i) Facts. The facts are the same as Example 3 of paragraph (d)(2)(v) of this section, except that the Social Security level income option is only available to a participant who incurs a disability as defined in the plan.

    (ii) Conclusion. Before normal retirement age, the participant's benefit payment of $1,600 per month is a benefit based on disability. After normal retirement age, the participant's benefit based on disability is $900, which is the lesser of the $1,600 periodic payment that the participant was receiving immediately before the participant's normal retirement benefit commenced and the participant's $900 normal retirement benefit. Thus, a suspension of benefits is not permitted to apply to any portion of those benefits ($1,600 per month before and $900 per month after normal retirement age) at any time.

    Example 7.

    (i) Facts. A plan applies a reduction to the monthly benefit for early commencement if a participant commences benefits before age 65. The plan also provides that if a participant becomes disabled, as defined in the plan, the benefit that is paid before normal retirement age is not reduced for early retirement. Under the plan, when a disabled participant reaches age 65, the disability pension is discontinued by reason of reaching age 65 and the retirement benefits commence. A participant with a vested accrued benefit of $1,000 per month, payable at age 65, becomes disabled at age 55. On account of the disability, the participant commences benefits at age 55 in the amount of $1,000 per month (instead of the $600 monthly benefit the participant could have received at that age if the participant were not disabled). The participant recovers from the disability at age 60, and the participant's disability benefits cease. At age 60, the participant immediately elects to begin an early retirement benefit of $800.

    (ii) Conclusion. The participant's disability benefit payment of $1,000 per month commencing at age 55 is a benefit based on disability, even though the participant would have received a portion of these benefits at retirement regardless of the disability. Because the participant ceased receiving disability benefits on account of the participant no longer being disabled (and not solely on account of commencing retirement benefits), the participant's early retirement benefit of $800 per month that began after the disability benefit ended is not a benefit based on disability.

    (5) Limitation on aggregate size of suspension—(i) General rule. Any suspension of benefits (considered, if applicable, in combination with a partition of the plan under section 4233 of ERISA (partition)) must be at a level that is reasonably estimated to—

    (A) Enable the plan to avoid insolvency; and

    (B) Not materially exceed the level that is necessary to enable the plan to avoid insolvency.

    (ii) Suspension sufficient to avoid insolvency—(A) General rule. A suspension of benefits (considered, if applicable, in combination with a partition of the plan) will satisfy the requirement that it is at a level that is reasonably estimated to enable the plan to avoid insolvency if—

    (1) For each plan year throughout an extended period (as described in paragraph (d)(5)(ii)(C) of this section) beginning on the first day of the plan year that includes the effective date of the suspension, the plan's solvency ratio is projected on a deterministic basis to be at least 1.0;

    (2) Based on stochastic projections reflecting variance in investment return, the probability that the plan will avoid insolvency throughout the extended period is more than 50 percent; and

    (3) Unless the plan's projected funded percentage (within the meaning of section 432(j)(2)) at the end of the extended period using a deterministic projection exceeds 100 percent, then the projection shows that at all times during the last five plan years of that period, there is no projected decrease in either the plan's solvency ratio or its available resources (as defined in section 418E(b)(3)).

    (B) Solvency ratio. For purposes of this section, a plan's solvency ratio for a plan year means the ratio of—

    (1) The plan's available resources (as defined in section 418E(b)(3)) for the plan year; to

    (2) The scheduled benefit payments under the plan for the plan year.

    (C) Extended period. For purposes of this section, an extended period means a period of at least 30 plan years. However, in the case of a temporary suspension of benefits that is scheduled to cease as of a date that is more than 25 years after the effective date, the extended period must be lengthened so that it ends no earlier than five plan years after the cessation of the suspension.

    (iii) Suspension not materially in excess of level necessary to avoid insolvency—(A) General rule. A suspension of benefits will satisfy the requirement under paragraph (d)(5)(i)(B) of this section that the suspension be at a level that is reasonably estimated to not materially exceed the level necessary for the plan to avoid insolvency only if an alternative, similar but smaller suspension of benefits, under which the dollar amount of the suspension for each participant and beneficiary is reduced by five percent would not be sufficient to enable the plan to satisfy the requirement to avoid insolvency under paragraph (d)(5)(i)(A) of this section.

    (B) Special rule for partitions. If the PBGC issues an order partitioning the plan, then a suspension of benefits with respect to the plan will be deemed to satisfy the requirement under paragraph (d)(5)(i)(B) of this section that the suspension be at a level that is reasonably estimated to not materially exceed the level necessary for the plan to avoid insolvency.

    (iv) Actuarial basis for projections—(A) In general. This paragraph (d)(5)(iv) sets forth rules for the actuarial projections that are required under this paragraph (d)(5). The projections must reflect the assumption that the suspension of benefits continues indefinitely (or, if the suspension expires on a specified date by its own terms, until that date).

    (B) Reasonable actuarial assumptions and methods. The actuarial assumptions and methods used for the actuarial projections must be reasonable, in accordance with the rules of section 431(c)(3). The actuary's selection of assumptions about future covered employment and contribution levels (including contribution base units and average contribution rate) may be based on information provided by the plan sponsor, which must act in good faith in providing the information. In addition, to the extent that the actuarial assumptions used for the deterministic projection differ from those used to certify whether the plan is in critical and declining status pursuant to section 432(b)(3)(B)(iv), a justification for that difference must be provided. Similarly, to the extent that the actuarial assumptions used for the stochastic projection differ from those used for the deterministic projection (other than the rate of investment return), a justification for that difference must be provided.

    (C) Initial value of plan assets and cash flow projections. Except as provided in paragraph (d)(5)(iv)(D) of this section, the cash flow projections must be based on—

    (1) The fair market value of assets as of end of the most recent calendar quarter;

    (2) Projected benefit payments that are consistent with the projected benefit payments under the most recent actuarial valuation; and

    (3) Appropriate adjustments to projected benefit payments to include benefits for new hires who are reflected in the projected contribution amounts.

    (D) Requirement to reflect significant events. The projected cash flows relating to contributions, withdrawal liability payments, and benefit payments must also be adjusted to reflect significant events that occurred after the most recent actuarial valuation. Significant events include—

    (1) A plan merger or transfer;

    (2) The withdrawal or the addition of employers that changed projected cash flows relating to contributions, withdrawal liability payments, or benefit payments by more than five percent;

    (3) A plan amendment, a change in a collective bargaining agreement, or a change in a rehabilitation plan that changed projected cash flows relating to contributions, withdrawal liability payments, or benefit payments by more than five percent; or

    (4) Any other event or trend that resulted in a material change in the projected cash flows.

    (v) Simplified determination for smaller plans. In the case of a plan that is not large enough to be required to select a retiree representative under paragraph (b)(4) of this section, the determination of whether the benefit suspension (or a benefit suspension in combination with a partition of the plan) will satisfy the requirement that it is at a level that is reasonably estimated to enable the plan to avoid insolvency is permitted to be made without regard to paragraph (d)(5)(ii)(A)(2) of this section.

    (vi) Additional disclosure—(A) Disclosure of past experience for critical assumptions. The application for suspension must include a disclosure of the total contributions, total contribution base units and average contribution rate, withdrawal liability payments, and the rate of return on plan assets for each of the 10 plan years preceding the plan year in which the application is submitted.

    (B) Sensitivity of results to investment return assumptions. The application must include deterministic projections of the plan's solvency ratio over the extended period using two alternative assumptions for the plan's rate of return. These alternatives are that the plan's future rate of return will be lower than the assumed rate of return used under paragraph (d)(5)(iv)(B) of this section by—

    (1) One percentage point; and

    (2) Two percentage points.

    (C) Sensitivity of results to industry level assumptions. The application must include deterministic projections of the plan's solvency ratio over the extended period using two alternative assumptions for the future contribution base units. These alternatives are that the future contribution base units—

    (1) Continue under the same trend as the plan experienced over the past 10 years; and

    (2) Continue under the trend identified in paragraph (d)(5)(vi)(C)(1) of this section reduced by one percentage point.

    (D) Projection of funded percentage. The application must include an illustration, prepared on a deterministic basis, of the projected value of plan assets, the accrued liability of the plan (calculated using the unit credit funding method), and the funded percentage for each year in the extended period.

    (6) Equitable distribution—(i) In general. Any suspension of benefits must be equitably distributed across the participant and beneficiary population, taking into account factors, with respect to participants and beneficiaries and their benefits, that may include one or more of the factors described in paragraph (d)(6)(ii) of this section. If a suspension of benefits applies differently to different categories or groups of participants and beneficiaries, then the suspension of benefits is equitably distributed across the participant and beneficiary population only if under the suspension—

    (A) Within each such category or group, the individuals are treated consistently;

    (B) Any difference in treatment among the different categories or groups is based on relevant factors reasonably selected by the plan sponsor, such as the factors described in paragraph (d)(6)(ii) of this section; and

    (C) Any such difference in treatment is based on a reasonable application of the relevant factors.

    (ii) Factors that may be considered—(A) In general. In accordance with paragraph (d)(6)(i)(B) of this section, if there is any difference in the application of the suspension of benefits between one classification of participants and beneficiaries and another classification of participants and beneficiaries, that difference must be based reasonably on the statutory factors (described in paragraph (d)(6)(ii)(B) of this section) and any other factors reasonably selected by the plan sponsor. For example, it would be reasonable for a plan sponsor to conclude that the statutory factor described in paragraph (d)(6)(ii)(B)(3) of this section (amount of benefit) is a factor that should be taken into account as justifying a lesser benefit reduction for participants or beneficiaries whose benefits are closer to the level of the PBGC guarantee than for others. In addition, it would be reasonable for a plan sponsor to conclude that the presumed financial vulnerability of certain participants or beneficiaries who are reasonably deemed to be in greater need of protection than other participants or beneficiaries is a factor that should be taken into account as justifying a lesser benefit reduction (as a percentage or otherwise) for those participants or beneficiaries than for others.

    (B) Statutory factors. Factors that may be selected as a basis for differences in the application of a suspension of benefits include, when reasonable under the circumstances, the following statutory factors:

    (1) The age and life expectancy of the participant and/or beneficiary;

    (2) The length of time that benefits have been in pay status;

    (3) The amount of benefits;

    (4) The type of benefit, such as survivor benefit, normal retirement benefit, or early retirement benefit;

    (5) The extent to which a participant or beneficiary is receiving a subsidized benefit;

    (6) The extent to which a participant or beneficiary has received post-retirement benefit increases;

    (7) The history of benefit increases and reductions for participants and beneficiaries;

    (8) The number of years to retirement for active employees;

    (9) Any differences between active and retiree benefits;

    (10) The extent to which active participants are reasonably likely to withdraw support for the plan, accelerating employer withdrawals from the plan and increasing the risk of additional benefit reductions for participants in and out of pay status; and

    (11) The extent to which a participant's or beneficiary's benefits are attributable to service with an employer that failed to pay its full withdrawal liability.

    (iii) Reasonable application of factors. A suspension of benefits will not satisfy the requirement to be equitably distributed if it is based on an unreasonable application of the factors referred to in paragraph (d)(6)(ii) of this section. For example, it would constitute an unreasonable application of the factor described in paragraph (d)(6)(ii)(B)(3) of this section (amount of benefit) if that factor were used to justify a larger suspension for participants with smaller benefits.

    (iv) Examples. The following examples illustrate the rules on equitable distribution of a suspension of benefits in this paragraph (d)(6). As a simplifying assumption for purposes of these examples, it is assumed that the facts of each example describe all of the factors that are included in the application discussed in the example (provided, however, that, in the case of a plan described in section 432(e)(9)(D)(vii), the examples are not intended to illustrate the application of section 432(e)(9)(D)(vii) or its effect on the analysis or conclusions in the examples). Throughout these examples, the guarantee-based, age-based, and disability-based limitations of section 432(e)(9)(D)(i), (ii), and (iii) are referred to as the individual limitations on benefit suspensions.

    Example 1.

    (i) Facts. A suspension of benefits provides that, subject to the individual limitations on benefit suspensions, benefits for all participants and beneficiaries are reduced by the same percentage, and explains the rationale for this reduction.

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations.

    Example 2.

    (i) Facts. A suspension of benefits provides that, subject to the age-based and disability-based limitations of section 432(e)(9)(D)(ii) and (iii), the portion of each participant's and beneficiary's benefit that exceeds the guarantee-based limitation of section 432(e)(9)(D)(i) is reduced by the same percentage, and explains the rationale for this reduction.

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations. The result would be the same if, instead, the suspension of benefits applies only to benefits that exceed a multiple (in excess of 100%) of the guarantee-based limitation.

    Example 3.

    (i) Facts. A plan was previously amended to provide an ad hoc 15% increase to the benefits of all participants and beneficiaries (including participants who, at the time, were no longer earning service under the plan, which therefore included retirees and deferred vested participants). The plan sponsor applies for a suspension of benefits. Under the suspension of benefits, subject to the individual limitations on benefit suspensions, benefits for all participants and beneficiaries who were no longer earning service under the plan at the time of the ad hoc amendment are reduced by eliminating the amendment for those individuals. The suspension application explains why the benefit reduction is based on the statutory factors in paragraph (d)(6)(ii)(B)(6) of this section (the extent to which a participant or beneficiary has received post-retirement benefit increases), including application of the reduction to those who, at the time of the previous benefit increase, were either retired participants or deferred vested participants, and in paragraph (d)(6)(ii)(B)(7) of this section (the history of benefit increases and reductions), and why it is reasonable to apply the factors in this manner.

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations. This is because the difference in treatment among the different groups of participants is based on whether a participant has received post-retirement benefit increases (in this case, whether a participant was earning service under the plan at the time of the benefit increase amendment), which under these facts is a relevant factor that may be reasonably selected by the plan sponsor, and the difference in treatment between the groups of participants (eliminating the amendment only for benefits with respect to participants who were no longer earning service at the time of the amendment) is based on a reasonable application of that factor.

    Example 4.

    (i) Facts. A plan contains a provision that provides a “thirteenth check” in plan years for which the investment return is greater than 7% (which was the assumed rate of return under the plan's actuarial valuation). The plan sponsor applies for a suspension of benefits. Under the suspension of benefits, subject to the individual limitations on benefit suspensions, benefits for all participants and beneficiaries are reduced by eliminating the “thirteenth check” for all those individuals. The suspension application explains why the benefit reduction is based on the statutory factors in paragraph (d)(6)(ii)(B)(6) of this section (the extent to which a participant or beneficiary has received post-retirement benefit increases) and in paragraph (d)(6)(ii)(B)(7) of this section (the history of benefit increases and reductions), and why it is reasonable to apply the factors in this manner.

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations.

    Example 5.

    (i) Facts. A plan was previously amended to reduce future accruals from $60 per year of service to $50 per year of service. The plan sponsor applies for a suspension of benefits. Under the suspension of benefits, subject to the individual limitations on benefit suspensions, the accrued benefits for all participants and beneficiaries are reduced to $50 per year of service (and applies the plan's generally applicable adjustments for early retirement and form of benefit). The suspension application explains why the benefit reduction is based on the statutory factor in paragraph (d)(6)(ii)(B)(7) of this section (the history of benefit increases and reductions), and why it is reasonable to apply the factors in this manner.

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations. This is because the difference in treatment among the different groups of participants is based on the history of benefit reductions and a discrepancy between active and retiree benefits, which under these facts are relevant factors that may be reasonably selected by the plan sponsor, and the difference in treatment between the groups of participants (reducing the $60 benefit multiplier to $50 per year of service for those participants who had accrued any benefits under the $60 multiplier) is based on a reasonable application of those factors.

    Example 6.

    (i) Facts. The facts are the same as in Example 5, except that no plan amendments have previously reduced future accruals or other benefits for active participants. Under the suspension of benefits, subject to the individual limitations on benefit suspensions, benefits for deferred vested participants, retirees and beneficiaries who have commenced benefits are reduced, but no reduction applies to active participants. The suspension of benefits is not accompanied by any reductions in future accruals or other benefits for active participants.

    (ii) Conclusion. The suspension of benefits is not equitably distributed across the participant and beneficiary populations. This is because, under these facts, no relevant factor (such as a previous reduction in benefits applicable only to active participants) has been reasonably selected by the plan sponsor to justify the proposed difference in treatment among the categories.

    Example 7.

    (i) Facts. The facts are the same as in Example 6, except that the suspension of benefits provides for a reduction that applies to both active and inactive participants. However, the reduction that applies to active participants is smaller than the reduction that applies to inactive participants because the plan sponsor concludes, as explained and supported in the application for suspension, that active participants are reasonably likely to withdraw support for the plan if any larger reduction is applied.

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations. This is because the difference in treatment among the different groups of participants is based on the extent to which active participants are reasonably likely to withdraw support for the plan, which under these facts is a relevant factor that may reasonably be selected by the plan sponsor, and the difference in treatment between the two groups of participants (applying a greater suspension to inactive than to active participants) is based on a reasonable application of that factor.

    Example 8.

    (i) Facts. A suspension of benefits provides that, subject to the individual limitations on benefit suspensions, the benefits for participants and beneficiaries attributable to service with an employer that failed to pay its full withdrawal liability are reduced by 50%. The plan sponsor applies for a suspension of benefits. As explained in the suspension application, the present value of the benefit reduction with respect to the former employees of one such employer is significantly greater than the unpaid withdrawal liability for that employer. Benefits for participants and beneficiaries attributable to service with all other employers are reduced by 10%.

    (ii) Conclusion. The suspension of benefits is not equitably distributed across the participant and beneficiary populations. This is because although the difference in treatment among the different groups of participants is based on a relevant factor that may reasonably be selected by the plan sponsor, the difference in treatment between the groups of participants is not based on a reasonable application of that factor.

    Example 9.

    (i) Facts. A suspension of benefits provides that, subject to the individual limitations on benefit suspensions, the benefits for all participants and beneficiaries are reduced by the same percentage, except that the benefits for employees and former employees of a particular employer that is actively represented on the plan's Board of Trustees are reduced by a specified lesser percentage.

    (ii) Conclusion. The suspension of benefits is not equitably distributed across the participant and beneficiary populations. This is because, under these facts, no relevant factor has been reasonably selected by the plan sponsor to justify the difference in treatment among the groups of employees.

    Example 10.

    (i) Facts. The facts are the same as in Example 9, except that the particular employer whose employees and former employees are subject to the lesser benefit reduction is the union that also participates in the plan.

    (ii) Conclusion. The suspension of benefits is not equitably distributed across the participant and beneficiary populations. This is because, under these facts, no relevant factor has been reasonably selected by the plan sponsor to justify the difference in treatment among the groups of employees.

    Example 11.

    (i) Facts. A suspension of benefits provides that, subject to the individual limitations on benefit suspensions, the monthly benefit of all participants and beneficiaries is reduced to 110% of the monthly benefit that is guaranteed by the PBGC under section 4022A of ERISA. The plan sponsor applies for a suspension of benefits. As explained in the suspension application, this is because the plan sponsor is applying to the PBGC for a partition of the plan, which requires the plan sponsor to have implemented the maximum benefit suspensions under section 432(e)(9).

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations.

    Example 12.

    (i) Facts. The facts are the same as in Example 1, except that the suspension of benefits provides that the protection for benefits based on disability also includes payments to a beneficiary of a participant who had been receiving benefits based on disability at the time of death.

    (ii) Conclusion. The suspension of benefits is equitably distributed across the participant and beneficiary populations because this suspension design is a reasonable application of the statutory factor in paragraph (d)(6)(ii)(B)(4) of this section (type of benefit).

    (7) Effective date of suspension made in combination with partition. [The text of the proposed amendments to § 1.432(e)(9)-1(d)(7) is the same as § 1.432(e)(9)-1T(d)(7) published elsewhere in this issue of the Federal Register.]

    (e) Benefit improvements—(1) Limitations on benefit improvements. This paragraph (e) sets forth rules for the application of section 432(e)(9)(E). A plan satisfies the criteria in section 432(e)(9)(E) only if, during the period that any suspension of benefits remains in effect, the plan sponsor does not implement any benefit improvement except as provided in this paragraph (e). Paragraph (e)(2) of this section describes limitations on a benefit improvement for participants and beneficiaries who are not yet in pay status. Paragraph (e)(3) of this section describes limitations on a benefit improvement for participants and beneficiaries who are in pay status. Paragraph (e)(4) of this section provides that the limitations in this paragraph (e) generally apply in addition to other limitations on benefit increases that apply to a plan. Paragraph (e)(5) of this section defines benefit improvement.

    (2) Limitations on benefit improvements for those not in pay status—(i) Equitable distribution for those in pay status and solvency projection. During the period that any suspension of benefits under a plan remains in effect, the plan sponsor may not increase the liabilities of the plan by reason of any benefit improvement for any participant or beneficiary who was not in pay status for any plan year before the plan year for which the benefit improvement takes effect, unless—

    (A) The present value of the total liabilities for a benefit improvement for participants and beneficiaries whose benefit commencement dates were before the first day of the plan year for which the benefit improvement takes effect is not less than the present value of the total liabilities for a benefit improvement for participants and beneficiaries who were not in pay status by that date;

    (B) The plan sponsor equitably distributes the benefit improvement among the participants and beneficiaries whose benefit commencement dates were before the first day of the plan year in which the benefit improvement is proposed to take effect; and

    (C) The plan actuary certifies that after taking into account the benefit improvement, the plan is projected to avoid insolvency indefinitely.

    (ii) Rules of application—(A) Present value determination. For purposes of paragraph (e)(2)(i)(A) of this section, the present value of the total liabilities for a benefit improvement is the present value as of the first day of the plan year in which the benefit improvement is proposed to take effect, using actuarial assumptions in accordance with section 431.

    (B) Factors relevant to equitable distribution. The evaluation of whether a benefit improvement is equitably distributed for purposes of paragraph (e)(2)(i)(B) of this section must take into account the relevant factors described in paragraph (d)(6)(ii)(B) of this section and the extent to which the benefits of the participants and beneficiaries were suspended.

    (C) Actuarial certification. The certification in paragraph (e)(2)(i)(C) of this section must be made using the standards described in paragraphs (d)(5)(ii), (iv), and (v) of this section, substituting the plan year that includes the effective date of the benefit improvement for the plan year that includes the effective date of the suspension.

    (iii) Special rule for certain benefit increases. The limitations of this paragraph (e) do not apply to a resumption of suspended benefits or plan amendment that increases liabilities with respect to participants and beneficiaries not in pay status by the first day of the plan year in which the benefit improvement took effect that—

    (A) The Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor, determines to be reasonable and which provides for only de minimis increases in the liabilities of the plan; or

    (B) Is required as a condition of qualification under section 401 or to comply with other applicable law, as determined by the Secretary of the Treasury.

    (3) Limitation on resumption of suspended benefits only for those in pay status. The plan sponsor may increase liabilities of the plan by eliminating some or all of the suspension that applies solely to participants and beneficiaries in pay status at the time of the resumption, provided that the plan sponsor equitably distributes the value of those resumed benefits among participants and beneficiaries in pay status, taking into account the relevant factors described in paragraph (d)(6)(ii)(B) of this section. A resumption of benefits that is described in this paragraph (e)(3) is not subject to the limitations on a benefit improvement under section 432(f) (relating to restrictions on benefit increases for plans in critical status).

    (4) Additional limitations. Except as provided in paragraph (e)(3) of this section, the limitations on a benefit improvement under this paragraph (e) are in addition to the limitations in section 432(f) and any other applicable limitations on increases in benefits imposed on a plan.

    (5) Definition of benefit improvement—(i) In general. For purposes of this paragraph (e), the term benefit improvement means, with respect to a plan, a resumption of suspended benefits, an increase in benefits, an increase in the rate at which benefits accrue, or an increase in the rate at which benefits become nonforfeitable under the plan.

    (ii) Effect of expiration of suspension. In the case of a suspension of benefits that expires as of a date that is specified in the plan amendment implementing the suspension, the resumption of benefits solely from the expiration of that period is not treated as a benefit improvement.

    (f) Notice requirements—(1) In general. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(1) is the same as § 1.432(e)(9)-1T(f)(1) published elsewhere in this issue of the Federal Register.]

    (2) Content of notice. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(2) is the same as § 1.432(e)(9)-1T(f)(2) published elsewhere in this issue of the Federal Register.]

    (3) Form and manner—(i) Timing. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(3)(i) is the same as § 1.432(e)(9)-1T(f)(3)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Method of delivery of notice—(A) Written or electronic delivery. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(3)(ii)(A) is the same as § 1.432(e)(9)-1T(f)(3)(ii)(A) published elsewhere in this issue of the Federal Register.]

    (B) No alternative method of delivery. A notice under this paragraph (f) must be provided in written or electronic form.

    (iii) Additional information in notice. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(3)(iii) is the same as § 1.432(e)(9)-1T(f)(3)(iii) published elsewhere in this issue of the Federal Register.]

    (iv) No false or misleading information. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(3)(iv) is the same as § 1.432(e)(9)-1T(f)(3)(iv) published elsewhere in this issue of the Federal Register.]

    (4) Other notice requirement. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(4) is the same as § 1.432(e)(9)-1T(f)(4) published elsewhere in this issue of the Federal Register.]

    (5) Examples. [The text of the proposed amendments to § 1.432(e)(9)-1(f)(5) is the same as § 1.432(e)(9)-1T(f)(5) published elsewhere in this issue of the Federal Register.]

    (g) Approval or denial of an application for suspension of benefits—(1) Application. [The text of the proposed amendments to § 1.432(e)(9)-1(g)(1) is the same as § 1.432(e)(9)-1T(g)(1) published elsewhere in this issue of the Federal Register.]

    (2) Solicitation of comments. [The text of the proposed amendments to § 1.432(e)(9)-1(g)(2) is the same as § 1.432(e)(9)-1T(g)(2) published elsewhere in this issue of the Federal Register.]

    (3) Approval or denial—(i) Deemed approval. [The text of the proposed amendments to § 1.432(e)(9)-1(g)(3)(i) is the same as § 1.432(e)(9)-1T(g)(3)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Notice of denial. [The text of the proposed amendments to § 1.432(e)(9)-1(g)(3)(ii) is the same as § 1.432(e)(9)-1T(g)(3)(ii) published elsewhere in this issue of the Federal Register.]

    (iii) Special rules for systemically important plans. [The text of the proposed amendments to § 1.432(e)(9)-1(g)(3)(iii) is the same as § 1.432(e)(9)-1T(g)(3)(iii) published elsewhere in this issue of the Federal Register.]

    (iv) Agreement to stay 225-day period. The Secretary of the Treasury and the plan sponsor may mutually agree in writing to stay the 225-day period described in paragraph (g)(3)(i) of this section.

    (4) Consideration of certain factors. In evaluating whether the plan sponsor has satisfied the requirement of paragraph (c)(3)(i)(A) of this section, the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor, will review the plan sponsor's consideration of each of the factors under paragraph (c)(3)(ii) of this section (and any other factor that the plan sponsor considered).

    (5) Standard for accepting plan sponsor determinations. In evaluating the plan sponsor's application, the Secretary of the Treasury will accept the plan sponsor's determinations in paragraph (c)(3) of this section unless the Secretary concludes, in consultation with the PBGC and the Secretary of Labor, that the determinations were clearly erroneous.

    (6) Plan-sponsor certifications with respect to plan amendments. The plan sponsor's application described in paragraph (g)(1) of this section will not be approved unless the plan sponsor certifies that if the plan sponsor receives final authorization to suspend as described in paragraph (h)(6) of this section with respect to the proposed benefit suspension (or, in the case of a systemically important plan, a proposed or modified benefit suspension), the plan sponsor chooses to implement the suspension, and the plan sponsor adopts the amendment described in paragraph (a)(1) of this section, then it will timely amend the plan to provide that—

    (i) If the plan sponsor fails to make the annual determinations under section 432(e)(9)(C)(ii), then the suspension of benefits will cease as of the first day of the first plan year following the plan year in which the plan sponsor fails to make the annual-plan-sponsor determinations in paragraph (c)(4) of this section; and

    (ii) Any future benefit improvement must satisfy the requirements of section 432(e)(9)(E).

    (7) Special Master. [The text of the proposed amendments to § 1.432(e)(9)-1(g)(7) is the same as § 1.432(e)(9)-1T(g)(7) published elsewhere in this issue of the Federal Register.]

    (h) Participant vote on proposed benefit reduction—(1) Requirement for vote—(i) In general. [The text of the proposed amendments to § 1.432(e)(9)-1(h)(1)(i) is the same as § 1.432(e)(9)-1T(h)(1)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Communication by plan sponsor. The plan sponsor must take reasonable steps to inform eligible voters about the proposed suspension and the vote. This includes all eligible voters who may be contacted by reasonable efforts in accordance with paragraph (f)(1) of this section. Anyone whom the plan sponsor has been able to locate through these means (or who has otherwise been located by the plan sponsor) must be sent a ballot described in paragraph (h)(3) of this section.

    (2) Administration of vote. [Reserved]

    (3) Ballots—(i) In general. The plan sponsor must provide a ballot for the vote that includes the following—

    (A) A description of the proposed suspension and its effect, including the effect of the suspension on each category or group of individuals affected by the suspension and the extent to which they are affected;

    (B) A description of the factors considered by the plan sponsor in designing the benefit suspension, including but not limited to the factors in paragraph (d)(6)(ii) of this section;

    (C) A description of whether the suspension will remain in effect indefinitely or will expire by its own terms (and, if it will expire by its own terms, when that will occur);

    (D) A statement from the plan sponsor in support of the proposed suspension;

    (E) A statement in opposition to the proposed suspension compiled from comments received pursuant to the solicitation of comments pursuant to paragraph (g)(2) of this section;

    (F) A statement that the proposed suspension has been approved by the Secretary of the Treasury, in consultation with the PBGC and the Secretary of Labor;

    (G) A statement that the plan sponsor has determined that the plan will become insolvent unless the proposed suspension takes effect (including the year in which insolvency is projected to occur without a suspension of benefits), and an accompanying statement that this determination is subject to uncertainty;

    (H) A statement that insolvency of the plan could result in benefits lower than benefits paid under the proposed suspension and a description of the projected benefit payments in the event of plan insolvency;

    (I) A statement that insolvency of the PBGC would result in benefits lower than benefits otherwise paid in the case of plan insolvency;

    (J) A statement that the plan's actuary has certified that the plan is projected to avoid insolvency, taking into account the proposed suspension of benefits (and, if applicable, a proposed partition plan), and an accompanying statement that the actuary's projection is subject to uncertainty;

    (K) A statement that the suspension will go into effect unless a majority of all eligible voters vote to reject the suspension and that, therefore, a failure to vote has the same effect on the outcome of the vote as a vote in favor of the suspension;

    (L) A copy of the individualized estimate that was provided as part of the earlier notice described in section 432(e)(9)(F) (or, if that individualized estimate is no longer accurate, a corrected version of that estimate); and

    (M) A description of the voting procedures, including the deadline for voting.

    (ii) Additional rules. [The text of the proposed amendments to § 1.432(e)(9)-1(h)(3)(ii) is the same as § 1.432(e)(9)-1T(h)(3)(ii) published elsewhere in this issue of the Federal Register.]

    (iii) Ballot must be approved. [The text of the proposed amendments to § 1.432(e)(9)-1(h)(3)(iii) is the same as § 1.432(e)(9)-1T(h)(3)(iii) published elsewhere in this issue of the Federal Register.]

    (4) Implementing suspension following vote—(i) In general. [The text of the proposed amendments to § 1.432(e)(9)-1(h)(4)(i) is the same as § 1.432(e)(9)-1T(h)(4)(i) published elsewhere in this issue of the Federal Register.]

    (ii) Effect of not sending ballot. Any eligible voters to whom ballots have not been provided (because the individuals could not be located) will be treated as voting to reject the suspension at the same rate (in other words, in the same percentage) as those to whom ballots have been provided.

    (5) Systemically important plans. [The text of the proposed amendments to § 1.432(e)(9)-1(h)(5) is the same as § 1.432(e)(9)-1T(h)(5) published elsewhere in this issue of the Federal Register.]

    (6) Final authorization to suspend. [The text of the proposed amendments to § 1.432(e)(9)-1(h)(6) is the same as § 1.432(e)(9)-1T(h)(6) published elsewhere in this issue of the Federal Register.]

    (i) [Reserved].

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2015-14948 Filed 6-17-15; 11:15 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2015-0328] RIN 1625-AA08 Special Local Regulations for Marine Events, Manasquan River; Seaside Park, New Jersey AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard is temporarily changing the enforcement date of the special local regulation for the recurring New Jersey Offshore Grand Prix, held in the waters of the Manasquan River and Atlantic Ocean, near Seaside Park, New Jersey. The change of enforcement date for the special local regulation is necessary to provide for the safety of life on navigable waters during the event. This action will restrict vessel traffic in the waters of the Manasquan River and Atlantic Ocean near Seaside Park, New Jersey, from 10 a.m. to 5 p.m. on July 9, 2015, and July 10, 2015.

    DATES:

    Comments and related material must be received by the Coast Guard on or before June 26, 2015.

    ADDRESSES:

    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 Lieutenant Brennan Dougherty, U.S. Coast Guard, Sector Delaware Bay, Chief Waterways Management Division, Coast Guard; telephone (215) 271-4851, 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 COTP Captain of the Port 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 [USCG-2015-0328] 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 (USCG-2015-0328) 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. 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 regulation for this marine event may be found at 33 CFR 100.501, Table to § 100.501, section (a), line “7”.

    C. Basis and Purpose

    The legal basis and authorities for this rulemaking establishing a special local regulation are found in 33 U.S.C. 1233, which authorize the Coast Guard to establish and define special local regulations.

    The purpose of this special local regulation is to provide for the safety of participants, spectator craft, and other vessels transiting the event area while the Grand Prix is occurring.

    D. Discussion of Proposed Rule

    The Coast Guard has previously published a list of annual marine events within the Fifth Coast Guard District and special local regulation locations at 33 CFR 100.501. The Table to § 100.501 identifies special local regulations by COTP zone, with the COTP Delaware Bay zone listed in section “(a.)” of the Table. The Table to § 100.501, at section (a.) event Number “7”, describes the enforcement date and regulated location for this marine event.

    The date listed in the Table has the marine event on the third Wednesday and Thursday of July. However, this temporary rule changes the marine event date to July 9, 2015 and July 10, 2015, to reflect the actual date of the event for this year.

    The Coast Guard proposes to temporarily suspend the regulation listed in Table to § 100.501, section (a) event Number “7”, and insert this temporary regulation at Table to § 100.501, at section (a.) as event Number “15”, in order to reflect that the special local regulation will be effective and enforced from 10:00 a.m. until 5:00 p.m. on July 9, 2015 and July 10, 2015. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.

    The regulated area of this special local regulation includes all the waters of the Manasquan River from the New York and Long Branch Railroad Bridge to Manasquan Inlet, together with all of the navigable waters of the United States from Asbury Park, New Jersey, latitude 40°14′00″ N; southward to Seaside Park, New Jersey latitude 39°55′00″ N, from the New Jersey shoreline seaward to the limits of the Territorial Sea as defined in 33 CFR 2.22.

    A fleet of spectator vessels is anticipated to gather nearby to view the marine event. Due to the need for vessel control during the marine event vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Under provisions of 33 CFR 100.501, during the enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

    The Coast Guard may assign an event patrol, as described in 33 CFR 100.40, to each regulated event listed in the table. Additionally, a Patrol Commander may be assigned to oversee the patrol. The event patrol and Patrol Commander may be contacted on VHF-FM Channel 16. During the event, the Coast Guard Patrol Commander may forbid and control the movement of all vessels in the regulated area(s). When hailed or signaled by an official patrol vessel, a vessel in these areas shall immediately comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard Patrol Commander may terminate the event, or the operation of any vessel participating in the event, at any time it is deemed necessary for the protection of life or property. Coast Guard Sector Delaware Bay will notify the public by broadcast notice to mariners at least one hour prior to the times of enforcement.

    E. Regulatory Analyses

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

    1. Regulatory Planning and Review

    This proposed 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. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the Special local regulation to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the special local regulation with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced for only the duration of the boat race.

    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 term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

    This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to anchor or transit along a portion of Manasquan River and Inlet, as well as the New Jersey shore from Ashbury Park and Seaside Park, New Jersey to the Territorial seas, on July 9, 2015 and July 10, 2015 from 10:00 a.m. to 5:00 p.m., unless cancelled earlier by the Captain of the Port.

    This special local regulation will not have a significant economic impact on a substantial number of small entities for the following reason: Vessel traffic will be allowed to pass through the zone with permission of the Coast Guard Captain of the Port, Delaware Bay, or his designated representative and the special local regulation is limited in size and duration. The Coast Guard will issue maritime advisories widely available to all waterway users.

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

    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 proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    4. Collection of Information

    This proposed 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 proposed 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 proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    8. Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

    11. Indian Tribal Governments

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

    12. Energy Effects

    This proposed rule 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 proposed 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 implementation of regulations within 33 CFR part 100, applicable to special local regulations on the navigable waterways. This zone will temporarily restrict vessel traffic from transiting the waters of the Atlantic Ocean adjacent to Ocean City, NJ, in order to protect the safety of life and property on the waters for the duration of the air show. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    List of Subjects in 33 CFR Part 100

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

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233.

    2. In the Table to § 100.501, suspend lines No. (a.)7; and 3. Add line No. (a.)15 to the Table to § 100.501 to read as follows: (a.) Coast Guard Sector Delaware Bay—COTP Zone No. Date Event Sponsor Location 15 July 9th, 10th New Jersey Offshore Grand Prix Offshore Performance Assn. & New Jersey Offshore Racing Assn The waters of the Manasquan River from the New York and Long Branch Railroad Bridge to Manasquan Inlet, toget- with all of the navigable waters of the United States from Asbury Park, New Jersey, latitude 40°14′00″ N; southward to Seaside Park, New Jersey latitude 39°55′00″ N, from the New Jersey shoreline seaward to the limits of the Territorial Sea. The race course area extends from Asbury Park to Seaside Park from the shoreline, seaward to a distance of 8.4 nautical miles. Dated: June 2, 2015. B.A. Cooper, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
    [FR Doc. 2015-15185 Filed 6-18-15; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0270; FRL-9929-05-Region 7] Partial Approval and Disapproval of Air Quality State Implementation Plans (SIP); State of Nebraska; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to partially approve and partially disapprove elements of a State Implementation Plan (SIP) submission from the State of Nebraska addressing the applicable requirements of Clean Air Act (CAA) section 110 for the 2008 National Ambient Air Quality Standards (NAAQS) for Ozone (O3), which requires that each state adopt and submit a SIP to support implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by EPA. These SIPs are commonly referred to as “infrastructure” SIPs. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. EPA is proposing to disapprove Nebraska's SIP as it relates to section 110 with respect to visibility, for the 2008 O3 NAAQS.

    DATES:

    Comments must be received on or before July 20, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0270, by one of the following methods:

    1. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Mail: Mr. Gregory Crable, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, Air and Waste Management Division, 11201 Renner Boulevard, Lenexa, Kansas 66219.

    4. Hand Delivery or Courier: Deliver your comments to Mr. Gregory Crable, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, Air and Waste Management Division, 11201 Renner Boulevard, Lenexa, Kansas 66219.

    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2015-0270. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or email information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and should be free of any defects or viruses.

    Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., 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 at http://www.regulations.gov or in hard copy at U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219 from 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Gregory Crable, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-7391; fax number: (913) 551-7065; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following questions:

    I. What is a section 110(a)(1) and (2) infrastructure SIP? II. What are the applicable elements under sections 110(a)(1) and (2)? III. What is EPA's approach to the review of Infrastructure SIP submissions? IV. What is EPA's evaluation of how the State addressed the relevant elements of Sections 110(a)(1) and (2)? V. What action is EPA proposing? VI. Statutory and Executive Order Review I. What is a section 110(a)(1) and (2) infrastructure SIP?

    Section 110(a)(1) of the CAA requires, in part, that states make a SIP submission to EPA to implement, maintain and enforce each of the NAAQS promulgated by EPA after reasonable notice and public hearings. Section 110(a)(2) includes a list of specific elements that such infrastructure SIP submissions must address. SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS. These SIP submissions are commonly referred to as “infrastructure” SIPs.

    II. What are the applicable elements under sections 110(a)(1) and (2)?

    On March 12, 2008, EPA promulgated a revised NAAQS for ozone based on 8-hour average concentrations. The level of the 2008 8-hour ozone NAAQS (hereafter the 2008 O3 NAAQS) was revised from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436).

    For the 2008 O3 NAAQS, states typically have met many of the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. Nevertheless, pursuant to section 110(a)(1), states must review and revise, as appropriate, their existing SIPs to ensure that the SIPs are adequate to address the 2008 O3 NAAQS. To assist states in meeting this statutory requirement, EPA issued guidance on September 13, 2013 (2013 Guidance), addressing the infrastructure SIP elements required under section 110(a)(1) and (2) for the 2008 O3 NAAQS.1 EPA will address these elements below under the following headings: (A) Emission limits and other control measures; (B) Ambient air quality monitoring/data system; (C) Program for enforcement of control measures (prevention of significant deterioration) (PSD)), New Source Review for nonattainment areas, and construction and modification of all stationary sources; (D) Interstate and international transport; (E) Adequate authority, resources, implementation, and oversight; (F) Stationary source monitoring system; (G) Emergency authority; (H) Future SIP revisions; (I) Nonattainment areas; (J) Consultation with government officials, public notification, prevention of significant deterioration (PSD), and visibility protection; (K) Air quality and modeling/data; (L) Permitting fees; and (M) Consultation/participation by affected local entities.

    1 Stephen D. Page, Director, Air Quality Policy Division, Office of Air Quality Planning and Standards, “Guidance on Infrastructure State Implementation Plan (SIP) Elements Under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum to EPA Regional Air Division Directors, Regions I-X, September 13, 2013.

    III. What is EPA's approach to the review of infrastructure SIP submissions?

    EPA is acting upon the February 11, 2013, SIP submission from Nebraska that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 O3 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

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

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

    2 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.3 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.4 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

    3 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    4 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.5 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.6

    5 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    6 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.7

    7 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

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

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

    Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.8 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).9 EPA developed the 2013 Guidance document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within the 2013 guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.10 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

    8 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    9 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    10 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by this litigation (which culminated in the Supreme Court's recent decision, 134 SCt. 1584), EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

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

    As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and New Source Review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

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

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

    11 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

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

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

    With respect to element[s] C and J, EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Nebraska has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

    On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise Federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.

    At present, EPA has determined the Nebraska's SIP is sufficient to satisfy elements C, D(i)(II), and J with respect to GHGs because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Nebraska's PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy elements C, (D)(i)(II), and J. The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect EPA's proposed approval of Nebraska's infrastructure SIP as to the requirements of elements C, D(i)(II), and J.

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

    12 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    13 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    14 See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions).

    IV. What is EPA's evaluation of how the State addressed the relevant elements of sections 110(a)(1) and (2)?

    EPA Region 7 received Nebraska's infrastructure SIP submission for the 2008 O3 standard on February 11, 2013. The SIP submission became complete as a matter of law on August 11, 2013. EPA has reviewed Nebraska's infrastructure SIP submission and the applicable statutory and regulatory authorities and provisions referenced in those submissions or referenced in Nebraska's SIP. Below is EPA's evaluation of how the state addressed the relevant elements of section 110(a)(2) for the 2008 O3 NAAQS.

    (A) Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters as needed to implement, maintain and enforce each NAAQS.15

    15 The specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to the timing requirements of section 172, not the timing requirement of section 110(a)(1). Thus, section 110(a)(2)(A) does not require that states submit regulations or emissions limits specifically for attaining the 2010 SO2 NAAQS. Those SIP provisions are due as part of each state's attainment plan, and will be addressed separately from the requirements of section 110(a)(2)(A). In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

    The State of Nebraska's statutes and Air Quality Regulations authorize the Nebraska Department of Environmental Quality (NDEQ) to regulate air quality and implement air quality control regulations. Section 81-1504 of the Nebraska Revised Statutes authorizes NDEQ to act, among other things, as the state air pollution control agency for all purposes of the CAA and to develop comprehensive programs for the prevention, control and abatement of new or existing pollution to the air of the state. Air pollution is defined in Section 81-1502 of the Nebraska Revised Statutes as the presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in such quantities and of such duration as are or may tend to be injurious to human, plant, or animal life, property, or the conduct of business.

    Section 81-1505(1) of the Nebraska Revised Statutes authorizes the Nebraska Environmental Quality Council (EQC) to adopt and promulgate rules which set air standards that will protect public health and welfare. The EQC is also authorized to classify air contaminant sources according to levels and types of discharges, emissions or other characteristics.

    The 2008 O3 NAAQS specified in 40 CFR part 50.10 was proposed and adopted into Nebraska title 129 chapter 4, section 005 of the Nebraska Administrative Code, by the EQC on June 20, 2013, with an effective date of December 9, 2013.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that the Nebraska SIP adequately addresses the requirements of section 110(a)(2)(A) for the 2008 O3 NAAQS and is proposing to approve this element of the February 11, 2013, SIP submission.

    (B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collection and analysis of ambient air quality data, and making these data available to EPA upon request.

    To address this element, section 81-1505(12)(o) of the Nebraska Revised Statutes provides the enabling authority necessary for Nebraska to fulfill the requirements of section 110(a)(2)(B). This provision gives the EQC the authority to promulgate rules and regulations concerning the monitoring of emissions. Nebraska complies with 40 CFR part 50, appendix P with regards to the regulatory monitoring, compiling, and analysis of data on ambient air quality relative to the 2008 ozone 8-hour NAAQS. The Air Quality Division within NDEQ implements these requirements. Along with their other duties, the monitoring program within NDEQ's Air Compliance and Enforcement Program collects air monitoring data, quality assures the results, and reports the data. In accordance with the requirements of 40 CFR part 58 appendix D, section 4.1(a), Nebraska operates four O3 monitors, three in the Omaha MSA and one in the Lincoln MSA.

    NDEQ develops and administers the ambient air monitoring network plan and submits it annually to EPA for approval, including the plan for its O3 monitoring network, as required by 40 CFR 58.10. Prior to submission to EPA, Nebraska makes the plans available for public review on NDEQ's Web site. See, http://deq.ne.gov/Publica.nsf/Pubs_Air_Amb.xsp, for NDEQ's 2014 Ambient Air Monitoring Network Plan. This Plan includes, among other things, the locations for the O3 monitoring network. On February 9, 2015, EPA approved Nebraska's 2014 ambient air network monitoring plan. NDEQ also conducts five-year monitoring network assessments, including the O3 monitoring network, as required by 40 CFR 58.10(d). Title 129, chapter 4, section 005 of the NAC requires that attainment with the O3 standard be determined in accordance with the applicable Federal regulations in 40 CFR part 50, appendix S. Nebraska submits air quality data to EPA's Air Quality System (AQS) quarterly, pursuant to the provisions of work plans developed in conjunction with EPA grants to the state.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that the Nebraska SIP adequately addresses the requirements of section 110(a)(2)(B) for the 2008 O3 NAAQS and is proposing to approve this element of the February 11, 2013, SIP submission.

    (C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources): Section 110(a)(2)(C) requires states to include the following three elements in the SIP: (1) A program providing for enforcement of all SIP measures described in section 110(a)(2)(A); (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS (i.e., state-wide permitting of minor sources); and (3) a permit program to meet the major source permitting requirements of the CAA (for areas designated as attainment or unclassifiable for the NAAQS in question).16

    16 As discussed in further detail below, this infrastructure SIP rulemaking will not address the Kansas program for nonattainment area related provisions, since EPA considers evaluation of these provisions to be outside the scope of infrastructure SIP actions.

    (1) Enforcement of SIP Measures. With respect to enforcement of requirements of the SIP, the Nebraska statutes provide authority to enforce the requirements of section 81-1504(1) of the Nebraska Revised Statutes provide authority for NDEQ to enforce the requirements of the Nebraska Environmental Protection Act, and any regulations, permits, or final compliance orders issued under the provisions of that law. In addition, section 81-1504(7) authorizes NDEQ to issue orders prohibiting or abating discharges of waste into the air and requiring the modification, extension or adoption of remedial measures to prevent, control, or abate air pollution. Section 81-1507 authorizes NDEQ to commence an enforcement action for any violations of the Environmental Protection Act, any rules or regulations promulgated thereunder, or any orders issued by NDEQ. This enforcement action can not only seek civil penalties, but also require that the recipient take corrective action to address the violation. See section 81-1507(1) and 81-1508.02. Section 81-1508.01 provides for criminal penalties for knowing or willful violations of the statute, regulations or permit conditions, in addition to other acts described in that section.

    (2) Minor New Source Review. Section 110(a)(2)(C) also requires that the SIP include measures to regulate construction and modification of stationary sources to protect the NAAQS. With respect to smaller state-wide minor sources (Nebraska's major source permitting program is discussed in (3) below), Nebraska has a program under title 129, chapter 17 of the NAC that requires such sources to first obtain a construction permit from NDEQ. The permitting process is designed to ensure that new and modified sources will not interfere with NAAQS attainment. NDEQ has the authority to require the source applying for the permit to undergo an air quality impact analysis. If NDEQ determines that emissions from a constructed or modified source interfere with attainment of the NAAQS, it may deny the permit until the source makes the necessary changes to obviate the objections to the permit issuance. See chapter 17, sections 008 and 009 of the NAC.

    EPA has determined that Nebraska's minor new source review (NSR) program adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions of NAAQS pollutants. EPA has also determined that certain provisions of the state's minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act likely do not meet all the requirements found in EPA's regulations implementing that provision. See 40 CFR 51.160-51.164. EPA previously approved Nebraska's minor NSR program into the SIP, and at the time there was no objection to the provisions of this program. See 37 FR 10842 (May 31, 1972) and 60 FR 372 (January 4, 1995). Since then, the state and EPA have relied on the existing state minor NSR program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS.

    In this action, EPA is proposing to approve Nebraska's infrastructure SIP for the 2008 O3 NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. In this action, EPA is not proposing to approve or disapprove the state's existing minor NSR program to the extent that it is inconsistent with EPA's regulations governing this program. EPA has maintained that the CAA does not require that new infrastructure SIP submissions correct any defects in existing EPA-approved provisions of minor NSR programs in order for EPA to approve the infrastructure SIP for element (C) (e.g., 76 FR 41076-76 FR 41079).

    (3) Prevention of Significant Deterioration (PSD) permit program. Nebraska also has a program approved by EPA as meeting the requirements of part C, relating to prevention of significant deterioration of air quality. In order to demonstrate that Nebraska has met this sub-element, this PSD program must cover requirements not just for the 2008 O3 NAAQS, but for all other regulated NSR pollutants as well.

    Nebraska's implementing rule, title 129, chapter 19, Prevention of Significant Deterioration of Air Quality, incorporates the relevant portions of the Federal rule, 40 CFR 52.21 by reference. In this action, EPA is not proposing to approve or disapprove any state rules with regard to NSR reform requirements. EPA will act on NSR reform submittals through a separate rulemaking process. For Nebraska, we have previously approved Nebraska's NSR reform rules for attainment areas, see 76 FR 15852, March 22, 2011.

    The Nebraska SIP also contains a permitting program for major sources and modifications in nonattainment areas (see title 129, chapter 17, section 013). This section is currently not applicable to Nebraska because all areas of Nebraska are currently in attainment with the NAAQS. Even if it were applicable, the SIP's discussion of nonattainment areas is not addressed in this rulemaking (see discussion of the section 110(a)(2)(I) requirements for nonattainment areas, below).

    With respect to the PSD program, title 129, chapter 19, of the NAC provides for the permitting of construction of a new major stationary source or a major modification of an existing major stationary source. Further, chapter 19, section 010 of the NAC establishes threshold emissions for establishing whether the construction project is a major source of regulated NSR pollutants, including but not limited to O3.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that the Nebraska SIP adequately addresses the requirements of section 110(a)(2)(C) for the 2008 O3 NAAQS and is proposing to approve this element of the February 11, 2013, SIP submission.

    (D) Interstate and international transport: Section 110(a)(2)(D)(i) includes four requirements referred to as prongs 1 through 4. Prongs 1 and 2 are provided at section 110(a)(2)(D)(i)(I); Prongs 3 and 4 are provided at section 110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of any NAAQS in another state. Section 110(a)(2)(D)(i)(II) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required of any other state to prevent significant deterioration of air quality or to protect visibility.

    With regard to 110(a)(2)(D)(i)(I)—prongs 1 and 2, EPA is not proposing action at this time. The Agency plans to take action on this portion of the SIP consistent with Consent Decree 4:14-cv-03198-YGR.

    With respect to the PSD requirements of section 110(a)(2)(D)(i)(II)—prong 3, EPA notes that Nebraska's satisfaction of the applicable infrastructure SIP PSD requirements for attainment/unclassifiable areas of the 1997 and 2006 PM2.5 NAAQS have been detailed in the section addressing section 110(a)(2)(C). As discussed above for element (C)(3), EPA has previously approved Nebraska's NSR reform rules for attainment areas, and, as previously stated, Nebraska currently has no nonattainment areas (See 76 FR 15852, March 22, 2011). EPA also notes that the proposed action in that section related to PSD is consistent with the proposed approval related to PSD for section 110(a)(2)(D)(i)(II). Therefore, EPA is proposing to approve the PSD requirements of section 110(a)(2)(D)(i)(II)—prong 3.

    EPA is proposing to disapprove Nebraska's SIP as it relates to section 110(a)(2)(D)(i)(II) with respect to visibility, or “prong 4” of the requirements of section 110(a)(2)(D). In its SIP submittal, Nebraska refers to its submittal of a SIP revision in July 2011 addressing the regional haze requirements. An approved regional haze SIP that fully meets the regional haze requirements in 40 CFR 51.308 would satisfy the requirements of section 110(a)(2)(D)(i)(II) for visibility protection as such a SIP would ensure that emissions from the state will not interfere with measures required to be included in other state SIPs to protect visibility. EPA has not, however, fully approved Nebraska's Regional Haze SIP.

    On July 6, 2012, after reviewing Nebraska's submittal of a Regional Haze SIP, EPA published the “Approval, Disapproval and Promulgation of Implementation Plans; State of Nebraska; Regional Haze State Implementation Plan; Federal Implementation Plan for Best Available Retrofit Technology Determination; Final Rule” (77 FR 40150). In that action, EPA partially approved the SIP revision as meeting the applicable regional haze requirements set forth in sections 169A and 169B of the Act and in the Federal regulations codified at 40 CFR 51. 308, and the requirements of 40 CFR part 51, subpart F and appendices V and Y. EPA disapproved the SO2 BART determinations for units 1 and 2 of the Gerald Gentleman Station (GGS) because they do not comply with EPA's regulations. EPA also disapproved Nebraska's long-term strategy insofar as it relied on the deficient SO2 BART determination at GGS. Instead, EPA finalized a FIP relying on the Transport Rule as an alternative to BART for SO2 emissions from GGS to address these deficiencies. EPA approved Nebraska's NOX BART determination at GGS as SIP-strengthening and approved the CSAPR FIP as satisfying the requirements for the Regional Haze Rule with respect to NOX. Given this, EPA cannot approve Nebraska's SIP as meeting the prong 4 requirements based on the absence of a fully approved Regional Haze SIP.

    In the absence of a fully approved Regional Haze SIP, a state may meet the requirements of prong 4 by showing that its SIP contains adequate provisions to prevent emission from within the state from interfering with other states' measures to protect visibility. See, e.g. 76 FR 8326 (February 14, 2011). Nebraska did not, however, provide a demonstration in its infrastructure SIP that emissions within its jurisdiction do not interfere with other states' plans to protect visibility.

    Section 110(a)(2)(D)(ii) also requires that the SIP insure compliance with the applicable requirements of sections 126 and 115 of the CAA, relating to interstate and international pollution abatement, respectively. Section 126(a) of the CAA requires new or modified sources to notify neighboring states of potential impacts from sources within the state. Although Nebraska sources have not been identified by EPA as having any interstate or international impacts under section 126 or section 115 in any pending actions relating to the 2008 O3 NAAQS, the Nebraska regulations address abatement of the effects of interstate pollution. Title 129, chapter 14, section 010.03 of the NAC requires NDEQ, after receiving a complete PSD permit application, to notify EPA, as well as officials and agencies having cognizance where the proposed construction is to occur. This includes state or local air pollution control agencies and the chief executives of the city and county where the source would be located; any comprehensive regional land use planning agency; and any state, Federal Land Manager, or Indian governing body whose lands may be affected by emissions from the source or modification. Finally, we believe that Nebraska could use the same statutory authorities previously discussed, primarily section 81-1505 of the Nebraska Revised Statutes, to respond to any future findings with respect to the 2008 O3 NAAQS.

    Section 115 of the CAA authorizes EPA to require a state to revise its SIP under certain conditions to alleviate international transport into another country. There are no final findings under section 115 of the CAA against Nebraska with respect to any air pollutant. Thus, the state's SIP does not need to include any provisions to meet the requirements of section 115.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA is not proposing action on section 110(a)(2)(D)(i)(I)—prongs 1 and 2 and is disapproving 110(a)(2)(D)(i)(II)—prong 4. However, EPA believes that Nebraska has the adequate infrastructure needed to address, 110(a)(2)(D)(i)(II)—prong 3 and 110 (a)(2)(D)(ii) for the 2008 O3 NAAQS and is proposing to approve the February 11, 2013, submission regarding the 2008 O3 infrastructure SIP requirements for those elements as indicated above.

    (E) Adequate authority, resources, implementation, and oversight: Section 110(a)(2)(E) requires that SIPs provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) will have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) requirements that the state comply with the requirements relating to state boards, pursuant to section 128 of the CAA; and (3) necessary assurances that the state has responsibility for ensuring adequate implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.

    (1) Section 110(a)(2)(E)(i) requires states to establish that they have adequate personnel, funding and authority. With respect to adequate authority, we have previously discussed Nebraska's statutory and regulatory authority to implement the 2008 O3 NAAQS, primarily in the discussion of section 110(a)(2)(A) above. Neither Nebraska nor EPA has identified any legal impediments in the state's SIP to implementation of the NAAQS.

    With respect to adequate resources, NDEQ asserts that it has adequate personnel to implement the SIP. State statutes provide NDEQ the authority to establish bureaus, divisions and/or sections to carry out the duties and powers granted by the Nebraska state law to address the control of air pollution, to be administered by full-time salaried, bureau, division or section chiefs. See Nebraska Revised Statutes section 81-1504(14). NDEQ's Air Quality Division is currently divided into the Permitting Section, the Compliance Section, and the Program Planning and Development Unit.

    With respect to funding, the Nebraska statutes require the EQC to establish various fees for sources, in order to fund the reasonable costs of implementing various air pollution control programs. For example, section 81-1505(12)(e) of the Nebraska Revised Statutes requires the EQC to establish a requirement for sources to pay fees sufficient to pay the reasonable direct and indirect costs of developing and administering the air quality operating permit program. These costs include overhead charges for personnel, equipment, buildings and vehicles; enforcement costs; costs of emissions and ambient monitoring; and modeling analyses and demonstrations. See Nebraska Revised Statutes section 81-1505.04(2)(b). Similarly, section 81-1505(12)(a) requires the EQC to establish application fees for air contaminant sources seeking to obtain a permit prior to construction.

    Section 81-1505.05 of the Nebraska Revised Statutes provides that all fees collected pursuant to section 81-1505.04 be credited to the “Clean Air Title V Cash Fund” to be used solely to pay for the direct and indirect costs required to develop and administer the air quality permit program. Similarly, section 81-1505.06 provides that all fees collected pursuant to section 81-1505(12) be deposited in the “Air Quality Permit Cash Fund.”

    Nebraska uses funds in the non-Title V subaccounts, along with General Revenue funds and EPA grants under, for example, sections 103 and 105 of the Act, to fund the programs. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among others, implement the SIP.

    (2) Conflict of interest provisions—section 128. Section 110(a)(2)(E)(ii) requires that each state SIP meet the requirements of section 128, relating to representation on state boards and conflicts of interest by members of such boards. Section 128(a)(1) requires that any board or body which approves permits or enforcement orders under the CAA must have at least a majority of members who represent the public interest and do not derive any “significant portion” of their income from persons subject to permits and enforcement orders under the CAA. Section 128(a)(2) requires that members of such a board or body, or the head of an agency with similar powers, adequately disclose any potential conflicts of interest.

    On October 21, 2014, EPA approved Nebraska's SIP revision addressing section 128 requirements. For a detailed analysis concerning Nebraska's section 128 provisions, see EPA's approval of Nebraska's 2008 Lead infrastructure SIP (79 FR 62832).

    (3) With respect to assurances that the state has responsibility to implement the SIP adequately when it authorizes local or other agencies to carry out portions of the plan, section 81-1504(18) of the Nebraska Revised Statutes grants NDEQ the authority to encourage local units of government to handle air pollution problems within their own jurisdictions. NDEQ may delegate, by contract with governmental subdivisions which have adopted air pollution control programs, the enforcement of state-adopted air pollution control regulations within a specified region surrounding the jurisdictional area of the governmental subdivision. See section 81-1504(23). However, the Nebraska statutes also retain authority in NDEQ to carry out the provisions of state air pollution control law. Section 81-1504(1) gives NDEQ “exclusive general supervision” of the administration and enforcement of the Nebraska Environmental Protection Act. In addition, section 81-1504(4) designates NDEQ as the air pollution control agency for the purposes of the CAA.

    The State of Nebraska relies on two local agencies for assistance in implementing portions of the air pollution control program: Lincoln/Lancaster County Health Department and Omaha Air Quality Control. NDEQ oversees the activities of these local agencies to ensure adequate implementation of the plan. NDEQ utilizes sub-grants to the local agencies to provide adequate funding, and as an oversight mechanism. EPA conducts reviews of the local program activities in conjunction with its oversight of the state program.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS and relevant statutory and regulatory authorities and provisions referenced in these submissions or referenced in Nebraska's SIP, EPA believes that Nebraska has the adequate infrastructure needed to address section 110(a)(2)(E) for the 2008 O3 NAAQS submitted and is proposing to approve the February 11, 2013 submission regarding the 2008 O3 infrastructure SIP requirements for this element.

    (F) Stationary source monitoring system: Section 110(a)(2)(F) requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports. Each SIP shall require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources, to monitor emissions from such sources. The SIP shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and requires that the state correlate the source reports with emission limitations or standards established under the CAA. These reports must be made available for public inspection at reasonable times.

    To address this element, section 81-1505(12)(o) of the Nebraska Revised Statutes gives the EQC the authority to promulgate rules and regulations for air pollution control, including requirements for owner or operator testing and monitoring of emissions. It also gives the EQC the authority to promulgate similar rules and regulations for the periodic reporting of these emissions. See section 81-1505(12)(l). Title 129 chapter 34, section 002 of the NAC incorporates various EPA reference methods for testing source emissions, including methods for O3. The Federal test methods in 40 CFR part 60, appendix A are referenced in title 129, chapter 34 section 002.02.

    The Nebraska regulations also require that all Class I and Class II operating permits include requirements for monitoring of emissions. See title 129, chapter 8, sections 004.01 and 015 of the NAC. Furthermore, title 129, chapter 34, section 001 of the NAC allows NDEQ to order an emissions source to make or have tests made to determine the rate of contaminant emissions from the source whenever NDEQ has reason to believe that the existing emissions from the source exceed the applicable emissions limits.

    The Nebraska regulations also impose reporting requirements on sources subject to permitting requirements. See title 129, chapter 6, section 001; chapter 8, sections 004.03 and 015 of the NAC. Nebraska makes all monitoring reports submitted as part of Class I or Class II permit a publicly available document. Although sources can submit a claim of confidentiality for some of the information submitted, Nebraska regulations specifically exclude emissions data from being entitled to confidential protection. See title 129, chapter 7, section 004 of the NAC. Nebraska uses this information to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with emission regulations and additional EPA requirements.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that Nebraska has the adequate infrastructure needed to address section 110(a)(2)(F) for the 2008 O3 NAAQS submitted and is proposing to approve the February 11, 2013, submission regarding the infrastructure SIP requirements for this element.

    (G) Emergency authority: Section 110(a)(2)(G) requires SIPs to provide for authority to address activities causing imminent and substantial endangerment to public health or welfare or the environment (comparable to the authorities provided in section 303 of the CAA), and to include contingency plans to implement such authorities as necessary.

    Section 81-1507(4) of the Nebraska Revised Statutes states that whenever the Director of NDEQ finds that an emergency exists requiring immediate action to protect the public health and welfare, he or she may issue an order requiring that such action be taken as the Director deems necessary to meet the emergency. Title 129, chapter 38, section 003 of the NAC states that the conditions justifying the proclamation of an air pollution alert, air pollution warning, or air pollution emergency exist whenever the Director determines that the accumulation of air pollutants in any place is attaining or has attained levels which could, if such levels are sustained or exceeded, lead to a substantial threat to the health of persons. This regulation also establishes action levels for various air pollutants. The action levels (which include “Air Pollution Alert,” “Air Pollution Warning,” and “Air Pollution Emergency”) and associated contingency measures vary depending on the severity of the concentrations. Appendix I to title 129 of the NAC provides an Emergency Response Plan with actions to be taken under each of the severity levels. These steps are designed to prevent the excessive build-up of air pollutants to concentrations which can result in imminent and substantial danger to public health. Both the regulation at chapter 38 and the Emergency Response Plan are contained in the Federally approved SIP.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in that submission or referenced in Nebraska's SIP, EPA believes that the Nebraska SIP adequately addresses section 110(a)(2)(G) for the 2008 O3 NAAQS submitted and is proposing to approve the February 11, 2013, submission regarding the 2008 O3 infrastructure SIP requirements for this element.

    (H) Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS.

    As discussed previously, section 81-1504 of the Nebraska Revised Statutes authorizes NDEQ to regulate air quality and implement air quality control regulations. It also authorizes NDEQ to act as the state air pollution control agency for all purposes of the CAA. Section 81-1505(1) gives the EQC the authority to adopt and promulgate rules which set air standards that will protect public health and welfare. This authority includes the authority to revise rules as necessary to respond to a revised NAAQS.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that Nebraska has adequate authority to address section 110(a)(2)(H) for the 2008 O3 NAAQS submitted and is proposing to approve this element in regard to the February 11, 2013, submission regarding the 2008 O3 infrastructure SIP requirements for this element.

    (I) Nonattainment areas: Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of part D of the CAA, relating to SIP requirements for designated nonattainment areas.

    As noted earlier, EPA does not expect infrastructure SIP submissions to address subsection (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. Instead, EPA will take action on part D attainment plan SIP submissions through a separate rulemaking governed by the requirements for nonattainment areas, as described in part D.

    (J) Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to meet the applicable requirements of the following CAA provisions: (1) Section 121, relating to interagency consultation regarding certain CAA requirements; (2) section 127, relating to public notification of NAAQS exceedances and related issues; and (3) part C of the CAA, relating to prevention of significant deterioration of air quality and visibility protection.

    (1) With respect to interagency consultation, the SIP should provide a process for consultation with general-purpose local governments, designated organizations of elected officials of local governments, and any Federal Land Manager having authority over Federal land to which the SIP applies. Section 81-1504(3) authorizes NDEQ to advise and consult and cooperate with other Nebraska state agencies, the Federal government, other states, interstate agencies, and with affected political subdivisions, for the purpose of implementing its air pollution control responsibilities. Nebraska also has appropriate interagency consultation provisions in its preconstruction permit program. See, e.g., title 129, chapter 14 section 010 of the NAC (requiring NDEQ to send a copy of a notice of public comment on construction permit applications to any state or local air pollution control agency; the chief executives of the city and county in which the source would be located; any comprehensive regional land use planning agency; and any state, Federal Land Manager, or Indian governing body whose lands may be affected by emissions from the source or modification).

    (2) With respect to the requirements for public notification in section 127, the infrastructure SIP should provide citations to regulations in the SIP requiring the air agency to regularly notify the public of instances or areas in which any NAAQS are exceeded; advise the public of the health hazard associated with such exceedances; and enhance public awareness of measures that can prevent such exceedances and of ways in which the public can participate in the regulatory and other efforts to improve air quality.

    Title 129, chapter 38 of the NAC, discussed previously in connection with the state's authority to address emergency episodes at element (G), contains provisions for public notification of elevated ozone and other air pollutant levels. Appendix I to title 129 of the NAC includes measures which can be taken by the public to reduce concentrations. In addition, information regarding air pollution and related issues, is provided on an NDEQ Web site, http://www.deq.state.ne.us/NDEQSite.nsf/AirDivSecProg?OpenView&Start=1&ExpandView&Count=500. NDEQ also prepares an annual report on air quality in the state which is available to the public on its Web site, at http://www.deq.state.ne.us/Publica.nsf/c4afc76e4e077e11862568770059b73f/a12a5ada6cce1c1686257a47004e0633!OpenDocument.

    (3) With respect to the applicable requirements of part C of the CAA, relating to prevention of significant deterioration of air quality and visibility protection, we previously noted in the discussion of section 110(a)(2)(C) (relating to enforcement of control measures) how the Nebraska SIP meets the PSD requirements, incorporating the Federal rule by reference. Regarding the prevention of significant deterioration requirements, EPA previously approved Nebraska's PM2.5 PSD program as found at 79 FR 45108. On January 22, 2013, the U.S. Court of Appeals for the District of Columbia vacated and remanded the provisions at 40 CFR 51.166(k)(2) and 52.21(k)(2) concerning implementation of the PM2.5 SILs and vacated the provisions at 40 CFR 51.166(i)(5)(i)(c) and 52.21 (i)(5)(i)(c) (adding the PM2.5 SMCs) that were promulgated as part of the October 20, 2010, rule, Prevention of Significant Deterioration (PSD) for Particulate Matter less than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels and Significant Monitoring Concentrations, 75 CFR 64864. Consistent with the court's ruling, on June 27, 2013, Nebraska submitted a request to not include the SIP provisions relating the Significant Impact Levels (SILs) and Significant Monitoring Concentrations (SMCs).

    With respect to the visibility component of section 110(a)(2)(J), Nebraska stated in its 2008 O3 infrastructure SIP submittals that the “Visibility Protection” requirements of chapter 43 of title 129 of the Nebraska Administrative Code met part C visibility requirements of element J. The “Visibility Protection” requirements of chapter 43 were submitted by Nebraska for incorporation into the Nebraska SIP on November 8, 2011, and will be addressed in a separate rulemaking.

    EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. However, when EPA establishes or revises a NAAQS, these visibility and regional haze requirements under part C do not change. EPA believes that there are no new visibility protection requirements under part C as a result of a revised NAAQS. Therefore, there are no newly applicable visibility protection obligations pursuant to element J after the promulgation of a new or revised NAAQS. As such, EPA is proposing to find that Nebraska's SIP meets the visibility requirements of element J with respect to the 2008 O3 NAAQS as there are no new applicable requirements triggered by the 2008 O3 NAAQS.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that Nebraska has met the applicable requirements of section 110(a)(2)(J) for the 2008 O3 NAAQS in the state and is therefore proposing to approve this element of the February 11, 2013, submission.

    (K) Air quality and modeling/data: Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling, as prescribed by EPA, to predict the effects on ambient air quality of any emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

    Nebraska has authority to conduct air quality modeling and report the results of such modeling to EPA. Section 81-1504(5) provides NDEQ with the authority to encourage, participate in, or conduct studies, investigations, research and demonstrations relating to air pollution and its causes and effects. As an example of regulatory authority to perform modeling for purposes of determining NAAQS compliance, the regulations at title 129, chapter 19, section 019 provide for the use of EPA-approved air quality models (e.g., those found in 40 CFR part 51, appendix W) for PSD construction permitting. If the use of these models is inappropriate, the model may be modified or an alternate model may be used with the approval of NDEQ and EPA.

    The Nebraska regulations also give NDEQ the authority to require that modeling data be submitted for analysis. Title 129, chapter 19, section 021.02 states that upon request by NDEQ, the owner or operator of a proposed source or modification must provide information on the air quality impact of the source or modification, including all meteorological and topographical data necessary to estimate such impact.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that Nebraska has the adequate infrastructure needed to address section 110(a)(2)(K) for the 2008 O3 NAAQS and is proposing to approve the February 11, 2013, submission regarding the 2008 O3 infrastructure SIP requirements for this element.

    (L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to the permitting authority, as a condition of any permit required under the CAA, to cover the cost of reviewing and acting upon any application for such a permit, and, if the permit is issued, the costs of implementing and enforcing the terms of the permit. The fee requirement applies until a fee program established by the state pursuant to title V of the CAA, relating to operating permits, is approved by EPA.

    Section 81-1505 of the Nebraska Revised States provides authority for NDEQ to collect permit fees, including title V fees. For example, section 81-1505(12)(e) requires that the EQC establish fees sufficient to pay the reasonable direct and indirect of developing and administering the air quality permit program. Nebraska's title V program, including the fee program addressing the requirements of the Act and 40 CFR 70.9 relating to title V fees, was approved by EPA on October 18, 1995 (60 FR 53872).

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that Nebraska has the adequate infrastructure needed to address section 110(a)(2)(L) for the 2008 O3 NAAQS and is proposing to approve the February 11, 2013, submission regarding the 2008 O3 infrastructure SIP requirements for this element.

    (M) Consultation/participation by affected local entities: Section 110(a)(2)(M) requires SIPs to provide for consultation and participation by local political subdivisions affected by the SIP.

    Section 81-1504(5) of the Nebraska Revised Statutes gives NDEQ the authority to encourage local governments to handle air pollution problems within their respective jurisdictions and at the same time provide them with technical and consultative assistance. NDEQ is also authorized to delegate the enforcement of air pollution control regulations down to governmental subdivisions which have adopted air pollution control programs. As discussed previously, NDEQ currently relies on two local agencies for assistance in implementing portions of the air pollution control program: Lincoln/Lancaster County Health Department and Omaha Air Quality Control.

    In addition, as previously noted in the discussion about section 110(a)(2)(J), Nebraska's statutes and regulations require that NDEQ consult with local political subdivisions for the purposes of carrying out its air pollution control responsibilities.

    Based upon review of the state's infrastructure SIP submission for the 2008 O3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that Nebraska has the adequate infrastructure needed to address section 110(a)(2)(M) for the 2008 O3 NAAQS and is proposing to approve the April 3, 2008, submission regarding the 2008 O3 infrastructure SIP requirements for this element.

    V. What action is EPA proposing?

    EPA is proposing to approve the infrastructure SIP submissions from Nebraska which address the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2008 O3 NAAQS. Specifically, EPA is proposing to approve the following infrastructure elements, or portions thereof:

    110(a)(2)(A), (B), (C), (D)(i)(II)—prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). As discussed in each applicable section of this rulemaking, EPA is not proposing action on section 110(a)(2)(D)(i)(I)—prongs 1 and 2 and section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions under part D. And finally, EPA is proposing to disapprove 110(a)(2)(D)(i)(II)—prong 4, as it relates to the protection of visibility.

    Based upon review of the state's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Nebraska's SIP, EPA believes that Nebraska has the infrastructure to address all applicable required elements of sections 110(a)(1) and (2) (except otherwise noted) to ensure that the 2008 O3 NAAQS are implemented in the state.

    We are hereby soliciting comment on this proposed action. Final rulemaking will occur after consideration of any comments.

    VI. Statutory and Executive Order Review

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

    • Is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    Statutory Authority

    The statutory authority for this action is provided by section 110 of the CAA, as amended (42 U.S.C. 7410).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Sulfur dioxide, Reporting and recordkeeping requirements.

    Dated: June 1, 2015. Mark Hague, Acting Regional Administrator, Region 7.
    [FR Doc. 2015-14336 Filed 6-18-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2015-0085; FRL-9929-35-Region 8] Approval and Promulgation of State Implementation Plan Revisions; Rules, General Requirements and Test Methods; Utah AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Utah on January 28, 2010, September 16, 2010, June 18, 2013, and August 29, 2014. These submittals revise the rules, general requirements and test methods for the State of Utah. The amendments also update the version of the Code of Federal Regulations (CFR) incorporated by reference into the rules of the State of Utah. EPA is not taking action on an April 26, 2012 submittal or a November 4, 2013 submittal because they have been superseded by the August 29, 2014 submittal. EPA is taking this action in accordance with section 110 of the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before July 20, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R08-OAR-2015-0085, by one of the following methods:

    http://www.regulations.gov. Follow the on-line instructions for submitting comments.

    Email: [email protected]

    Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).

    Mail: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.

    Hand Delivery: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal holidays. Special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2015-0085. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA, without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to section I, General Information, of the SUPPLEMENTARY INFORMATION section of this document.

    Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., 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 www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jody Ostendorf, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. 303-312-7814, [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. General Information II. Analysis of the State Submittals III. What Action is EPA Taking Today? IV. Incorporation by Reference V. Statutory and Executive Orders Reviews I. General Information What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When submitting comments, remember to:

    • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register volume, date, and page number);

    • Follow directions and organize your comments;

    • Explain why you agree or disagree;

    • Suggest alternatives and substitute language for your requested changes;

    • Describe any assumptions and provide any technical information and/or data that you used;

    • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced;

    • Provide specific examples to illustrate your concerns, and suggest alternatives;

    • Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and,

    • Make sure to submit your comments by the comment period deadline identified.

    II. Analysis of the State Submittals

    In this proposed rulemaking, we are proposing to approve four submittals into Utah's SIP. The January 28, 2010 submittal revises R307-405-2, Permits: Major Sources in Attainment or Unclassified Areas (PSD) and R307-102, General Requirements: Broadly Applicable Requirements. The submittal revises R307-405-2, which incorporates by reference the federal Prevention of Significant Deterioration (PSD) permitting program in 40 CFR 52.21. Changes include the exclusion of ethanol production facilities from the definition of chemical process plants, and the clarification in the record keeping requirements for a modification where there is a “reasonable possibility” that the change would result in a significant increase of any regulated New Source Review (NSR) pollutant. The ethanol exclusion Final Rule was issued by EPA (72 FR 24060, May 1, 2007). EPA approved Utah's revised rules to implement the non-vacated provisions of EPA's NSR Reform regulations (76 FR 41712, July 15, 2011). EPA proposes to approve this part of the submittal.

    The January 28, 2010 SIP revision also updates the incorporation by reference date of the 40 CFR to July 1, 2008. EPA is not taking action on this proposed update because it was superseded by the August 29, 2014 submittal that we are acting on in this document.

    EPA also proposes to approve R307-102, General Requirements: Broadly Applicable Requirements, which changes the authorization from Title 63-46b-4 to Title 63G-4-202, due to the recodification of Title 63 made by House Bill 63 Chapter 328, Laws of Utah 2008.

    The January 28, 2010 submittal revised R307-101-2, Definitions, to update the threshold limit values to the 2009 American Conference of Governmental Industrial Hygienists publication of Threshold Limit Values for Chemical Substances and Physical Agents & Biological Exposure Indices. However, a March 19, 2014 letter from the Governor withdrew the January 28, 2010 submittal of R307-101-2. No further action is required on this submittal.

    The September 16, 2010 submittal revises R307-101-2, to add the definition of PM2.5, and General Requirements: Definitions. The existing R307-101-2 was approved by EPA on September 2, 2008 (73 FR 51222).The definition of “PM2.5,” consistent with the definition at 40 CFR 50.7, means particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers as measured by an EPA reference or equivalent method. We propose to approve this definition of PM2.5.

    The September 16, 2010 submittal also updates R307-214, National Emission Standards for Hazardous Air Pollutants to add 12 new federal Maximum Achievable Control Technology (MACT) standards that may apply to sources of hazardous air pollutants in Utah. The amendments to R307-101-3 and R307-214 update the version of the Code of Federal Regulations incorporated by reference into the rules of the State of Utah.

    However, a March 19, 2014 letter from the Governor withdrew the request to approve the September 16, 2010 submittal regarding R307-214, National Emission Standards For Hazardous Air Pollutants, which is the Utah Air Quality rule that incorporates by reference provisions of 40 CFR parts 61 and 63. There is no requirement for parts 61 and 63 to be incorporated into Utah's SIP, so no further action is required on that part of the submittal. EPA is not taking action on the proposed update to the version of the Code of Federal Regulations for R307-101-3, because it was superseded by the August 29, 2014 submittal that EPA is proposing to approve in this document.

    The June 18, 2013 submittal revises R307-401-15, Air Strippers and Soil Venting Projects, to refer to the most recent test methods and to allow sources to use future updated federally-approved methods. The existing rule was (conditionally) approved by EPA (79 FR 27190, May 13, 2014), after EPA received a commitment letter from the State of Utah to remove the Director's Discretion language within one year or EPA's action would revert to a disapproval. The State submitted proposed revised language within the one-year deadline and requested that EPA approve the following language in R307-401-15(3)(a), “Emissions estimates of volatile organic compounds shall be based on test data obtained in accordance with the test method in the EPA document SW-846, Test #8260c or 8261a, or the most recent EPA revision of either test method if approved by the director.” Utah also proposes to revise R307-401-15(3)(b), to now state, “Emissions estimates of hazardous air pollutants shall be based on test data obtained in accordance with the test method in EPA document SW-846, Test #8021B or the most recent EPA revision of the test method if approved by the director.” This language provides the certainty required to ensure the appropriate EPA approved test is used and, because EPA routinely updates test methods, this language allows the State to use the most current version of the test method without having to do a SIP revision. We propose to approve these revisions.

    The June 18, 2013 submittal also proposes a non-substantive change to re-number R307-410-5(1)[(d)] to R307-410-5(1)(c)(i)(C). EPA is not acting on this proposed change because EPA disapproved R307-410-5, Documentation of Ambient Air Impacts for Hazardous Air Pollutants on February 6, 2014 due to lack of EPA authority to approve provisions that only address hazardous air pollutants in a SIP revision under CAA section 110 (79 FR 7072).

    The April 26, 2012 submittal revises R307-101-3, General Requirements; Version of Code of Federal Regulations Incorporated by Reference. EPA is not taking action on this submittal because it was superseded by the August 29, 2014 submittal that EPA is acting on in this document.

    The November 4, 2013 submittal also revises R307-101-3, General Requirements; Version of Code of Federal Regulations Incorporated by Reference. EPA is not taking action on this submittal because it was superseded by the August 29, 2014 submittal that EPA is acting on in this document.

    The August 29, 2014 submittal amends R307-101-3, General Requirements, Version of Code of Federal Regulations Incorporated by Reference and supersedes and replaces all previous versions of submittals received on January 28, 2010, September16, 2010, April 26, 2012 and November 4, 2013. No further EPA action is required on those earlier submittals. The existing rule was approved by EPA on September 2, 2008 (73 FR 51222). Except as specifically identified in an individual rule, the version of the CFR incorporated throughout R307 is dated July 1, 2013.

    The August 29, 2014 submittal amends R307-101-3 to include four chemical compounds on the list of compounds excluded from the definition of VOC, as found in EPA rule at 40 CFR 51.100(s), on the basis that each of these compounds makes a negligible contribution to tropospheric ozone formation. These compounds consist of four hydrofluoropolyethers (HFPEs) which are identified as HCF2OCF2H (also known as HFE-134), HCF2OCF2OCF2H (also known as HFE-236cal2), HCF2OCF2CF2OCF2H (also known as HFE-338pcc13), and HCF2OCF2OCF2CF2OCF2H (also known as H-Galden 1040X or H-Galden ZT 130 (or 150 or 180)). If an entity uses or produces any of these four HFPE compounds (these being in the family of products known by the trade name H-Galden) and is subject to the EPA regulations limiting the use of VOC in a product, limiting the VOC emissions from a facility, or otherwise controlling the use of VOC for purposes related to attaining the ozone national ambient air quality standards (NAAQS), then the compound will not be counted as a VOC in determining whether these regulatory obligations have been met.

    This EPA rule, Air Quality: Revision to Definition of Volatile Organic Compounds—Exclusion of a Group of Four Hydrofluoropolyethers (HFPEs), was finalized on February 12, 2013 (78 FR 9823). EPA proposes to approve this SIP revision.

    Finally, the August 29, 2014 submittal updates the version of the CFR incorporated by reference into the rules of the State of Utah to reflect that 40 CFR 60.56c(d)(2) of subpart Ec was removed from federal regulation (78 FR 28052). That provision previously excluded Hospital Medical Infectious Waste Incinerators (HMIWI) units from having to comply with standards during periods of Startup Shutdown Malfunction (SSM) provided that no hospital waste or medical/infectious waste was being charged to the unit during those SSM periods. That provision was removed from federal regulation on May 13, 2013 (78 FR 28052). EPA proposes to approve this SIP revision.

    III. What action is EPA taking today?

    EPA is proposing to approve the SIP revisions submitted by Utah on January 28, 2010, September 16, 2010, June 18, 2013 and August 29, 2014. We are proposing to approve the January 28, 2010 revisions to R307-405-2, with exception to the proposed change to the incorporation by reference date, and proposing to approve all of the revisions to R307-102. We are proposing to approve the June 18, 2013 SIP revisions, with the exception of the non-substantive change to re-number R307-410-5(1)[(d)] to R307-410-5(1)(c)(i)(C). The August 29, 2014 submittal's newly amended rule supersedes and replaces all previous versions of submittals of R307-101-3, General Requirements, Version of Code of Federal Regulations Incorporated by Reference. EPA proposes to approve the August 29, 2014 revisions. Previous submittals were received on January 28, 2010, September 16, 2010, April 26, 2012 and November 4, 2013. No further EPA action is required on these earlier submittals.

    IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Utah Division of Air Quality rules regarding rules, general requirements, and test methods discussed in section II, Analysis of the State Submittals, of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    V. Statutory and Executive Orders Review

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state actions, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves some state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: June 3, 2015. Shaun L. McGrath, Regional Administrator, Region 8.
    [FR Doc. 2015-15158 Filed 6-18-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Chapter I [EPA-HQ-OPP-2014-0818; FRL-9929-16] Proposal To Mitigate Exposure to Bees From Acutely Toxic Pesticide Products; Extension of Comment Period AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Extension of comment period.

    SUMMARY:

    EPA issued a notice in the Federal Register of May 29, 2015, concerning EPA's Proposal to Mitigate Exposure to Bees from Acutely Toxic Pesticide Products. This document extends the comment period for 30 days, from June 29, 2015 to July 29, 2015. Multiple stakeholders requested that EPA extend the comment period due to the complexity and importance of this issue. EPA is granting the extension.

    DATES:

    The comment period for the document published on May 29, 2015 (80 FR 30644), is extended. Comments, identified by docket identification (ID) number EPA-HQ-OPP-2014-0818 must be received on or before July 29, 2015.

    ADDRESSES:

    Follow the detailed instructions provided under ADDRESSES in the Federal Register document of May 29, 2015 (80 FR 30644) (FRL-9927-36).

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Pesticide Re-Evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 308-8157; email address: [email protected], or

    Marietta Echeverria, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 305-8578; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    This document extends the public comment period established in the Federal Register document of May 29, 2015 (80 FR 30644) (FRL-9927-36). In that document, EPA is seeking comment on a proposal to adopt mandatory pesticide label restrictions to protect managed bees under contract pollination services from foliar applications of pesticides that are acutely toxic to bees on a contact exposure basis. These label restrictions would prohibit applications of pesticide products, which are acutely toxic to bees, during bloom when bees are known to be present under contract. EPA is also seeking comment on a proposal to rely on efforts made by states and tribes to reduce pesticide exposures through development of locally-based measures, specifically through managed pollinator protection plans. These plans would include local and customizable mitigation measures to address certain scenarios that can result in exposure to pollinators. EPA intends to monitor the success of these plans in deciding whether further label restrictions are warranted. EPA is hereby extending the comment period, which was set to end on June 29, 2015, to July 29, 2015.

    To submit comments, or access the docket, please follow the detailed instructions provided under ADDRESSES in the Federal Register document of May 29, 2015. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT.

    Authority:

    7 U.S.C. 136a.

    Dated: June 11, 2015. Jack E. Housenger, Director, Office of Pesticide Programs.
    [FR Doc. 2015-14950 Filed 6-18-15; 8:45 am] BILLING CODE 6560-50-P
    80 118 Friday, June 19, 2015 Notices DEPARTMENT OF AGRICULTURE Forest Service RIN 0596-AC51 Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560 AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of withdrawal of proposed directive.

    SUMMARY:

    On May 7, 2014, the Forest Service published an action proposing to amend its internal agency directives for the National Forest System (NFS), Watershed and Air Management to establish direction for management of groundwater resources on NFS lands (79 FR 25815). The proposed amendment was intended to provide internal agency direction on the consideration of groundwater resources in Agency activities, approvals, and authorizations; encourage source water protection and water conservation; establish systematic procedures for reviewing new proposals for groundwater withdrawals on NFS lands; and require the evaluation of potential impacts from groundwater withdrawals on public resources on NFS lands. That notice invited public comment on the proposal.

    DATES:

    Not applicable.

    ADDRESSES:

    No further comments will be accepted on this proposal.

    FOR FURTHER INFORMATION CONTACT:

    Robert Harper, Director, Watershed, Fish, Wildlife, Air and Rare Plants Staff, (202) 205-1671.

    SUPPLEMENTARY INFORMATION:

    The Agency has determined that its proposal does not adequately meet its needs. Therefore, the Agency hereby withdraws the proposal to amend its internal Agency directives for Watershed and Air Management to establish direction for management of groundwater resources on National Forest System lands and will engage in a public conversation to develop revised proposed directives.

    The response to the proposal from conservation organizations and Tribes was generally favorable; however, States and a number of other organizations raised concerns that the proposed directive would exceed the Agency's authorities and infringe on State authorities to allocate water. The proposed directives did not, and any future actions will not, infringe on State authority, impose requirements on private landowners, or change the long-standing relationship between the Forest Service, States, and Tribes on water.

    The intent of any new groundwater proposed directive or next steps would be to establish a clearer and more consistent approach to evaluating and monitoring the effects of actions on groundwater resources of the National Forest System. It is clear the Agency must have further discussions with key publics on this issue. The decision to withdraw the May 2014 groundwater proposed directives will allow these conversations to take place. The Forest Service will use the additional input received from engagements with States and other citizen groups to develop new proposed directives to create a consistent approach to evaluating and monitoring effects to groundwater resulting from actions on NFS lands.

    Dated: June 15, 2015. Thomas L. Tidwell, Chief, Forest Service.
    [FR Doc. 2015-15151 Filed 6-18-15; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Notice of Funds Availability (NOFA) for the Rural Microentrepreneur Assistance Program for Fiscal Year 2015 AGENCY:

    Rural Business-Cooperative Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    This Notice is to invite applications for loans and grants under the Rural Microentrepreneur Assistance Program (RMAP) pursuant to 7 CFR part 4280, subpart D, for fiscal year (FY) 2015. Funding to support $14.190 million in loans and $2.086 million in grants is currently available. The RMAP funds were provided through the Agricultural Act of 2014, Public Law 113-79, on February 7, 2014 (2014 Farm Bill). RMAP provides the following types of support: loan only, combination loan and technical assistance grant, and subsequent technical assistance grants to Microenterprise Development Organizations (MDO).

    All applicants are responsible for any expenses incurred in developing their applications or costs incurred prior to the obligation date.

    DATES:

    Applicants may apply during a Federal fiscal quarter to be considered for the next quarter's funding. Complete applications for loan only, and combination loan and grant, must be received in the U.S. Department of Agriculture (USDA) Rural Development State Offices no later than 4:30 p.m. (local time) on the last day prior to the beginning of each Federal fiscal quarter to be considered for funding. Applications received after a Federal fiscal quarter deadline will be reviewed and evaluated for funding in the next Federal fiscal quarter. Applications that have not competed for four consecutive quarters, depending on funding availability, may be considered in FY 2016.

    The subsequent microlender technical assistance grant (existing MDOs with a microentrepenuer revolving loan fund) will be made, non-competitively, based on the microlender's microlending activity and availability of funds. To determine the microlender technical assistance grant awards for FY 2015, the Agency will use the microlender's outstanding balance of microloans as of June 30, 2015, to calculate this amount. MDOs that are eligible for an annual grant may apply.

    ADDRESSES:

    Applications and forms may be obtained from any Rural Development State Office or online at http://www.rd.usda.gov/programs-services/rural-microentrepreneur-assistance-program. Applicants must submit an original complete application to the USDA Rural Development State Office in the State where the applicant's headquarters is located. A list of the USDA Rural Development State Offices addresses and telephone numbers can be found online at http://www.rurdev.usda.gov/StateOfficeAddresses.html.

    FOR FURTHER INFORMATION CONTACT:

    Specialty Programs Division, Rural Business-Cooperative Service, United States Department of Agriculture, 1400 Independence Avenue SW., MS 3226, Room 4204-South, Washington, DC 20250-3226, or call Kathleen Goldsmith at 202-720-1400.

    Overview

    Solicitation Opportunity Title: Rural Microentrepreneur Assistance Program.

    Announcement Type: Initial Announcement.

    Catalog of Federal Domestic Assistance Number (CFDA): 10.870.

    Dates: Applicants may apply during a Federal fiscal quarter to be considered for the next quarter's funding. Complete applications for loan only, combination loan and grant, and technical assistance grant-only must be received in the USDA Rural Development State Offices no later than 4:30 p.m. (local time) on the last day prior to the beginning of each Federal fiscal quarter to be considered for funding. Applications received after a Federal fiscal quarter deadline will be reviewed and evaluated for funding in the next Federal fiscal quarter. Applications that have not competed for four consecutive quarters, depending on funding availability, may be considered in FY 2016.

    Subsequent microlender annual technical assistance grants are non-competitive. The Agency has established June 30 of each year as the date to determine the grant amount using the MDO's outstanding balance of microloans as of that date.

    I. Funding Opportunity Description

    A. Purpose of the Program. The purpose of RMAP is to support the development and ongoing success of rural microentrepreneurs and microenterprises defined in 7 CFR 4280.302.

    B. Statutory Authority. RMAP is authorized by Section 379E of the Consolidated Farm and Rural Development Act (7 U.S.C. 2008s). Regulations are contained in 7 CFR part 4280, subpart D. Assistance provided to rural areas under this program may include the provision of loans and grants to rural MDOs for the provision of microloans to rural microenterprises and microentrepreneurs; provision of business-based training and technical assistance to rural microborrowers and potential microborrowers; and other such activities as deemed appropriate by the Secretary to ensure the development and ongoing success of rural microenterprises. Awards are made on a competitive basis using specific selection criteria contained in 7 CFR part 4280, subpart D. Information required to be in the application is specified in 7 CFR 4280.315.

    For entities applying for program loan funds to become an RMAP microlender only, the following items are required: (1) Form RD 1910-11, “Certification of No Federal Debt;” (2) Demonstration that the applicant is eligible to apply to participate in this program; (3) Certification by the applicant that it cannot obtain sufficient credit elsewhere to fund the activities called for under this program with similar rates and terms; and (4) Form RD 400-4, “Assurance Agreement.”

    Subsequent annual microlender technical assistance grants are subject to funding availability, in accordance with 7 CFR 4280.313(b)(2). Awards will be determined non-competitively based on Agency appropriations for the fiscal year. The MDO must submit a prescribed worksheet, listing the outstanding balance of their microloans and unexpended grant funds as of the date of their request and a letter certifying that their organization still meets all the requirements set forth in 7 CFR part 4280, subpart D, and that no significant changes have occurred within the last year that would affect its ability to carry out the MDO functions. In addition, all MDOs who request Subsequent Annual Microlender Technical Assistance Grants must complete their reporting into the Lenders Interactive Network Connection (LINC) for the Federal fiscal quarter ending June 30, 2015. The deadline for reporting into LINC and requesting a TA grant is no later than 4:30 p.m. (local time) on July 31, 2015.

    C. Definition of Terms. The definitions applicable to this Notice are published at 7 CFR 4280.302.

    D. Application Awards. The Agency will review, evaluate, and score applications received in response to this Notice based on the provisions found in 7 CFR part 4280, subpart D, and as indicated in this Notice. However, the Agency advises all interested parties that the applicant bears the burden in preparing and submitting an application in response to this Notice whether or not funding is appropriated for this program in FY 2015.

    II. Award Information

    Type of Awards: Loans and/or Grants.

    Fiscal Year Funds: FY 2015.

    Available Funds. Anyone interested in submitting an application for funding under this program is encouraged to consult the Rural Development Web Newsroom Web site at http://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas for funding information. Funds will be prioritized as follows: (1) Combination loan and grants; (2) loan only; and (3) subsequent microlender technical assistance grants.

    Total Funds: $16,276,000.

    Loans: $14,190,000.

    MDO Grants: $2,086,000.

    Maximum Award: The minimum loan amount Microenterprise Development Organizations (MDO) may borrow under this program is $50,000. The maximum loan any MDO may borrow in any given year is $500,000. The commitment of program dollars will be made to applicants of selected responses that have fulfilled the necessary requirements for obligation. If the applicant is applying for an initial loan, they may also apply for a technical assistance grant. Grant funds are limited to no more than 25 percent up to the first $400,000 of the loan request (or $100,000). Loan requests of greater than $400,000 are eligible to receive $100,000, plus 5 percent of the amount over $400,000.

    The maximum subsequent technical assistance grant (to MDOs that have an existing microentrepeneur revolving loan fund) amount for a microlender is 25 percent of the first $400,000 of outstanding microloans owed to the microlender under this program, plus an additional 5 percent of the outstanding loan amount owed by the microborrowers to the lender under this program over $400,000 up to and including $2.5 million. Any grant dollars obligated, but not spent, from the initial grant, will be subtracted from the subsequent year grant to ensure that obligations cover only microloans made and active.

    Application Dates: The last day of each Federal fiscal quarter.

    III. Eligibility Information

    A. Eligible Applicants. To be eligible for this program, the applicant must meet the eligibility requirements in 7 CFR 4280.310. In addition to the requirements in 7 CFR 4280.310, applicants must not be delinquent on any Federal debt or otherwise disqualified from participation in this program to be eligible to apply. All other restrictions in this Notice will apply.

    B. Cost Sharing or Matching. The Federal share of the eligible project cost of a microborrower's project funded under this Notice shall not exceed 75 percent. The cost share requirement shall be met by the microlender in accordance with the requirements specified in 7 CFR 4280.311(d).

    The MDO is required to provide a match of not less than 15 percent of the total amount of the grant in the form of matching funds, indirect costs, or in-kind goods or services.

    C. Other Eligibility Requirements. Applications will only be accepted from eligible MDOs. Eligible MDOs must score a minimum of 70 points out of 100 points to be considered to receive an award. Awards for each Federal fiscal quarter will be based on ranking with the highest ranking applications being funded first, subject to available funding.

    D. Completeness Eligibility. All applications must be submitted as a complete application, in one package. Applications will not be considered for funding if they do not provide sufficient information to determine eligibility or are unbound, falling apart, or otherwise not suitable for evaluation. Such applications will be withdrawn.

    IV. Fiscal Year 2015 Application and Submission Information

    A. Address to Request Application Package: For further information, entities wishing to apply for assistance should contact the Rural Development State Office as identified in the ADDRESSES section of this Notice to obtain copies of the application package.

    An MDO may submit an initial application for a loan with a microlender technical assistance grant, or an initial or subsequent loan-only (without a microlender technical assistance grant). Loan applications must be submitted in paper format and must be bound in a 3-ring binder and be organized in the same order set forth in 7 CFR 4280.315. To ensure timely delivery, applicants are strongly encouraged to submit their applications using an overnight, express, or parcel delivery service.

    B. Content and Form of Submission: An application must contain all of the required elements outlined in 7 CFR 4280.315. Each application must address the applicable scoring criteria presented in 7 CFR 4280.316 for the type of funding being requested.

    C. Submission Dates and Times: The original complete application must be received by the USDA Rural Development State Office no later than 4:30 p.m. local time by the application deadline dates listed above, regardless of the postmark date, in order to be considered for funds available in that Federal fiscal quarter.

    Unless withdrawn by the applicant, completed applications that receive a score of at least 70 (the minimum required to be considered for funding), but have not yet been funded, will be retained by the Agency for consideration in subsequent reviews through a total of four consecutive quarterly reviews. Applications that remain unfunded after four quarterly reviews, including the initial quarter in which the application was competed, will not be considered further for an award.

    D. Explanation of Dates: Applications must be in the USDA Rural Development State Office by the dates as indicated in the DATES section of this Notice.

    V. Application Review Information

    A. Criteria. All eligible and complete applications will be evaluated and scored based on the selection criteria and weights contained in 7 CFR part 4280, subpart D. Failure to address any one of the criteria by the application deadline will result in the application being determined ineligible and the application will not be considered for funding. An application must receive at least 70 points to be considered for funding in the quarter in which it is scored.

    B. Review and Selection Process. The State Offices will review applications to determine if they are eligible for assistance based on requirements contained in 7 CFR part 4280, subpart D. If determined eligible, the application will be submitted to the National Office, where it will be reviewed and prioritized by ranking each application, received in that quarter, in highest to lowest score order. All applications will be funded until funds have been exhausted for each funding cycle. Funding of projects is subject to the MDO's satisfactory submission of the additional items required by that subpart and the USDA Rural Development Letter of Conditions.

    VI. Award Administration Information

    A. Award Notices. Successful applicants will receive notification for funding from the USDA Rural Development State Office. Applicants must comply with all applicable statutes and regulations before the award will be approved. Provided the application and eligibility requirements have not changed, an application not selected will be reconsidered for three subsequent funding competitions for a total of four competitions. If an application is withdrawn, it can be resubmitted and will be evaluated as a new application. Unsuccessful applications will receive notification by mail, detailing why the application was unsuccessful.

    B. Administrative and National Policy Requirements. Additional requirements that apply to MDO's selected for this program can be found in 7 CFR part 4280, subpart D. The USDA and the Agency have adopted the USDA grant regulations at 2 CFR chapter IV. This regulation incorporates the new Office of Management and Budget (OMB) regulations 2 CFR 200 and 2 CFR 400.1 to 400.18 for monitoring and servicing RMAP funding.

    C. Reporting. In addition to any reports required by 2 CFR 200 and 2 CFR 400.1 to 400.18, the MDO must provide reports as required by 7 CFR part 4280, subpart D.

    VII. Agency Contacts

    For general questions about this Notice, please contact your USDA Rural Development State Office as provided in the ADDRESSES section of this Notice.

    VIII. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with the Rural Microentrepenuer Assistance Program, as covered in this Notice, has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0062.

    IX. Federal Funding Accountability and Transparency Act

    All applicants, in accordance with 2 CFR part 25, must have a Dun and Bradstreet Data Universal Number System (DUNS) number, which can be obtained at no cost via a toll-free request line at (866) 705-5711 or online at http://fedgov.dnb.com/webform. Similarly, all applicants for grants must be registered in the System for Award Management (SAM) prior to submitting an application. Applicants may register for the SAM at http://www.sam.gov. All recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive total compensation in accordance with 2 CFR part 170.

    X. Nondiscrimination Statement

    The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identity, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)

    If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online at http://www.ascr.usda.gov/complaint_filing_cust.html, or at any USDA office, or call (866) 632-9992 to request the form. You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, by fax (202) 690-7442, or email at [email protected]

    Individuals who are deaf, hard of hearing, or have speech disabilities and who wish to file either an EEO or program complaint, please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).

    Persons with disabilities, who wish to file a program complaint, please see information above on how to contact us by mail directly or by email. If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.), please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Dated: June 10, 2015. Lillian E. Salerno, Administrator, Rural Business-Cooperative Service.
    [FR Doc. 2015-15193 Filed 6-18-15; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and Opportunity for Public Comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance 6/12/2015 Through 6/15/2015 Firm name Firm address Date accepted for investigation Product(s) Joval Machine Company, Inc 515 Main Street, Yalesville, CT 06492 6/15/2015 The firm manufactures sheet metal and fiberglass heat shielding insulating products. Custom Metal Finishers, Inc. 502 East Industrial Drive, Mountain View, MO 65548 6/15/2015 The firm manufactures various metal valves components used in gas appliance.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Dated: June 15, 2015. Michael S. DeVillo, Eligibility Examiner.
    [FR Doc. 2015-15113 Filed 6-18-15; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-41-2015] Notification of Proposed Production Activity, BMW Manufacturing Co., LLC, Subzone 38A, (Motor Vehicles), Spartanburg, South Carolina

    BMW Manufacturing Co., LLC (BMWMC), operator of Subzone 38A, submitted a notification of proposed production activity to the FTZ Board for its facility in Spartanburg, South Carolina. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on June 3, 2015.

    BMWMC already has authority to produce passenger sedans, coupes, and sport utility vehicles. The current request would add a new finished product (passenger vehicle bodies) and foreign-status materials and components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt BMWMC from customs duty payments on the foreign status materials and components used in export production. On its domestic sales, BMWMC would be able to choose the duty rate during customs entry procedures that applies to passenger motor vehicles and related bodies (duty rate 2.5%) for the foreign status materials and components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign status production equipment.

    The materials and components sourced from abroad include: first-aid kits; acrylic/vinyl paints; trunk lid adhesives; acoustic absorber foams; tire sealants; rubber assembly gaskets; tires; felt strips (HTSUS Subheadings 5602.10, 5602.90); damping strips (Subheading 5602.90); tufted floor coverings; carpet sets; velcro straps; glass; windshields; steel flanges; iron/steel coupling locks; suppression band assemblies; earthing strap hinge hatch assemblies; iron/steel rivets; diesel engines; air-conditioner assemblies; air-conditioner tubes/lines; windshield washer assemblies; jacks; metal gaskets; flange seals; electric motors/converters/chargers; wiper motors; power supplies; batteries (lead acid, lithium-ion); electric lamps/lights/signals; reflectors; sound signaling equipment/horns; windshield wiper systems and arms; light-emitting diodes; heater assemblies; telematics communication boxes/media assembl