Federal Register Vol. 80, No.175,

Federal Register Volume 80, Issue 175 (September 10, 2015)

Page Range54407-54700
FR Document

80_FR_175
Current View
Page and SubjectPDF
80 FR 54697 - Establishing Paid Sick Leave for Federal ContractorsPDF
80 FR 54693 - Labor Day, 2015PDF
80 FR 54598 - Sunshine Act MeetingPDF
80 FR 54564 - Sunshine Act MeetingPDF
80 FR 54594 - Sunshine Act MeetingPDF
80 FR 54629 - Sunshine Act MeetingPDF
80 FR 54484 - Great Lakes Pilotage Rates-2016 Annual Review and Changes to MethodologyPDF
80 FR 54649 - Kentucky Disaster Number KY-00058PDF
80 FR 54650 - ALASKA Disaster #AK-00031PDF
80 FR 54651 - Industry Advisory Group: Notice of Charter RenewalPDF
80 FR 54648 - New York Disaster #NY-00162PDF
80 FR 54590 - Stream Protection RulePDF
80 FR 54654 - Environmental Impact Statement: Cowlitz County, WashingtonPDF
80 FR 54653 - MAP-21 Comprehensive Truck Size and Weight Limits Study Deadline for Submitting Comments for Consideration in the Report to CongressPDF
80 FR 54655 - Notice To Rescind a Notice of Intent for an Environmental Impact Statement for the State Route 95 Realignment Study: Interstate 40 to State Route 68, Mohave County, ArizonaPDF
80 FR 54649 - Ohio Disaster #OH-00044 Declaration of Economic InjuryPDF
80 FR 54524 - Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review; 2013-2014PDF
80 FR 54650 - National Small Business Development Center Advisory BoardPDF
80 FR 54468 - Wisconsin; Disapproval of Infrastructure SIP With Respect to Oxides of Nitrogen as a Precursor to Ozone Provisions for the 2006 PM2.5PDF
80 FR 54517 - Notice of Public Availability of the Broadcasting Board of Governors FY-2013 Service Contract Analysis and FY-2014 Service Contract InventoryPDF
80 FR 54520 - Foreign-Trade Zone (FTZ) 265-Conroe, Texas; Notification of Proposed Production Activity; Bauer Manufacturing Inc. (Stationary Oil/Gas Drilling Rigs), Conroe, TexasPDF
80 FR 54520 - Foreign-Trade Zone 77-Memphis, Tennessee Application for Expansion of Subzone 77E; Cummins, Inc., Memphis, TennesseePDF
80 FR 54600 - Notice of Public MeetingPDF
80 FR 54565 - Medicare Program; Approval of 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 54521 - Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Preliminary Results of 2013-2014 Antidumping Duty Administrative ReviewPDF
80 FR 54519 - Foreign-Trade Zone (FTZ) 133-Quad-Cities, Iowa/Illinois; Notification of Proposed Production Activity; CNH Industrial America, LLC; Subzone 133E, (Agricultural and Construction Equipment, Subassemblies and Kits), Burlington and West Burlington, IowaPDF
80 FR 54523 - Certain Welded Carbon Steel Standard Pipes and Tubes From India: Rescission of Antidumping Duty Administrative Review; 2014-2015PDF
80 FR 54523 - Silicomanganese From Kazakhstan: Rescission of Antidumping Duty Administrative Review; 2014-2015PDF
80 FR 54580 - 30-Day Notice of Proposed Information Collection: Personal Financial and Credit StatementPDF
80 FR 54650 - In the Matter of the Designation of Abu 'Ubaydah Yusuf al 'Anabi, aka Yusuf Abu-‘Ubaydah al-Anabi, aka Abou Obeida Youssef al-Annabi, aka Abu-Ubaydah Yusuf al-Inabi, aka Mebrak Yazid, aka Youcef Abu Obeida, aka Mibrak Yazid, aka Yousif Abu Obayda Yazid, aka Yazid Mebrak, aka Yazid Mabrak, aka Yusuf Abu Ubaydah, aka Abou Youcef, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as AmendedPDF
80 FR 54586 - Submission of Information Collections Under the Paperwork Reduction ActPDF
80 FR 54555 - Submission for OMB Review; Comment RequestPDF
80 FR 54646 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Section 3 of NYSE Arca Equities Rule 8 To Extend the Effectiveness of the ETP Incentive Program for Additional One-Year Pilot Period, Ending September 4, 2016PDF
80 FR 54443 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Walk-In Cooler and Freezer Refrigeration Systems Working Group To Negotiate Energy Conservation StandardsPDF
80 FR 54444 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Central Air Conditioners and Heat Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation StandardsPDF
80 FR 54574 - Homeland Security Science and Technology Advisory Committee MeetingPDF
80 FR 54533 - Schedules for Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification WorkshopsPDF
80 FR 54566 - International Conference on Harmonisation; Guidance on Q3D Elemental Impurities; AvailabilityPDF
80 FR 54531 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing PermitsPDF
80 FR 54556 - Proposed Collection; Comment RequestPDF
80 FR 54531 - Proposed Information Collection; Comment Request; Cost-Earnings Surveys of American Samoa Longline FisheryPDF
80 FR 54564 - Notice to All Interested Parties of the Termination of the Receivership of 10321, Community National Bank, Lino Lakes, MNPDF
80 FR 54569 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; New Animal Drugs for Investigational UsePDF
80 FR 54417 - Toys; Determination Regarding Heavy Elements Limits for Unfinished and Untreated WoodPDF
80 FR 54417 - Advisory Circular 91-57 Model Aircraft Operating Standards (June 9, 1981)PDF
80 FR 54444 - Proposed Amendment and Establishment of Restricted Areas; Chincoteague Inlet, VAPDF
80 FR 54564 - Notice to All Interested Parties of the Termination of the Receivership of 10264, Community Security Bank, New Prague, MNPDF
80 FR 54652 - Noise Exposure Map Notice, Memphis International Airport, Memphis, TNPDF
80 FR 54517 - Notice of Public Meeting of the Mississippi Advisory Committee; CorrectionPDF
80 FR 54600 - New Postal ProductPDF
80 FR 54599 - New Postal ProductPDF
80 FR 54583 - Request for Nominees for the Advisory Council on Wildlife Trafficking; Extension of Nominations PeriodPDF
80 FR 54558 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Impact Evaluation of Data Driven Instruction Professional Development for TeachersPDF
80 FR 54517 - Submission for OMB Review; Comment RequestPDF
80 FR 54655 - Commercial Driver's License Standards: Application for Exemption; Daimler Trucks North America (Daimler)PDF
80 FR 54598 - Hispanic Council on Federal EmploymentPDF
80 FR 54558 - Secretary of Energy Advisory Board MeetingPDF
80 FR 54561 - Combined Notice Of Filings #2PDF
80 FR 54560 - Combined Notice of Filings #1PDF
80 FR 54560 - Combined Notice of FilingsPDF
80 FR 54562 - Combined Notice of FilingsPDF
80 FR 54598 - Information Collection Request; Submission for OMB ReviewPDF
80 FR 54572 - National Institute on Aging; Notice of Closed MeetingsPDF
80 FR 54570 - National Institute on Aging; Notice of Closed MeetingPDF
80 FR 54573 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingPDF
80 FR 54544 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Maintenance ProjectPDF
80 FR 54559 - Hydrogen and Fuel Cell Technical Advisory Committee MeetingPDF
80 FR 54583 - Notice of Realty Action: Modified Competitive Sealed Bid Sale of Public Land (NMNM 90300), Eddy County, New MexicoPDF
80 FR 54512 - Senior Executive Service: Membership of Performance Review BoardPDF
80 FR 54569 - Animal Food; Export Certificates; Food and Drug Administration Food Safety Modernization Act of 2011; Certification FeesPDF
80 FR 54596 - Information Collection: “Specific Domestic Licenses To Manufacture or Transfer Certain Items Containing Byproduct Material”PDF
80 FR 54511 - Notice of Special Session, “Building Human Capital: Nutrition Is Fundamental”PDF
80 FR 54511 - Senior Executive Services Performance Review Board: UpdatePDF
80 FR 54656 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal SystemPDF
80 FR 54657 - Petition for Waiver of CompliancePDF
80 FR 54518 - Proposed Information Collection; Comment Request; Generic Clearance for the 2020 Census Field TestsPDF
80 FR 54530 - Proposed Information Collection; Comment Request; Hollings Manufacturing Extension Partnership (HMEP) Program Application RequirementsPDF
80 FR 54589 - Notice of Availability for the Final Environmental Impact Statement for the Central Valley Project Municipal and Industrial Water Shortage Policy, Central Valley, CaliforniaPDF
80 FR 54567 - Osteoporosis Drug Development; Public Workshop; Request for CommentsPDF
80 FR 54440 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher/Processors Using Trawl Gear in the Western Regulatory Area of the Gulf of AlaskaPDF
80 FR 54512 - Agency Information Collection Activities: Proposed Collection; Comments Request-Evaluation of the Food Insecurity Nutrition Incentive (FINI) Grant ProgramPDF
80 FR 54507 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual SpecificationsPDF
80 FR 54418 - Marine Vapor Control SystemsPDF
80 FR 54442 - Descriptive Designation for Needle- or Blade-Tenderized (Mechanically Tenderized) Beef Products; CorrectionPDF
80 FR 54564 - Notice to All Interested Parties of the Termination of the Receivership of 10203, State Bank of Aurora, Aurora, MinnesotaPDF
80 FR 54535 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Mukilteo Multimodal Project Tank Farm Pier Removal ProjectPDF
80 FR 54554 - Takes of Marine Mammals Incidental to Specified Activities; Confined Blasting Activities by the U.S. Army Corps of Engineers During the Port of Miami Construction Project in Miami, FloridaPDF
80 FR 54556 - Notice of Intent To Prepare an Environmental Impact Statement to Transition Six FA-18C Strike Fighter Squadrons to FA-18E Strike Fighter Squadrons at Naval Air Station Oceana, Virginia and To Announce Public Scoping MeetingsPDF
80 FR 54568 - Distributor Labeling for New Animal Drugs; Draft Guidance for Industry; AvailabilityPDF
80 FR 54571 - Prospective Grant of a Start-up Exclusive Option License: Therapeutic Uses for Cardio-Metabolic Indications, Including Hypertriglyceridemia, Hypercholesterolemia and DiabetesPDF
80 FR 54657 - Railroad Revenue Adequacy-2014 DeterminationPDF
80 FR 54570 - National Institute of Dental and Craniofacial Research; Notice of Closed MeetingsPDF
80 FR 54573 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
80 FR 54571 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 54572 - National Institute of Mental Health; Notice of Closed MeetingPDF
80 FR 54594 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection Federal Coal Lease RequestPDF
80 FR 54573 - Missouri; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
80 FR 54410 - Clarification of Eligibility of Fleeing FelonsPDF
80 FR 54579 - Retrospective Review-Improving the Previous Participation Reviews of Prospective Multifamily Housing and Healthcare Program Participants Informational Conference CallPDF
80 FR 54651 - 2015 Special 301 Out-of-Cycle Review of Notorious Markets: Request for Public CommentsPDF
80 FR 54582 - 30-Day Notice of Proposed Information Collection: Neighborhood Stabilization Program 2 (NSP2) ReportingPDF
80 FR 54581 - 60-Day Notice of Proposed Information Collection; Legal Instructions Concerning Applications for Full Insurance Benefits-Assignment of Multifamily Mortgages to the SecretaryPDF
80 FR 54577 - 60-Day Notice of Proposed Information Collection: Core Performance Reporting Requirements for Competitively-Funded GrantsPDF
80 FR 54446 - Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Administrative Docket Update; AvailabilityPDF
80 FR 54593 - Meeting of the Judicial Conference Committee on Rules of Practice and ProcedurePDF
80 FR 54631 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing of Proposed Rule Change To Amend Rules 1.5(r) and 11.1 and Adopt New Rule 11.1(a)(1)PDF
80 FR 54634 - Submission for OMB Review; Comment RequestPDF
80 FR 54630 - Submission for OMB Review; Comment RequestPDF
80 FR 54630 - Proposed Collection; Comment RequestPDF
80 FR 54617 - Proposed Collection; Comment RequestPDF
80 FR 54634 - Proposed Collection; Comment RequestPDF
80 FR 54627 - Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Provide for the Clearance of Additional Western European Sovereign Single NamesPDF
80 FR 54635 - Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Rules 1.5(s), 11.1(a)(1), 11.6 and 11.8PDF
80 FR 54617 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Rules 1.5(s), 11.1(a)(1), 11.6 and 11.8PDF
80 FR 54614 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of Proposed Rule Change To Amend Rules 1.5(r), 11.1(a), 11.23, 14.6, 14.11, and 14.12 and Adopt Rule 11.1(a)(1)PDF
80 FR 54640 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding NASDAQ Last Sale PlusPDF
80 FR 54625 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC Options FacilityPDF
80 FR 54601 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To Establish a New Auction, BX PRISMPDF
80 FR 54621 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule on the BOX Market LLC Options FacilityPDF
80 FR 54628 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of a Proposed Rule Change To Amend The Options Clearing Corporation's Schedule of Fees To Allow a Clearing Fee Waiver for Exchange New ProductsPDF
80 FR 54638 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.21(d), Relating to the Routing of Retail OrdersPDF
80 FR 54562 - Combined Notice of Filings #2PDF
80 FR 54559 - Combined Notice of Filings #1PDF
80 FR 54594 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
80 FR 54592 - Certain Marine Sonar Imaging Devices, Including Downscan and Sidescan Devices, Products Containing the Same, and Components Thereof; Notice of Commission Determination To Review the Final Initial Determination in Part; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, Public Interest, and BondingPDF
80 FR 54580 - 60 Day Notice of Proposed Information Collection; Accountability in the Provision of HUD Assistance “Applicant/Recipient Disclosure/Update Report-HUD 2880”PDF
80 FR 54529 - Request for Comments On World Health Organization Pandemic Influenza Preparedness FrameworkPDF
80 FR 54555 - Performance Review Board (PRB)PDF
80 FR 54600 - Product Change-Priority Mail Express Negotiated Service AgreementPDF
80 FR 54553 - Proposed Information Collection; Comment Request; Southeast Region Permit Family of FormsPDF
80 FR 54600 - Product Change-Priority Mail Negotiated Service AgreementPDF
80 FR 54532 - Proposed Information Collection; Comment Request; Reporting Requirements for Commercial Fisheries Authorization Under Section 118 of the Marine Mammal Protection ActPDF
80 FR 54554 - Submission for OMB Review; Comment RequestPDF
80 FR 54534 - Proposed Information Collection; Comment Request; Access-Point Angler Intercept Survey (APAIS)PDF
80 FR 54570 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingPDF
80 FR 54574 - Agency Information Collection Activities: Petition for CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW; Extension, Without Change, of a Currently Approved CollectionPDF
80 FR 54575 - Agency Information Collection Activities: Monthly Report on Naturalization Papers, Form N-4; Extension, Without Change, of a Currently Approved CollectionPDF
80 FR 54576 - Agency Information Collection Activities: Application for Action on an Approved Application or Petition, Form I-824; Revision of a Currently Approved CollectionPDF
80 FR 54591 - Overview of Cuban Imports of Goods and Services and Effects of U.S. RestrictionsPDF
80 FR 54573 - Kentucky; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
80 FR 54596 - Freedom of Information Act (FOIA) Advisory Committee; MeetingPDF
80 FR 54418 - Hazardous Materials: Special Permit and Approvals Standard Operating Procedures and Evaluation ProcessPDF
80 FR 54447 - Guidance Under Section 2801 Regarding the Imposition of Tax on Certain Gifts and Bequests From Covered ExpatriatesPDF
80 FR 54407 - Universal Identifier and System of Award Management; CorrectionsPDF
80 FR 54471 - Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Infrastructure State Implementation Plan RequirementsPDF
80 FR 54659 - Scrapie in Sheep and GoatsPDF

Issue

80 175 Thursday, September 10, 2015 Contents Agency Agency for International Development NOTICES Appointments: Senior Executive Services Performance Review Board, 54511 2015-22792 Meetings: Building Human Capital—Nutrition is Fundamental, 54511 2015-22793 Senior Executive Service Performance Review Board Membership, 54512 2015-22796 Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Food and Nutrition Service

See

Food Safety and Inspection Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54512-54517 2015-22782
Animal Animal and Plant Health Inspection Service PROPOSED RULES Scrapie in Sheep and Goats, 54660-54692 2015-21909 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54555-54556 2015-22833 2015-22846 Broadcasting Broadcasting Board of Governors NOTICES Broadcasting Board of Governors FY-2013 Service Contract Analysis and FY-2014 Service Contract Inventory; Availability, 54517 2015-22861 Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54517-54518 2015-22812 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance for the 2020 Census Field Tests, 54518 2015-22789 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Medicare Program: Prohibition on Expansion of Facility Capacity under the Hospital Ownership and Rural Provider Exceptions to the Physician Self-Referral Prohibition; Exception Approval, 54565-54566 2015-22856 Civil Rights Civil Rights Commission NOTICES Meetings: Mississippi Advisory Committee; Correction, 54517 2015-22824 Coast Guard Coast Guard RULES Marine Vapor Control Systems, 54418 2015-22779 PROPOSED RULES Great Lakes Pilotage Rates: Annual Review and Changes to Methodology, 54484-54507 2015-22895 Commerce Commerce Department See

Census Bureau

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Consumer Product Consumer Product Safety Commission RULES Toys; Determination Regarding Heavy Elements Limits for Unfinished and Untreated Wood, 54417-54418 2015-22829 Defense Department Defense Department See

Army Department

See

Navy Department

Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Impact Evaluation of Data Driven Instruction Professional Development for Teachers, 54558 2015-22813 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Appliance Standards and Rulemaking Federal Advisory Committee: Central Air Conditioners and Heat Pumps Working Group to Negotiate a Notice of Proposed Rulemaking for Energy Conservation Standards, 54444 2015-22840 Walk-in Cooler and Freezer Refrigeration Systems Working Group to Negotiate Energy Conservation Standards, 54443 2015-22841 NOTICES Meetings: Hydrogen and Fuel Cell Technical Advisory Committee, 54559 2015-22798 Secretary of Energy Advisory Board, 54558-54559 2015-22809
Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Connecticut; Infrastructure Requirements, 54471-54483 2015-22027 Wisconsin; Disapproval of Infrastructure SIP with Respect to Oxides of Nitrogen as a Precursor to Ozone Provisions for the 2006 PM2.5 NAAQS, 54468-54471 2015-22863 Federal Aviation Federal Aviation Administration RULES Model Aircraft Operating Standards (June 9, 1981): Advisory Circular 91-57, 54417 2015-22828 PROPOSED RULES Establishment of Restricted Areas: Chincoteague Inlet, VA, 54444-54446 2015-22827 NOTICES Noise Exposure Maps: Memphis International Airport, Memphis, TN, 54652-54653 2015-22825 Federal Deposit Federal Deposit Insurance Corporation NOTICES Receiverships; Terminations: Community National Bank, Lino Lakes, MN, 54564 2015-22831 Terminations of Receivership: Community Security Bank, New Prague, MN, 54564 2015-22826 State Bank of Aurora, Aurora, MN, 54564 2015-22777 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 54564 2015-22929 Federal Emergency Federal Emergency Management Agency NOTICES Major Disaster Declarations: Kentucky; Amendment No. 1, 54573 2015-22693 Missouri; Amendment No. 1, 54573-54574 2015-22764 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 54559-54563 2015-22737 2015-22738 2015-22805 2015-22806 2015-22807 2015-22808 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: Cowlitz County, WA, 54654 2015-22874 State Route 95 Realignment Study; Interstate 40 to State Route 68, Mohave County, AZ, 54655 2015-22871 MAP-21 Comprehensive Truck Size and Weight Limits Study Deadline, 54653-54654 2015-22873 Federal Motor Federal Motor Carrier Safety Administration NOTICES Commercial Driver's License Standards; Exemption Applications: Daimler Trucks North America, 54655-54656 2015-22811 Federal Railroad Federal Railroad Administration NOTICES Applications for Approval of Discontinuance or Modification of a Railroad Signal System: Norfolk Southern Corp., 54656-54657 2015-22791 Petitions for Waivers of Compliance, 54657 2015-22790 Fish Fish and Wildlife Service NOTICES Requests for Nominations: Advisory Council on Wildlife Trafficking; Extension of Nominations Period, 54583 2015-22816 Food and Drug Food and Drug Administration PROPOSED RULES Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Administrative Docket Update; Availability, 54446-54447 2015-22757 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: New Animal Drugs for Investigational Use, 54569-54570 2015-22830 Animal Food; Export Certificates; Food and Drug Administration Food Safety Modernization Act; Certification Fees, 54569 2015-22795 Guidance: Distributor Labeling for New Animal Drugs, 54568-54569 2015-22772 International Conference on Harmonisation; Q3D Elemental Impurities, 54566-54567 2015-22835 Meetings: Osteoporosis Drug Development; Public Workshop, 54567-54568 2015-22784 Food and Nutrition Food and Nutrition Service RULES Clarification of Eligibility of Fleeing Felons, 54410-54417 2015-22763 Food Safety Food Safety and Inspection Service PROPOSED RULES Descriptive Designation for Needle or Blade Tenderized (Mechanically Tenderized) Beef Products; Correction, 54442 2015-22778 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 54594 2015-22923 Foreign Trade Foreign-Trade Zones Board NOTICES Expansions of Subzones: Cummins, Inc., Foreign-Trade Zone 77, Memphis, TN, 54520-54521 2015-22859 Production Activities: Bauer Manufacturing Inc., Foreign-Trade Zone 265, Conroe, TX, 54520 2015-22860 Quad-Cities, Iowa/Illinois; CNH Industrial America, LLC Subzone 133E, 54519-54520 2015-22853 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

NOTICES Meetings: Homeland Security Science and Technology Advisory Committee, 54574 2015-22838
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Accountability in the Provision of HUD Assistance Applicant/Recipient Disclosure/Update Report, 54580-54581 2015-22734 Core Performance Reporting Requirements for Competitively-Funded Grants, 54577-54579 2015-22758 Legal Instructions Concerning Applications for Full Insurance Benefits; Assignment of Multifamily Mortgages to the Secretary, 54581-54582 2015-22759 Neighborhood Stabilization Program 2 Reporting, 54582-54583 2015-22760 Personal Financial and Credit Statement, 54580 2015-22850 Improving the Previous Participation Reviews of Prospective Multifamily Housing and Healthcare Program Participants IInformational Conference Call, 54579-54580 2015-22762 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Indian Gaming Commission

See

Reclamation Bureau

See

Surface Mining Reclamation and Enforcement Office

Internal Revenue Internal Revenue Service PROPOSED RULES Guidance: Imposition of Tax on Certain Gifts and Bequests from Covered Expatriates, 54447-54468 2015-22574 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Hot-Rolled Carbon Steel Flat Products from India, 54521-54523 2015-22855 Certain Welded Carbon Steel Standard Pipes and Tubes from India, 54523 2015-22852 Frozen Warmwater Shrimp from India, 54524-54529 2015-22869 Silicomanganese from Kazakhstan, 54523-54524 2015-22851 World Health Organization Pandemic Influenza Preparedness Framework, 54529-54530 2015-22730 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Marine Sonar Imaging Devices, Including Downscan and Sidescan Devices, Products Containing the Same, and Components Thereof, 54592-54593 2015-22735 Overview of Cuban Imports of Goods and Services and Effects of U.S. Restrictions, 54591-54592 2015-22697 Judicial Conference Judicial Conference of the United States NOTICES Meetings: Committee on Rules of Practice and Procedure, 54593-54594 2015-22756 Justice Department Justice Department See

Foreign Claims Settlement Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Coal Lease Request, 54594 2015-22765
Labor Department Labor Department See

Mine Safety and Health Administration

Land Land Management Bureau NOTICES Realty Action: Modified Competitive Sealed Bid Sale of Public Land, Eddy County, NM, 54583-54586 2015-22797 Management Management and Budget Office RULES Universal Identifier and System of Award Management: Corrections, 54407-54410 2015-22074 Mine Mine Safety and Health Administration NOTICES Petitions for Modification of Existing Mandatory Safety Standards, 54594-54596 2015-22736 National Archives National Archives and Records Administration NOTICES Meetings: Freedom of Information Act Advisory Committee, 54596 2015-22685 National Indian National Indian Gaming Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54586-54589 2015-22847 National Institute National Institute of Standards and Technology NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Hollings Manufacturing Extension Partnership Program Application Requirements, 54530 2015-22788 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 54571 2015-22767 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 54570, 54573 2015-22706 2015-22800 National Institute of Allergy and Infectious Diseases, 54573 2015-22768 National Institute of Dental and Craniofacial Research, 54570 2015-22769 National Institute of Mental Health, 54572 2015-22766 National Institute on Aging, 54570, 54572 2015-22801 2015-22802 Proposed Start-up Exclusive Option License: Therapeutic Uses for Cardio-metabolic Indications, Including Hypertriglyceridemia, Hypercholesterolemia and Diabetes, 54571-54572 2015-22771 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod by Catcher/Processors Using Trawl Gear in the Western Regulatory Area of the Gulf of Alaska, 54440-54441 2015-22783 PROPOSED RULES Fisheries Off West Coast States: Coastal Pelagic Species Fisheries; Annual Specifications, 54507-54510 2015-22781 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54554 2015-22708 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Access-Point Angler Intercept Survey, 54534-54535 2015-22707 Cost-Earnings Surveys of American Samoa Longline Fishery, 54531 2015-22832 Reporting Requirements for Commercial Fisheries Authorization under Section 118 of the Marine Mammal Protection Act, 54532-54533 2015-22709 Southeast Region Permit Family of Forms, 54553-54554 2015-22720 Applications for Exempted Fishing Permits, 54531-54532 2015-22834 Takes of Marine Mammals Incidental to Specified Activities: Army Corps of Engineers during the Port of Miami Construction Project in Miami, FL; Withdrawal, 54554-54555 2015-22775 Mukilteo Multimodal Project Tank Farm Pier Removal Project, 54535-54544 2015-22776 Pier Maintenance Project, Naval Base Kitsap Bremerton, WA, 54544-54553 2015-22799 Workshops: Schedules for Atlantic Shark Identification and Protected Species Safe Handling, Release, and Identification, 54533-54534 2015-22836 Navy Navy Department NOTICES Environmental Impact Statements; Availability, etc.: Fighter Squadron Transitions, 54556-54557 2015-22773 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Specific Domestic Licenses to Manufacture or Transfer Certain Items Containing Byproduct Material, 54596-54598 2015-22794 Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 54598 2015-22956 Patent Patent and Trademark Office NOTICES Appointments: Performance Review Board, 54555 2015-22728 Peace Peace Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54598 2015-22804 Personnel Personnel Management Office NOTICES Meetings: Hispanic Council on Federal Employment, 54598 2015-22810 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Hazardous Materials: Special Permit and Approvals Standard Operating Procedures and Evaluation Process, 54418-54440 2015-22617 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 54599-54600 2015-22818 2015-22819 2015-22820 Postal Service Postal Service NOTICES Product Changes: Priority Mail Express Negotiated Service Agreement, 54600 2015-22721 Priority Mail Negotiated Service Agreement, 54600 2015-22718 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Labor Day (Proc. 9316), 54693-54696 2015-22997 EXECUTIVE ORDERS Government Agencies and Employees: Contractors, Paid Sick Leave; Establishment (EO 13706), 54697-54700 2015-22998 Presidio Presidio Trust NOTICES Meetings: Board of Directors, 54600-54601 2015-22857 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Central Valley Project Municipal and Industrial Water Shortage Policy, Central Valley, CA, 54589-54590 2015-22787 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54617, 54630-54631, 54634-54635 2015-22749 2015-22750 2015-22751 2015-22752 2015-22753 2015-22754 Meetings; Sunshine Act, 54629 2015-22911 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 54614-54617 2015-22745 BATS Y-Exchange, Inc., 54631-54634 2015-22755 BOX Options Exchange, LLC, 54621-54627 2015-22741 2015-22743 EDGA Exchange, Inc., 54635-54638 2015-22747 EDGX Exchange, Inc., 54617-54621, 54638-54640 2015-22739 2015-22746 ICE Clear Credit, LLC, 54627-54628 2015-22748 NASDAQ OMX BX, Inc., 54601-54614, 54640-54646 2015-22742 2015-22744 NYSE Arca, Inc., 54646-54648 2015-22845 The Options Clearing Corp., 54628-54629 2015-22740 Small Business Small Business Administration NOTICES Disaster Declarations: Alaska, 54650 2015-22882 Kentucky, 54649 2015-22884 New York, 54648-54649 2015-22879 Ohio, 54649-54650 2015-22870 Meetings: National Small Business Development Center Advisory Board, 54650 2015-22868 State Department State Department NOTICES Charter Renewals: Industry Advisory Group, 54651 2015-22880 Designation of Global Terrorist: Abu 'Ubaydah Yusuf al 'Anabi aka Yusuf Abu-'Ubaydah al-Anabi aka Abou Obeida Youssef al-Annabi aka Abu-Ubaydah Yusuf al-Inabi, 54650-54651 2015-22849 Surface Mining Surface Mining Reclamation and Enforcement Office NOTICES Stream Protection Rule, 54590-54591 2015-22878 Surface Transportation Surface Transportation Board NOTICES Railroad Revenue Adequacy, 2014 Determination, 54657-54658 2015-22770 Trade Representative Trade Representative, Office of United States NOTICES 2015 Special 301 Out-of-Cycle Review of Notorious Markets, 54651-54652 2015-22761 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Pipeline and Hazardous Materials Safety Administration

See

Surface Transportation Board

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, 54576-54577 2015-22700 Monthly Report on Naturalization Papers, 54575-54576 2015-22701 Petition for CNMI-Only Nonimmigrant Transitional Worker, 54574-54575 2015-22702 Separate Parts In This Issue Part II Agriculture Department, Animal and Plant Health Inspection Service, 54660-54692 2015-21909 Part III Presidential Documents, 54693-54700 2015-22997 2015-22998 Reader Aids

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

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.

80 175 Thursday, September 10, 2015 Rules and Regulations OFFICE OF MANAGEMENT AND BUDGET 2 CFR Parts 25 and 200 Universal Identifier and System of Award Management; Corrections AGENCY:

Executive Office of the President, Office of Management and Budget.

ACTION:

Correcting amendments.

SUMMARY:

The Office of Management and Budget (OMB) is correcting the final guidance that appeared in the Federal Register on September 14, 2010 (75 FR 55673) and December 26, 2013 (78 FR 78589). OMB is amending the guidance to make technical corrections where needed. The final guidance is revised to remove references to the “System of Award Management” and replace them with the correct term “System for Award Management”.

With respect to the technical corrections to the final guidance, these corrections are included only where it has come to the attention of the Council on Financial Assistance Reform (COFAR) that particular language in the final guidance did not match with the COFAR's intent and would result in an erroneous implementation of the guidance. These technical corrections will go into effect at the time of issuance.

Guidance on effective/applicability date is revised to allow a grace period of two fiscal years for non-Federal entities to implement changes to their procurement policies and procedures in accordance with guidance on procurement standards.

Other requirements in the section remain as originally published. Technical corrections are made to eliminate conflicting or unclear language and grammatical inconsistencies or citation errors throughout.

DATES:

Effective date: September 10, 2015.

Implementation date: For all non-Federal entities, there is a two-year grace period for implementation of the procurement standards in 2 CFR 200.317 through 200.326.

FOR FURTHER INFORMATION CONTACT:

Rhea Hubbard or Gil Tran, Office of Federal Financial Management, [email protected] or [email protected], or via telephone at (202) 395-3993.

SUPPLEMENTARY INFORMATION:

This is a summary of OMB's Erratum, 2 CFR 200 released on December 26, 2013. This is the second set of corrections. The first set of corrections was published in the Federal Register on December 19, 2014 (79 FR 75871). This document augments the corrections which were published in the Federal Register on December 19, 2014 (79 FR 75871).

Additional Outreach and Training

Since the issuance of the Uniform Guidance on December 26, 2013, the COFAR has developed and provided numerous additional resources to assist stakeholders in learning about the guidance. For a complete list and access to these resources, please visit the COFAR Web site at cfo.gov/COFAR. Resources available include a Frequently Asked Questions document, as well as several training webcasts. Please note that the Frequently Asked Questions document will be referenced as additional guidance in the 2015 issuance of Appendix XI to Part 200—Compliance Supplement.

List of Subjects 2 CFR Part 25

Administrative practice and procedures, Grants administration, Grant programs, Loan programs.

2 CFR Part 200

Accounting, Auditing, Colleges and universities, State and local governments, Grant programs, Grants administration, Hospitals, Indians, Nonprofit organizations, Reporting and recordkeeping requirements.

Mark Reger, Deputy Controller.

Under the authority of the Chief Financial Officer Act of 1990 (31 U.S.C. 503), the Office of Management and Budget amends 2 CFR parts 25 and 200 by making the following correcting amendments:

PART 25—UNIVERSAL IDENTIFIER AND SYSTEM FOR AWARD MANAGEMENT 1. The authority citation for part 25 continues to read as follows: Authority:

Pub. L. 109-282; 31 U.S.C. 6102.

2. Revise the heading of part 25 to read as set forth above.
§§ 25.100 and 25.310 and Appendix A to Part 25 [Amended]
3. Amend §§ 25.100 and 25.310 and Appendix A to Part 25 by removing references to “System of Award Management” wherever they appear, and adding, in their place, “System for Award Management”. PART 200—UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS 4. The authority citation for part 200 continues to read as follows: Authority:

31 U.S.C. 503.

§ 200.19 [Amended]
5. Amend § 200.19 paragraph (b) by removing “C.12” and adding, in its place “C.2.a.”.
6. In § 200.40 revise the introductory text of paragraph (a) and the the introductory text of paragraph (b), to read as follows:
§ 200.40 Federal financial assistance.

(a) Federal financial assistance means assistance that non-Federal entities receive or administer in the form of:

(b) For § 200.202 Requirement to provide public notice of Federal financial assistance programs and Subpart F—Audit Requirements of this part, Federal financial assistance also includes assistance that non-Federal entities receive or administer in the form of:

7. In § 200.101, revise the table in paragraph (b)(1), and revise paragraph (d)(1), to read as follows:
§ 200.101 Applicability.

(b) * * *

(1) * * *

This table must be read along with the other provisions of this section The following portions of this Part Are applicable to the following types of Federal Awards and Fixed-Price Contracts and Subcontracts (except as noted in paragraphs (d) and (e) below): Are NOT applicable to the following types of Federal Awards and Fixed-Price Contracts and Subcontracts: Subpart A—Acronyms and Definitions —All Subpart B—General Provisions, except for §§ 200.111 English Language, 200.112 Conflict of Interest, 200.113 Mandatory Disclosures —All §§ 200.111 English Language, 200.112 Conflict of Interest, 200.113 Mandatory Disclosures —Grant Agreements and cooperative agreements —Agreements for loans, loan guarantees, interest subsidies and insurance.
  • —Procurement contracts awarded by Federal Agencies under the Federal Acquisition Regulation and subcontracts under those contracts.
  • Subparts C-D, except for §§ 200.202 Requirement to provide public notice of Federal financial assistance programs, 200.303 Internal controls, 200.330-332 Subrecipient Monitoring and Management —Grant Agreements and cooperative agreements —Agreements for loans, loan guarantees, interest subsidies and insurance.
  • —Procurement contracts awarded by Federal Agencies under the Federal Acquisition Regulation and subcontracts under those contracts.
  • § 200.202 Requirement to provide public notice of Federal financial assistance programs —Grant Agreements and cooperative agreements
  • —Agreements for loans, loan guarantees, interest subsidies and insurance
  • —Procurement contracts awarded by Federal Agencies under the Federal Acquisition Regulation and subcontracts under those contracts.
    §§ 200.303 Internal controls, 200.330-332 Subrecipient Monitoring and Management —All Subpart E—Cost Principles —Grant Agreements and cooperative agreements, except those providing food commodities
  • —All procurement contracts under the Federal Acquisition Regulations except those that are not negotiated
  • —Grant agreements and cooperative agreements providing foods commodities.
  • —Fixed amount awards.
  • —Agreements for loans, loans guarantees, interest subsidies and insurance.
  • —Federal awards to hospitals (see Appendix IX Hospital Cost Principles).
  • Subpart F—Audit Requirements —Grant Agreements and cooperative agreements
  • —Contracts and subcontracts, except for fixed price contacts and subcontracts, awarded under the Federal Acquisition Regulation
  • —Agreements for loans, loans guarantees, interest subsidies and insurance and other forms of Federal Financial Assistance as defined by the Single Audit Act Amendment of 1996
  • —Fixed-price contracts and subcontracts awarded under the Federal Acquisition Regulation.

    (d) * * *

    (1) The block grant awards authorized by the Omnibus Budget Reconciliation Act of 1981 (including Community Services), except to the extent that Subpart E—Cost Principles of this Part apply to subrecipients of Community Services Block Grant funds pursuant to 42 U.S.C. 9916(a)(1)(B);

    8. Revise § 200.110, paragraph (a) to read as follows:
    § 200.110 Effective/applicability date.

    (a) The standards set forth in this part which affect administration of Federal awards issued by Federal awarding agencies become effective once implemented by Federal awarding agencies or when any future amendment to this part becomes final. Federal awarding agencies must implement the policies and procedures applicable to Federal awards by promulgating a regulation to be effective by December 26, 2014 unless different provisions are required by statute or approved by OMB. For the procurement standards in §§ 200.317-200.326, non-Federal entities may continue to comply with the procurement standards in previous OMB guidance (superseded by this part as described in § 200.104) for two additional fiscal years after this part goes into effect. If a non-Federal entity chooses to use the previous procurement standards for an additional two fiscal years before adopting the procurement standards in this part, the non-Federal entity must document this decision in their internal procurement policies.

    § 200.203 [Amended]
    9. In § 200.203(a)(5), remove “Financial” and add, in its place, “Domestic” 10. Revise § 200.305, paragraph (b)(9) introductory text to read as follows:
    § 200.305 Payment.

    (b) * * *

    (9) Interest earned amounts up to $500 per year may be retained by the non-Federal entity for administrative expense. Any additional interest earned on Federal advance payments deposited in interest-bearing accounts must be remitted annually to the Department of Health and Human Services Payment Management System (PMS) through an electronic medium using either Automated Clearing House (ACH) network or a Fedwire Funds Service payment. Remittances must include pertinent information of the payee and nature of payment in the memo area (often referred to as “addenda records” by Financial Institutions) as that will assist in the timely posting of interest earned on federal funds. Pertinent details include the Payee Account Number (PAN) if the payment originated from PMS, or Agency information if the payment originated from ASAP, NSF or another federal agency payment system. The remittance must be submitted as follows:

    11. Revise § 200.308, paragraph (c) to read as follows:
    § 200.308 Revision of budget and program plans.

    (c)(1) For non-construction Federal awards, recipients must request prior approvals from Federal awarding agencies for one or more of the following program or budget-related reasons:

    (i) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).

    (ii) Change in a key person specified in the application or the Federal award.

    (iii) The disengagement from the project for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.

    (iv) The inclusion, unless waived by the Federal awarding agency, of costs that require prior approval in accordance with Subpart E—Cost Principles of this part or 45 CFR part 75 Appendix IX, “Principles for Determining Costs Applicable to Research and Development under Awards and Contracts with Hospitals,” or 48 CFR part 31, “Contract Cost Principles and Procedures,” as applicable.

    (v) The transfer of funds budgeted for participant support costs as defined in § 200.75 Participant support costs to other categories of expense.

    (vi) Unless described in the application and funded in the approved Federal awards, the subawarding, transferring or contracting out of any work under a Federal award, including fixed amount subawards as described in § 200.332 Fixed amount subawards. This provision does not apply to the acquisition of supplies, material, equipment or general support services.

    (vii) Changes in the approved cost-sharing or matching provided by the non-Federal entity.

    (viii) The need arises for additional Federal funds to complete the project.

    (2) No other prior approval requirements for specific items may be imposed unless an exception has been approved by OMB. See also §§ 200.102 Exceptions and 200.407 Prior written approval (prior approval).

    § 200.320 [Amended]
    12. In § 200.320, paragraph (c)(2)(i), remove “state,” and remove “publically” and add, in its place “publicly”. 13. In § 200.330, revise the final sentence of paragraph (b) introductory text to read as follows:
    § 200.330 Subrecipient and contractor determinations.

    (b) * * * Characteristics indicative of a procurement relationship between the non-Federal entity and a contractor are when the contractor:

    14. Revise § 200.331, paragraphs (a)(1)(iv), (vi), (vii), (viii), and (x); (a)(2) and (a)(4) to read as follows:
    § 200.331 Requirements for pass-through entities.

    (a) * * *

    (1) * * *

    (iv) Federal Award Date (see § 200.39 Federal award date) of award to the recipient by the Federal agency;

    (vi) Amount of Federal Funds Obligated by this action by the pass-through entity to the subrecipient;

    (vii) Total Amount of Federal Funds Obligated to the subrecipient by the pass-through entity including the current obligation;

    (viii) Total Amount of the Federal Award committed to the subrecipient by the pass-through entity;

    (x) Name of Federal awarding agency, pass-through entity, and contact information for awarding official of the Pass-through entity;

    (2) All requirements imposed by the pass-through entity on the subrecipient so that the Federal award is used in accordance with Federal statutes, regulations and the terms and conditions of the Federal award;

    (4) An approved federally recognized indirect cost rate negotiated between the subrecipient and the Federal Government or, if no such rate exists, either a rate negotiated between the pass-through entity and the subrecipient (in compliance with this part), or a de minimis indirect cost rate as defined in § 200.414 Indirect (F&A) costs, paragraph (f);

    § 200.431 [Amended]
    15. In § 200.431, paragraph (h)(3) remove “Federal Government's” and add, in its place “non-Federal entity” and revise paragraph (j) to read as follows:
    § 200.431 Compensation—fringe benefits.

    (j)(1) For IHEs only. Fringe benefits in the form of undergraduate and graduate tuition or remission of tuition for individual employees are allowable, provided such benefits are granted in accordance with established non-Federal entity policies, and are distributed to all non-Federal entity activities on an equitable basis. Tuition benefits for family members other than the employee are unallowable.

    (2) Fringe benefits in the form of tuition or remission of tuition for individual employees not employed by IHEs are limited to the tax-free amount allowed per section 127 of the Internal Revenue Code as amended.

    (3) IHEs may offer employees tuition waivers or tuition reductions, provided that the benefit does not discriminate in favor of highly compensated employees. Employees can exercise these benefits at other institutions according to institutional policy. See § 200.466 Scholarships and student aid costs, for treatment of tuition remission provided to students.

    § 200.449 [Amended]
    16. In § 200.449, paragraph (e), remove “September 23” and add, in its place “July 1”. 17. Amend Appendix III to Part 200 as follows: a. In Section C.7, revise the first sentence. b. Amend the final sentence of Section C.11.a.(1), by adding “see” after `subrecipient,”.

    The revision reads as follows:

    Appendix III to Part 200—Indirect (F&A) Costs Identification and Assignment, and Rate Determination for Institutions of Higher Education (IHEs)

    C. * * *

    7. Except as provided in paragraph (c)(1) of § 200.414 Indirect (F&A) costs, Federal agencies must use the negotiated rates in effect at the time of the initial award throughout the life of the Federal award. * * *

    18. Amend Appendix IV to Part 200 as follows: a. In Section A., designate the second paragraph as Section A.1.2., and revise the newly designated paragraph. b. In Section B.2.e. amend the first sentence to remove “Federal funding of direct costs” and adding in its place “direct Federal funding” and remove “section A.3 of this Appendix” and add in its place “paragraph (a) of § 200.414 Indirect (F&A) costs”. c. In Section B.3.g. amend the final sentence by removing “section A.3 of this Appendix” and adding in its place “paragraph (a) of § 200.414 Indirect (F&) costs”, d. In Section C.2.b. amend the first sentence to remove “(e)” and add in its place “(f)”, e. In Section C.2.c. amend the first sentence to remove “(f)” and add in its place “(g)”.

    The revision reads as follows:

    Appendix IV to Part 200—Indirect (F&A) Costs Identification and Assignment, and Rate Determination for Nonprofit Organizations

    2. “Major nonprofit organizations” are defined in paragraph (a) of § 200.414 Indirect (F&A) costs. See indirect cost rate reporting requirements in sections B.2.e and B.3.g of this Appendix.

    19. Amend Appendix V to Part 200 by revising Section E.2. to read as follows: Appendix V to Part 200—State/Local Governmentwide Central Service Cost Allocation Plans 2. Allocated Central Services

    For each allocated central service*, the plan must also include the following: a brief description of the service, an identification of the unit rendering the service and the operating agencies receiving the service, the items of expense included in the cost of the service, the method used to distribute the cost of the service to benefitted agencies, and a summary schedule showing the allocation of each service to the specific benefitted agencies. If any self-insurance funds or fringe benefits costs are treated as allocated (rather than billed) central services, documentation discussed in subsections 3.b. and c. must also be included.

    [FR Doc. 2015-22074 Filed 9-9-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 272 and 273 RIN 0584-AE01 Clarification of Eligibility of Fleeing Felons AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Final rule.

    SUMMARY:

    This rule implements Section 4112 of the Food, Conservation, and Energy Act of 2008. Section 4112 amended Section 6(k) of the Food and Nutrition Act of 2008 to require the Secretary of Agriculture to define the terms “fleeing” and “actively seeking” to ensure that State agencies use consistent procedures regarding the disqualification of a fleeing felon from eligibility for SNAP benefits when the individual is fleeing to avoid prosecution, custody or confinement after conviction for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing (or a high misdemeanor in New Jersey) or is violating a condition of probation or parole under Federal or State law.

    DATES:

    This rule is effective November 9, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Sasha Gersten-Paal, Certification Policy Branch, Program Development Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302, (703) 305-2507.

    SUPPLEMENTARY INFORMATION:

    Background

    The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193 (PRWORA) amended Section 6 of the Food Stamp Act of 1977 (now entitled The Food and Nutrition Act of 2008) (the Act) to disqualify fleeing felons from the Supplemental Nutrition Assistance Program (SNAP). To be disqualified under the fleeing felon provisions of PRWORA, an individual must be either: Fleeing to avoid prosecution, custody or confinement after conviction for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing (or a high misdemeanor in New Jersey); or violating a condition of probation or parole imposed under Federal or State law. The intent of the law was to prohibit individuals who were intentionally fleeing to avoid prosecution or imprisonment from receiving SNAP benefits and to aid law enforcement officials actively seeking to apprehend those fleeing to avoid prosecution or custody by providing them with needed information as allowable under the Act. The disqualification provisions were codified in the SNAP regulations on January 17, 2001, at 66 FR 4438. For simplicity, throughout the balance of this preamble we will use the term felony to encompass felonies, and, in the State of New Jersey, felonies and high misdemeanors.

    Section 4112 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246) amended Section 6(k) of the Act to require the Secretary of Agriculture to define the terms “fleeing” and “actively seeking” to ensure State agencies use consistent procedures to disqualify individuals fleeing to avoid prosecution, custody or confinement after conviction for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing or is violating a condition of probation or parole under Federal or State law. On August 19, 2011, the U.S. Department of Agriculture's (USDA) Food and Nutrition Service (FNS) published a proposed rule at 76 FR 51907, providing proposed definitions for “fleeing” and “actively seeking”, and procedures for disqualifying individuals determined to be fleeing or violating a condition of probation or parole. Readers are directed to the proposed rule for a more thorough description of the policies in effect prior to the publication of the proposed rule and for the reasons the Department was directed to define these terms. The Department received thirty-seven comments on the proposed rule. Comments were received from State agencies, legal service organizations, advocacy groups, state investigative agencies, and private citizens.

    The regulations governing the fleeing felon and parole and probation violators are found at 7 CFR 272.1(c)(1)(vii) Disclosure, 7 CFR 273.1(b)(7)(ix) Special household requirements, 7 CFR 273.2(b)(4)(ii) Privacy Act Statement, and 7 CFR 273.11(n) Fleeing Felons and probation or parole violators. The Department proposed revising § 273.11(n) in its entirety. The Department also proposed a conforming amendment for 7 CFR 272.1(c)(1)(vii) Disclosure.

    Section 202 of PRWORA established similar provisions for Supplemental Security Income (SSI). The Social Security Administration (SSA) developed more rigorous standards than FNS in implementing the legislative provision. SSA's Social Security Program Operations Manual System (POMS) provided that an individual is ineligible to receive SSI benefits beginning any month in which a warrant, court order or decision, or an order of decision by an appropriate agency is issued which finds that individual is wanted in connection with a crime that is a felony. SSA was sued in multiple courts on its policy. On September 24, 2009, the United States District Court for the Northern District of California approved a settlement agreement in the case of Martinez v. Astrue, Civ. No. 08-cv-04735 cw. Under that settlement, SSA will suspend or deny benefits to an individual only if a law enforcement officer presents an outstanding felony arrest warrant for any of three categories of National Crime Information Center (NCIC) Uniform Offense Classification Codes: Escape (4901), Flight to Avoid (prosecution, confinement, etc.) (4902), and Flight-Escape (4999). This method of identifying fleeing felon status is referred to throughout the rest of the preamble as Martinez for ease of reference.

    In developing the proposed rule, the Department did not adopt the Martinez settlement for SNAP. As explained more thoroughly in the preamble to the proposed rule, after FNS' implementation of PRWORA requirements, the FCEA contained specific direction for additional amendments to SNAP requirements surrounding the disqualification of felons. At the same time, FNS believed that SSA's implementation of its PRWORA requirements were overly rigorous. Because the direction to FNS in the FCEA preceded the settlement agreement in Martinez, FNS did not believe it was appropriate to follow the Martinez settlement. However, the Department did express interest in hearing from commenters whether they believed that SNAP should follow the Martinez settlement in defining a fleeing felon. Twenty-two of the thirty-seven commenters recommended that the Department adopt the Martinez settlement. The Department has taken those comments into consideration in developing this final rule and is incorporating Martinez as an alternative test for establishing whether an individual is a fleeing felon and whether a law enforcement agency is actively seeking the individual.

    Fleeing Felons

    In § 273.11(n), the Department proposed that, before a State agency determines an individual to be a “fleeing” felon, the following four criteria must be met: (1) There has to be a felony warrant for an individual; (2) the individual has to be aware of, or should reasonably have been able to expect that, a warrant has or would have been issued; (3) the individual has to have taken some action to avoid being arrested or jailed; and (4) a law enforcement agency must be actively seeking the individual. The Department proposed that all four items have to be present and verified by the State agency to determine that an individual is a fleeing felon (i.e., there is an outstanding felony warrant, the State agency has documented evidence that the individual knew about the warrant or could reasonably have anticipated a warrant was going to be issued, the State agency has documentation that the individual took an action to avoid arrest or jail for the felony, and a law enforcement agency is actively seeking the individual).

    The proposed rule allowed one exception to the four-part test. This exception provided that FNS would consider an individual to be a fleeing felon if a law enforcement officer presents an outstanding felony arrest warrant for any of three categories of NCIC Uniform Offense Classification Codes: Escape (4901), Flight to Avoid (prosecution, confinement, etc.) (4902), and Flight-Escape (4999) to a State agency to obtain information on the location of and other information about the individual named in the warrant, in accordance with the provisions of Section 11(e)(8)(E) of the Act. Although the Department indicated in the proposed rule the intention not to adopt Martinez, the proposed exception essentially was Martinez, and an alternative to the four-part test. For this and other reasons discussed subsequently, in this final rule a State agency may adopt either the four-part test or, as an alternative, the Martinez test for purposes of determining whether an individual is a fleeing felon.

    Thirteen commenters supported the four-part test, although, as noted above, most of those supporting it would prefer the Department adopt the Martinez test. One commenter recommended that we allow each State agency the option to adopt either the four-part test or the Martinez test.

    Ten commenters opposed the four-part test, although the reasons for opposition were not consistent. Two commenters opposed the requirement that State agencies have the responsibility to verify fleeing felon status instead of the household. Eight commenters supported the proposed requirement. The Department is adopting the requirement that the State agency has responsibility for obtaining verification of fleeing felon status. Since publication of the proposed rule, we have determined that the requirement that the State agency, not the household, has responsibility for verification of fleeing felon and probation or parole violation status should also be addressed in 7 CFR 273.2(f) (Verification). Consequently, the Department has added a provision to 7 CFR 273.2(f)(5)(i) that places responsibility for verification of fleeing felon on the State agency.

    One commenter pointed out that the regulations needed to clarify that the underlying cause for the warrant was for a felony offense. The Department agrees and has revised § 273.11(n) to clarify that the underlying crime for which the warrant was issued was for committing a crime or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing.

    Five commenters were concerned about the requirement that the State agency verify that the individual was aware or should have been aware of a warrant and/or that the individual had taken some action to avoid being arrested or jailed (parts 2 and 3 of the 4-part test of fleeing felon). The Department is aware that these are difficult determinations. However, it is impossible for the Department to supply an exhaustive list of actions that would constitute knowledge in either circumstance. Evidence provided by a law enforcement officer that the individual left the jurisdiction following a court appearance would be indicative of the individual taking action to avoid being arrested or jailed, for instance, but moving from one home to another would not be evidence of either part of the test. The State agency will have to evaluate each case separately, using a reasonable standard established by the State to ensure consistency for all cases, and document the case file accordingly.

    Five commenters opposed the four-part test because they believed that the current tests are sufficient or that the proposal was too complex, and that a warrant in and of itself should be sufficient to identify a person as a fleeing felon. Two of these five commenters were investigative agencies and one was an organization representing investigative agencies. One commenter was a State agency who reported that its fraud investigators felt the Department had no authority to dictate a time frame for a law enforcement agency to act on a warrant. The fifth was a private citizen. The investigative agencies, in particular, wanted the policies to remain the same. While we understand the concerns expressed by the investigative agencies, the Department cannot leave the regulations as currently written. The Department is required by law to define the terms “fleeing felon” and “actively seeking.” Congress, in enacting section 4112 and the legislative history supporting it, as documented in the proposed rule, made it clear that the current policies were not sufficient. The Department is not dictating the time frame for a law enforcement officer to act on a warrant. The Department is simply defining “actively seeking” for SNAP purposes, establishing when an individual must be disqualified under the fleeing felon provisions of the Act. That definition does not require a law enforcement agency to act within those time frames.

    To more closely mirror the language in the Act, and to improve consistency of terms, the Department is revising certain terms referred to in the regulatory text of the final rule. In particular, the Department specifies that warrants are felony warrants that law enforcement agencies must be Federal, State or local law enforcement agencies, and that law enforcement officials must be acting in their official capacity, in the text of the final regulations. For consistency, the Department also adds to the text of the final regulation that not only if a law enforcement agency does not indicate that it intends to enforce a felony warrant, but also if a law enforcement agency does not intend to arrest an individual for probation or parole violations, within 30 days, the State agency shall not determine the person is a fleeing felon or probation or parole violator. In addition, the Department makes other minor changes in the final rule text to improve readability and legal clarity.

    One commenter raised concerns about the difficulty of serving warrants on Indian reservations. While the Department recognizes that an Indian reservation may not cooperate with a local law enforcement agency concerning enforcement of a warrant, the Department does not believe that it is appropriate to disqualify an individual indefinitely from food assistance because of jurisdictional issues that cannot be resolved. It should be noted, however, that as long as the law enforcement agency continues to attempt to enforce the warrant, the law enforcement agency would be considered to be actively seeking the individual. The State agency would need verification from the law enforcement agency that it is continuing its attempts to enforce the warrant and would need to document the case file accordingly.

    The Department finds the commenters' arguments supporting the use of the Martinez test persuasive. As discussed in the proposed rule and above, the Department believed the initial factors subject to the suit in Martinez to be too stringent and inappropriate for purposes of SNAP and that the legislative intent of the FCEA (post Martinez decision) required distinct, uniform, and clear standards. However, in light of the comments to the proposed rule, the Department is persuaded that the Martinez approach can still support the uniformity and clarity required by the FCEA. As demonstrated by the public's response to the Department's requests for specific feedback on this matter, allowing the Martinez test as an alternative to the Department's four-part test has garnered significant support as a usable and administratively feasible way to also implement the FCEA's requirements of uniformity and clarity. For example, one commenter, an association representing State agencies, commented that the proposed rule definition would require a complex and time-consuming series of steps that must be taken for disqualification of each individual, and includes criteria that cannot be known with objective certainty. The Martinez test, in contrast, provides simplicity and certainty due to its objective enforceability—the presentation of a felony arrest warrant by a law enforcement officer. This commenter also explained that although some States had implemented approaches similar to the four-part test in the Department's proposed rule, a number of States had already implemented the Martinez test or were planning to do so. This established, real world use and commenter response demonstrates the value and reliability of the Martinez test.

    The objective standard used by Martinez—the presentation of a felony arrest warrant based on one of the three NCIC categories by a law enforcement officer—effectively establishes uniform definitions of “fleeing” and “actively seeking,” as required by the FCEA. The definition of “fleeing” is uniformly established by requiring that the individual's actions must fit within one of the three NCIC Uniform Offense Classification Codes, Escape (4901), Flight to Avoid (prosecution, confinement, etc.) (4902), and Flight-Escape (4999). The presentation of a felony arrest warrant to a State agency by a law enforcement officer establishes that the law enforcement agency is “actively seeking” the individual.

    On further review, based on the comments received, the Department has decided to require State agencies to adopt the definitions of fleeing felon and actively seeking as proposed by using either the four-part test or the Martinez test. This allows State agencies the flexibility to determine which test best suits their needs and administrative structures, while still requiring uniform definitions, standards and procedures.

    Each State agency will have to submit an amendment to its State Plan identifying the option it selects. We have added a requirement to 7 CFR 272.2(d)(1) to mandate that each State agency identify the option chosen in its State plan and have modified § 273.11(n) to reflect the two alternative tests to establish whether a person is a fleeing felon.

    Three commenters raised concerns about inconsistency with SSA and State Combined Application Projects (CAP). The Department does not believe that inconsistency between the two agencies will present a problem. An individual disqualified by SSA as a fleeing felon would not be eligible for the State's CAP. If the question of whether an individual may be a fleeing felon arises in the SNAP office, it will be the State agency's responsibility to determine if the individual meets its definition of fleeing felon status. Each State agency using the four-part test would also remain responsible for determining “actively seeking” in the event that an individual is identified as a fleeing felon or probation or parole violator, regardless of whether the individual is participating through a CAP. Also, if a law enforcement officer approaches the State agency with a felony warrant, the State agency would still have to make a determination of fleeing felon status for a CAP SNAP participant. So, the State agency would not be relying on the SSA determination of fleeing felon status.

    Probation and Parole Violators

    Section 6(k) of the Act prohibits any individual from participating in SNAP during any period in which the individual is violating a condition of probation or parole imposed under a Federal or State law. Neither the term “fleeing” nor “felony” is referenced in the prohibition from participating based on probation or parole violation. Additionally, the Act and the legislative history of the Act provide no guidance about what constitutes a probation or parole violation. Likewise, the Act does not limit such violations to felony charges only. Therefore, the Department proposed that the disqualification apply to all identified probation or parole violations. The Department received no comments addressing this aspect of the proposal and is adopting the provision that an individual determined to have violated any probation or parole imposed under Federal or State law will be disqualified from SNAP eligibility.

    In the proposed rule, we proposed that in order for an individual to be a probation or parole violator, (1) the individual must have violated a condition of his or her probation or parole, and (2) law enforcement must be actively seeking the individual to enforce the conditions of the probation or parole.

    The Department received eighteen comments on the proposed standards and procedures for determining whether an individual should be considered a probation or parole violator. Fourteen of those commenters requested that the regulation specify that an impartial party must make a determination that there has been a probation or parole violation. The Department agrees with these commenters that only an impartial party should determine whether an individual violated probation or parole imposed under Federal or State law. The State agency has the discretion to determine what constitutes an impartial party. The provision at § 273.11(n)(2) has been modified accordingly. Two commenters wanted the Department to make no changes to the current standards and procedures. One was an investigative agency, the other a private citizen. Congress directed the Department to address the lack of clarity in the current procedures; therefore, the Department cannot accommodate these two commenters.

    As discussed in the preamble to the proposed rule, Section 6(k)(2) of the Act requires the Department to ensure that “actively seeking” is defined, and that consistent procedures are established that disqualify individuals whom law enforcement authorities are actively seeking for the purpose of holding criminal proceedings against the individual. In the proposed rule, we interpreted Section 6(k)(2) to also require the application of the term “actively seeking” to probation and parole violators. We proposed in § 273.11(n) that State agencies follow the same procedures for verifying through law enforcement whether an applicant or participant is a probation or parole violator as those used to determine if an individual is a fleeing felon. This would ensure that there are consistent procedures in place for establishing if a law enforcement office is actively seeking an individual, whether that individual is a fleeing felon or a probation or parole violator. One commenter, an investigator, wanted the current procedure that does not define actively seeking to remain in place. Because we are required by law to define “actively seeking,” we have adopted the definition of “actively seeking” for probation and parole violators as proposed. We have also determined that State agencies have the responsibility of verifying the parole or probation violator status of an individual.

    Application Processing

    As discussed in the proposed rule, the time necessary for determining fleeing felon or probation or parole violator status may extend beyond the time frames allowed under 7 CFR 273.2(g) and 7 CFR 273.2(i)(3) for State agencies to process applications. Therefore, the Department proposed in § 273.11(n)(5) that if a State agency needs to act on an application without determining fleeing felon or probation or parole violator status in order to comply with the time frames allowed under 7 CFR 273.2(g) and 7 CFR 273.2(i)(3), the State agency shall process the application without consideration of the individual's fleeing felon or probation or parole violator status.

    Three commenters raised concerns about expedited service. As proposed in § 273.11(n)(5), the State agency would be required to meet the time frames for providing expedited service in 7 CFR 273.2(i)(3) if fleeing felon or probation or parole violator status could not be resolved within the expedited service time frames. The Department is adopting § 273.11(n)(5) as proposed.

    One commenter raised a concern about determining when a person ceases to be a fleeing felon or a probation or parole violator (e.g., when the warrant expires, when the individual is arrested, at the next reporting period, or at recertification). That commenter recommended that an individual be disqualified until the individual is arrested. The Act does not define a specific period for which an individual is denied or terminated for being a fleeing felon or a probation or parole violator. It simply provides that the individual is disqualified if the individual is a fleeing felon or a probation or parole violator. It is the Department's view that an individual is only a fleeing felon or a parole or probation violator for SNAP purposes if that individual meets the definition in § 273.11(n). Therefore, assuming the law enforcement agency has not arrested the individual who is therefore ineligible because he or she is a resident of an institution, the individual would be free to apply for SNAP at any time. A new determination of fleeing felon or probation or parole violator would need to be made each time the individual applies. The Department recognizes that this could result in churning (that is, when a SNAP case exits the program and then reenters within four months or less); however, there is no provision in the Act that would establish a time period for disqualification or preclude the individual from reapplying.

    Privacy Act, Simplified Reporting, and Transitional Benefits

    It should be noted that the Privacy Act provisions and confidentiality provisions found at Section 11(e)(8) of the Act remain intact for individuals subject to the fleeing felon and parole or probation violator provisions of the Act. Therefore, the Department is reminding the reviewers of this rule that the provisions regarding the process of providing information to law enforcement officials only applies to legitimate law enforcement officers. Information about potential fleeing felons or parole or probation violators must not be released to individuals reporting possible violations by recipients or applicants, such as bounty hunters.

    Under 7 CFR 273.12(a)(5), State agencies are permitted to place households under a simplified reporting system. Under such a system, the State agency may choose to act on all changes in household circumstances (7 CFR 273.12(a)(5)(vi)(A)), or to act on any change if it would increase the household's benefits and not act on any change that would decrease the household's benefits, unless the household has voluntarily requested that its case be closed, the State agency has information about the household's circumstances considered verified upon receipt, or there has been a change in the household's public assistance grant (7 CFR 273.12(a)(5)(vi)(B)). If an individual has been determined to be a fleeing felon or a probation or parole violator in accordance with 7 CFR 273.11(n), the Act prohibits this individual from participating in SNAP. In order to ensure that the individual is removed from the program in accordance with the requirements of the Act, the Department proposed to add a requirement to 7 CFR 273.12(a)(5)(vi)(B) that the State agency act to remove the individual even though it might result in a decrease in benefits. Two comments were received on this proposal. One commenter supported removing the individual; the other commenter opposed removing the individual as it complicates simplified reporting and requires additional computer programming. No commenter raised a legal point that would allow an individual to continue to participate due to the restrictions of simplified reporting, and because an individual determined to be a fleeing felon or a probation or parole violator is prohibited by the Act from participating in the program, the individual cannot be allowed to participate regardless of the household's reporting system. Therefore, the Department has adopted the provision as proposed.

    Subpart H of Part 273, beginning at § 273.26, which was promulgated in accordance with Section 4115 of the Farm Security and Rural Investment Act of 2002 (FSRIA), Pub. L. 107-17, permits households leaving the Temporary Assistance for Needy Families (TANF) program to receive transitional benefits for households. Section 4115 refers to ineligible households rather than ineligible household members. The regulations at 7 CFR 273.26 provide that State agencies may choose to limit transitional benefits to households in which all members had been receiving TANF, or may provide benefits to any household in which at least one member had been receiving TANF. Households in which all members are disqualified for being fleeing felons or probation or parole violators are clearly excluded from receiving transitional benefits. Once approved for transitional benefits, the benefit amount cannot be changed unless the State agency has opted to adjust the benefit in accordance with 7 CFR 273.27. Consequently, the Department proposed that, in order to conform to the intent of section 4115 of the FSRIA concerning ineligible households rather than ineligible household members, the State agency shall not take action to adjust a household's transitional benefit amount because an individual in that household has been determined to be a fleeing felon or a probation or parole violator, unless the provisions of 7 CFR 273.27 are applicable. The Department did, however, express interest in seeking comments about this decision to continue transitional benefits for the entire household when an individual household member has been determined to be a fleeing felon or probation or parole violator.

    The Department received five comments about transitional benefits. Three commenters supported continuing transitional benefits for the entire household when a household member has been determined to be a fleeing felon or probation or parole violator. One commenter misunderstood and thought the Department was proposing to remove the individual, not keep the benefits unchanged. One commenter opposed the preamble explanation, and recommended that the fleeing felon be removed from the household and the benefits reduced. The Department is finalizing the prohibition that a State shall not adjust a household's transitional benefit amount because an individual in that household has been determined to be a fleeing felon or a probation or parole violator, unless the provisions of 7 CFR 273.27 are applicable. The Department continues to believe this decision conforms to the intent of section 4115 of the Farm Security and Rural Investment Act concerning ineligible households rather than ineligible household members.

    Miscellaneous

    Since publication of the proposed rule, two issues related to the provision disqualifying fleeing felons from participation, but not addressed in the proposed rule, have come to the Department's attention. When the final rule, Personal Responsibility Provisions of the Personal Responsibility Act of 1996 (66 FR 4438), January 17, 2001, was published, the preamble explained that the proposed paragraph 7 CFR 272.1(c)(1)(vii) essentially tracked the statutory language, including the requirement for the name of the household member being sought to be provided when requesting disclosure of household information. However, the actual language of paragraph 7 CFR 272.1(c)(1)(vii), in both the proposed rule and the final rule, omitted the requirement that the law enforcement officer provide the name of the individual being sought. Section 11(e)(8)(E) of the Act requires that the law enforcement officer furnish the State agency with the name of the household member being sought. This was a technical oversight that needs to be corrected. Therefore, the Department is adding this requirement at 7 CFR 272.1(c)(1)(vii) through this final rulemaking.

    Following publication of the proposed rule, State agencies requested policy clarifications from FNS regional offices about how to determine the time period for establishing claims for individuals identified as fleeing felons or as probation or parole violators. Although we did not receive any formal comments about this issue, the Department would like to clarify that, for purposes of SNAP, an individual is not considered a fleeing felon or a probation or parole violator until a determination has been made in accordance with 7 CFR 273.11(n). Therefore, the date of the determination of fleeing felon or probation or parole violator status would be the date from which any claims calculation would be made.

    Procedural Matters Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

    Regulatory Impact Analysis

    This rule has been designated as not significant by the Office of Management and Budget, therefore, no Regulatory Impact Analysis is required.

    Regulatory Flexibility Act

    This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612). Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities. Individuals identified as fleeing felons or probation or parole violators will be affected by having their participation in the program terminated. The requirement to terminate such individuals' participation already exists. This rule only clarifies what participants will be determined to be fleeing felons or probation or parole violators. It is anticipated that potentially fewer participants will be terminated than under the previous requirements. State and local welfare agencies will be the most affected to the extent that they administer the program.

    Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under Section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or Tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

    This final rule does not contain any Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and Tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

    Executive Order 12372

    The Supplemental Nutrition Assistance Program is listed in the Catalog of Federal Domestic Assistance Programs under 10.551.

    For the reasons set forth in the final rule in 7 CFR part 3015, subpart V, and related Notice (48 FR 29115, June 24, 1983), this program is excluded in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

    Federalism Summary Impact Statement

    Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have Federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132. FNS has considered this rule's impact on State and local agencies and has determined that it does not have Federalism implications under Executive Order 13132.

    Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with this rule's provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

    Civil Rights Impact Analysis

    FNS has reviewed this final rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities.

    Section 821 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193 (PRWORA) amended Section 6 of the Act to prohibit fleeing felons and parole violators from participating in the program. This prohibition was codified in SNAP regulations by the final rule “Food Stamp Program; Personal Responsibility Provisions of the Personal Responsibility and Work opportunity Reconciliation Act of 1996” (66 FR 4438). SNAP regulations at 7 CFR 273.11(n) addresses the prohibition for participation by an individual identified as a fleeing felon or a probation or parole violator. The existing regulations do not define “fleeing” and do not provide procedures for the State agency to use in disqualifying an individual identified as a fleeing felon or a probation or parole violator. Section 6(k) of the Act requires the Secretary of Agriculture to define the terms “fleeing” and “actively seeking” to ensure SNAP State agencies use consistent procedures to disqualify individuals. After a careful review of the rule's intent and provisions, FNS has determined that there is no way to determine whether the rule would have any impact on minorities, women, and persons with disabilities. FNS does not collect information on persons disqualified under the fleeing felon and parole violation provisions. Such a new collection would be difficult information to capture and cause an unnecessary burden on State agencies. Therefore, we are unable to determine whether a disproportionate number of minorities, women, and persons with disabilities are disqualified. This rule provides greater direction on what constitutes a fleeing felon or parole violator, what constitutes actively seeking, and more uniform procedures among the States. The impact of the rule may be to lower the number of individuals disqualified, but without information on the number currently being disqualified or information on the number of warrants that will be applicable under the procedures, there is no way to determine if there actually will be a reduction. Nor, without such data being available is there a way to determine if the new provisions affect minorities, women, and persons with disabilities more than the general SNAP caseload.

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 1320) requires the Office of Management and Budget (OMB) to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. Under this final rule State agencies will have to submit an amendment to its State Plan identifying which definition of “fleeing felon” it selects. Reporting burden for annual State Plan of Operations Updates, such as the requirement at 272.2(d)(1) to indicate the definition of fleeing felon, is included in a currently approved information collection (OMB Control Number 0584-0083, expiration date 4/30/2017). The impact of this rule on the existing burden is negligible and therefore no modification to the current requirements is necessary.

    E-Government Act Compliance

    The Food and Nutrition Service is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    Executive Order 13175

    Executive Order 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.

    We are unaware of any current Tribal laws that could be in conflict with the final rule. We did not receive any comments from Tribal organizations. One commenter raised concerns about the difficulties local law enforcement officers may have trying to enforce a warrant on tribal land. That is not a SNAP concern; it is a law enforcement concern. This regulation does not require any change in operations for the Tribal organizations.

    List of Subjects 7 CFR Part 272

    Alaska, Civil rights, Supplemental Nutrition Assistance Program, Grant programs—social programs, Penalties, Reporting and recordkeeping requirements.

    7 CFR Part 273

    Administrative practice and procedures, Aliens, Claims, Supplemental Nutrition Assistance Program, Fraud, Grant programs—social programs, Penalties, Reporting and recordkeeping requirements, Social Security, Students.

    For the reasons set forth in the preamble, 7 CFR parts 272 and 273 are amended as follows:

    1. The authority citation for Parts 272 and 273 continue to read as follows: Authority:

    7 U.S.C. 2011-2036.

    PART 272—REQUIREMENTS FOR PARTICIPATING STATE AGENCIES 2. Revise § 272.1(c)(1)(vii) to read as follows:
    § 272.1 General terms and conditions.

    (c) * * *

    (1) * * *

    (vii) Local, State, or Federal law enforcement officers acting in their official capacity, upon written request by such law enforcement officers that includes the name of the household member being sought, for the purpose of obtaining the address, social security number, and, if available, photograph of the household member, if the member is fleeing to avoid prosecution or custody for a crime, or an attempt to commit a crime, that would be classified as a felony (or a high misdemeanor in New Jersey), or is violating a condition of probation or parole imposed under a Federal or State law. The State agency shall provide information regarding a household member, upon written request of a law enforcement officer acting in his or her official capacity that includes the name of the person being sought, if the other household member has information necessary for the apprehension or investigation of the other household member who is fleeing to avoid prosecution or custody for a felony, or has violated a condition of probation or parole imposed under Federal or State law. The State agency must accept any document that reasonably establishes the identity of the household member being sought by law enforcement authorities. If a law enforcement officer provides documentation indicating that a household member is fleeing to avoid prosecution or custody for a felony, or has violated a condition of probation or parole, the State agency shall follow the procedures in § 273.11(n) to determine whether the member's eligibility in SNAP should be terminated. A determination and request for information that does not comply with the terms and procedures in § 273.11(n) would not be sufficient to terminate the member's participation. The State agency shall disclose only such information as is necessary to comply with a specific written request of a law enforcement agency authorized by this paragraph.

    3. Amend § 272.2 by adding new paragraph (d)(1)(xvii) to read as follows:
    § 272.2 Plan of operation.

    (d) * * *

    (1) * * *

    (xvii) A plan indicating the definition of fleeing felon the State agency has adopted, as provided for in § 273.11(n).

    PART 273—CERTIFICATION OF ELIGIBLE HOUSEHOLDS 4. Amend § 273.2 by adding a new sentence at the end of paragraph (f)(5)(i) to read as follows:
    § 273.2 Office operations and application processing.

    (f) * * *

    (5) * * *

    (i) * * * However, the State agency has primary responsibility for verifying fleeing felon and parole or probation violator status in accordance with § 273.11(n).

    5. Amend § 273.11 by adding paragraphs (n)(1) through (5) to read as follows:
    § 273.11 Action on households with special circumstances.

    (n) * * *

    (1) Fleeing felon. An individual determined to be a fleeing felon shall be an ineligible household member. To establish an individual as a fleeing felon, a State agency must verify that an individual is a fleeing felon as provided in paragraph (n)(1)(i) of this section, or a law enforcement official acting in his or her official capacity must have provided the State agency with a felony warrant as provided in paragraph (n)(1)(ii) of this section. The State shall specify in its State plan of operation which fleeing felon test it has adopted as required at § 272.2(d)(1)(xvii) of this chapter.

    (i) Four-part test to establish fleeing felon status. To establish that an individual is a fleeing felon, the State agency must verify that:

    (A) There is an outstanding felony warrant for the individual by a Federal, State, or local law enforcement agency, and the underlying cause for the warrant is for committing or attempting to commit a crime that is a felony under the law of the place from which the individual is fleeing or a high misdemeanor under the law of New Jersey;

    (B) The individual is aware of, or should reasonably have been able to expect that, the felony warrant has already or would have been issued;

    (C) The individual has taken some action to avoid being arrested or jailed; and

    (D) The Federal, State, or local law enforcement agency is actively seeking the individual as provided in paragraph (n)(3) of this section.

    (ii) Alternative test to establish fleeing felon status. Alternatively, a State agency may establish that an individual is a fleeing felon when a Federal, State, or local law enforcement officer acting in his or her official capacity presents an outstanding felony arrest warrant that conforms to one of the following National Crime Information Center Uniform Offense Classification Codes, to the State agency to obtain information on the location of and other information about the individual named in the warrant:

    (A) Escape (4901);

    (B) Flight to Avoid (prosecution, confinement, etc.) (4902); or

    (C) Flight-Escape (4999).

    (2) Probation and parole violator. An individual determined a parole or probation violator shall not be considered to be an eligible household member. To be considered a probation or parole violator, an impartial party, as designated by the State agency, must determine that the individual violated a condition of his or her probation or parole imposed under Federal or State law and that Federal, State, or local law enforcement authorities are actively seeking the individual to enforce the conditions of the probation or parole, as provided in paragraph (n)(3) of this section.

    (3) Actively seeking. For the purposes of this paragraph (n), actively seeking is defined as follows:

    (i) A Federal, State, or local law enforcement agency informs a State agency that it intends to enforce an outstanding felony warrant or to arrest an individual for a probation or parole violation within 20 days of submitting a request for information about the individual to the State agency;

    (ii) A Federal, State, or local law enforcement agency presents a felony arrest warrant as provided in paragraph (n)(1)(ii) of this section; or

    (iii) A Federal, State, or local law enforcement agency states that it intends to enforce an outstanding felony warrant or to arrest an individual for a probation or parole violation within 30 days of the date of a request from a State agency about a specific outstanding felony warrant or probation or parole violation.

    (4) Response time. The State agency shall give the law enforcement agency 20 days to respond to a request for information about the conditions of a felony warrant or a probation or parole violation, and whether the law enforcement agency intends to actively pursue the individual. If the law enforcement agency does not indicate that it intends to enforce the felony warrant or arrest the individual for the probation or parole violation within 30 days of the date of the State agency's request for information about the warrant, the State agency shall determine that the individual is not a fleeing felon or a probation or parole violator and document the household's case file accordingly. If the law enforcement agency indicates that it does intend to enforce the felony warrant or arrest the individual for the probation or parole violation within 30 days of the date of the State agency's request for information, the State agency will postpone taking any action on the case until the 30-day period has expired. Once the 30-day period has expired, the State agency shall verify with the law enforcement agency whether it has attempted to execute the felony warrant or arrest the probation or parole violator. If it has, the State agency shall take appropriate action to deny an applicant or terminate a participant who has been determined to be a fleeing felon or a probation or parole violator. If the law enforcement agency has not taken any action within 30 days, the State agency shall not consider the individual a fleeing felon or probation or parole violator, shall document the case file accordingly, and take no further action.

    (5) Application processing. The State agency shall continue to process the application while awaiting verification of fleeing felon or probation or parole violator status. If the State agency is required to act on the case without being able to determine fleeing felon or probation or parole violator status in order to meet the time standards in § 273.2(g) or § 273.2(i)(3), the State agency shall process the application without consideration of the individual's fleeing felon or probation or parole violator status.

    6. Amend § 273.12 by redesignating paragraph (a)(5)(vi)(B)(3) as paragraph (a)(5)(vi)(B)(4) and adding a new paragraph (a)(5)(vi)(B)(3) to read as follows:
    273.12 Requirements for change reporting households.

    (a) * * *

    (5) * * *

    (vi) * * *

    (B) * * *

    (3) A household member has been identified as a fleeing felon or probation or parole violator in accord with § 273.11(n);

    Dated: September 1, 2015. Audrey Rowe, Administrator, Food and Nutrition Service.
    [FR Doc. 2015-22763 Filed 9-9-15; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2014-0602; Amendment No. 71-35] RIN 2120-AA66 Advisory Circular 91-57 Model Aircraft Operating Standards (June 9, 1981) AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Revision of Advisory Circular 91-57.

    SUMMARY:

    On February 14, 2012, the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), was issued which contains provisions in section 336 related to model aircraft operations. AC 91-57 contains provisions that are inconsistent with section 336 and therefore the Advisory Circular is being revised. The FAA refers model aircraft users to section 336 of Public Law 112-95 for information regarding model aircraft operations.

    DATES:

    Effective date: September 10, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Randy Willis, Manager, Emerging Technologies Team, 493 L'Enfant Plaza SW., Suite 3200, Washington, DC 20051; telephone (202) 267-8152; email: [email protected] or Dean E. Griffith, Attorney, International Law, Legislation and Regulations Division, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8018; email: [email protected]

    Issued in Washington, DC, on September 1, 2015. Gary A. Norek, Manager, Airspace Policy and Regulations Group.
    [FR Doc. 2015-22828 Filed 9-9-15; 8:45 am] BILLING CODE 4910-13-P
    CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1251 [Docket No. CPSC-2011-0081] Toys; Determination Regarding Heavy Elements Limits for Unfinished and Untreated Wood AGENCY:

    U.S. Consumer Product Safety Commission.

    ACTION:

    Withdrawal of direct final rule.

    SUMMARY:

    Due to the receipt of significant adverse comments, the Consumer Product Safety Commission (“Commission” or “CPSC”) is withdrawing the July 17, 2015 direct final rule determining that unfinished and untreated trunk wood does not contain heavy elements that would exceed the limits specified in the Commission's toy standard, ASTM F963-11. The CPSC will address these comments in a separate final action based on the July 17, 2015 notice of proposed rulemaking (80 FR 42378) published in the same issue of the Federal Register. The CPSC will not institute a second comment period on this action.

    DATES:

    The direct final rule published on July 17, 2015 (80 FR 42376) is withdrawn, effective September 10, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Randy Butturini, Project Manager, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East-West Hwy, Room 814, Bethesda, MD 20814; 301-504-7562: email; [email protected]

    SUPPLEMENTARY INFORMATION:

    On July 17, 2015, the CPSC published a direct final rule (80 FR 42376) determining that unfinished and untreated trunk wood does not contain heavy elements that would exceed the limits specified in the Commission's toy standard, ASTM F963-11. For more information on the ASTM wood determination, please see the July 17, 2015 direct final rule (80 FR 42376).

    In the July 17, 2015 direct final rule, the CPSC stated that if CPSC received significant adverse comments by August 17, 2015, the rule would be withdrawn and not take effect. The CPSC received significant adverse comments. Therefore, the CPSC is withdrawing the direct final rule. The CPSC will address these comments in a separate final action based on the July 17, 2015 notice of proposed rulemaking (80 FR 42378) published in the same issue of the Federal Register. The CPSC will not institute a second comment period on this action.

    Dated: September 4, 2015. Todd A. Stevenson, Secretary, Consumer Product Safety Commission.
    [FR Doc. 2015-22829 Filed 9-9-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 154, 155, and 156 46 CFR Parts 35 and 39 [USCG-1999-5150] RIN 1625-AB37 Marine Vapor Control Systems AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule; information collection approval.

    SUMMARY:

    The Coast Guard announces that the Office of Management and Budget (OMB) has approved the amendment of an existing collection of information, as requested by the Coast Guard and described in the final rule published on July 16, 2013. The final rule revised safety regulations for facility and vessel vapor control systems (VCSs) to promote safe VCS operation in an expanded range of activities now subject to current Federal and State environmental requirements, reflect industry advances in VCS technology, and codify the standards for the design and operation of a VCS at tank barge cleaning facilities. The revised regulations increase operational safety by regulating the design, installation, and use of VCSs, but they do not require anyone to install or use VCSs. The OMB must approve any regulatory provisions that constitute a collection of information under the Paperwork Reduction Act, before an agency can enforce those provisions. Having received OMB's approval, the Coast Guard will now enforce collection of information requirements in the final rule. This rulemaking promotes the Coast Guard's maritime safety and stewardship missions.

    DATES:

    The collection of information requirements contained in the July 16, 2013 final rule (78 FR 42596) and approved by the OMB as an amendment to existing collection of information, control number 1625-0060, will be enforced beginning September 10, 2015. The requirements include provisions for VCS certifications, recertifications, periodic operational reviews, approval requests, reviews of operating manuals, failure analyses, operational review letters, and relabeling. These requirements aid the Coast Guard and industry in ensuring industry's regulatory compliance and safe practices in connection with VCSs.

    FOR FURTHER INFORMATION CONTACT:

    For information about this document, call or email Dr. Cynthia Znati, Office of Design and Engineering Standards, U.S. Coast Guard; telephone 202-372-1412, email [email protected] For information about viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826, toll free 1-800-647-5527.

    SUPPLEMENTARY INFORMATION:

    The Coast Guard's final rule, 78 FR 42596 (July 16, 2013), contained information collection provisions that cannot be enforced against any member of the public until OMB approves those provisions and assigns one or more OMB control numbers. The OMB has now approved those provisions and assigned OMB Control Number 1625-0060, and the Coast Guard will enforce them beginning September 10, 2015.

    Documents mentioned in this document are in our online docket for USCG-1999-5150 at http://www.regulations.gov and can be viewed by following the Web site's instructions. You can also view the docket online at the 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 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    This document is issued under authority of 5 U.S.C. 552(a).

    Dated: September 3, 2015. J.G. Lantz, Director of Commercial Regulations and Standards, U.S. Coast Guard.
    [FR Doc. 2015-22779 Filed 9-9-15; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 105, 107, and 171 [Docket No. PHMSA-2012-0260 (HM-233E)] RIN 2137-AE99 Hazardous Materials: Special Permit and Approvals Standard Operating Procedures and Evaluation Process AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    PHMSA is adopting regulations to include the standard operating procedures (SOPs) and criteria used to evaluate applications for special permits and approvals. This rulemaking addresses issues identified in the Hazardous Materials Transportation Safety Improvement Act of 2012 related to the Office of Hazardous Materials Safety's Approvals and Permits Division. In addition, this rulemaking also provides clarity regarding what conditions need to be satisfied to promote special permit application completeness. An application that contains the required information reduces processing delays by reducing the number of applications rejected due to incompleteness. Through public notice and comment, this final rule is required to establish SOPs to support the administration of the special permit and approval programs, and objective criteria to support the evaluation of special permit and approval applications. These amendments do not change previously established policies, to include but not limited to any inspection activities subsequent to issuance, modification or renewal of a special permit and approval.

    DATES:

    The final rule is effective on November 9, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Ryan Paquet or Donald Burger, Office of Hazardous Materials Safety, Approvals and Permits Division, (202) 366-4511, Pipeline and Hazardous Materials Safety Administration (PHMSA), 1200 New Jersey Avenue SE., Washington, DC 20590.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Executive Summary II. Background III. Comment Discussion A. American Trucking Associations B. The Chlorine Institute C. Dangerous Goods Advisory Council D. Institute of Makers of Explosives E. Reusable Industrial Packaging Association F. Sporting Arms and Ammunition Manufacturers' Institute, Inc. IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866, 13563, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulation Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. Executive Order 13609 and International Trade Analysis V. Section by Section Review I. Executive Summary

    On July 6, 2012, the President signed the Moving Ahead for Progress in the 21st Century Act (MAP-21), which includes the Hazardous Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as Title III of the statute. See Public Law 112-141, 126 Stat. 405, July 6, 2012. Under section 33012 of HMTSIA, Congress directed the U.S. Department of Transportation (Department or DOT) to issue a rulemaking to provide:

    Standard operating procedures (SOPs) to support the administration of the special permit and approval programs; and

    Objective criteria to support the evaluation of special permit and approval applications.

    In this rulemaking, PHMSA is amending the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to incorporate procedures to support the administration of its special permits and approvals programs in a new Appendix A to Part 107, Subpart B of the 49 CFR. Incorporation of SOPs and objective criteria to support the evaluation of special permits and approvals accomplishes the mandate under section 33012 of MAP-21. By incorporating these internal agency procedures into regulation, PHMSA believes the benefits of this final rule will increase the public's understanding of the special permit and approval application and renewal process, improve the quality of information and completeness of applications submitted, improve application processing times, improve the quality of information and completeness of applications submitted, improve application processing times, promote continued safe transportation of hazardous materials, and support U.S. trade competitiveness by permitting safe and innovative transportation methods for hazardous materials. Because this final rule will affect only agency procedures, PHMSA assumes no change in current industry costs or benefits and that this final rule does not impose additional costs on industry.

    II. Background

    The HMR prescribe regulations for the transportation of hazardous materials in commerce. PHMSA issues one type of variance from the HMR in the form of a “special permit.” It also provides written consent to perform a function that requires prior consent under the HMR in the form of an “approval.” These variances are designed to accommodate innovation, provide consent, and allow alternatives that meet existing transportation safety standards and/or ensure hazardous materials transportation safety. Federal hazardous materials (hazmat) law directs the Department to determine if the actions specified in each application for a special permit establish a level of safety that meets or exceeds that already present in the HMR, or if not present in the HMR, establish a level of safety that is consistent with the public's interest. PHMSA, through the HMR, applies these same conditions to the issuance of an approval. Due to the unique features that may exist in each application, PHMSA issues special permits and approvals on a case-by-case basis.

    The HMR currently define a special permit as “a document issued by the Associate Administrator, or other designated Department official, under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter,” “or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements).” (See 49 CFR 105.5, 107.1, and 171.8.) An approval is currently defined in the HMR as “written authorization . . . from the Associate Administrator or other designated Department official, to perform a function for which prior authorization by the Associate Administrator is required under subchapter C of this chapter. . . .” Applicants who apply for a special permit must do so in conformance with the requirements prescribed in §§ 107.101 to 107.127 of the HMR. Applicants who apply for an approval must do so in conformance with the requirements prescribed in §§ 107.401 to 107.404, and §§ 107.701 to 107.717 of the HMR.

    PHMSA amended the HMR in 1996 (61 FR 21084) to include as part of the approval application review process a requirement to review each applicant's fitness to perform the tasks requested in their applications. PHMSA also issued and updated internal SOPs several times over the past decade to support the process and issuance of special permits and approvals that comply with the HMR. On February 29, 2012 (see Docket No. PHMSA-2011-0283), PHMSA held a public meeting to invite public comment on these considerations. In July 2012, PHMSA established a working group to examine ways to streamline the fitness review process while maintaining an acceptable level of safety, to expand the fitness review process to include special permit applicants, and to define and determine the adequacy of criteria that should be used to initiate fitness reviews. As a result of this working group's efforts, PHMSA published a Notice of Proposed Rulemaking (NPRM) on August 12, 2014 (79 FR 47047) to invite public comment on its proposal to add updated SOP and evaluation criteria to process special permit and approval applications. Specifically, the NPRM proposed to revise §§ 105.5, 107.1, 107.113, 107.117, 107.709; add a new Appendix A to 49 CFR part 107, entitled “Standard Operating Procedures for Special Permits and Approvals;” and revise § 171.8 to incorporate administrative procedures for processing special permits and approval applications. On September 12, 2014 (79 FR 54676), PHMSA published a correction to the August 2014 NPRM to propose that special permit and approval applications that undergo review by an Operating Administration (OA) will complete this review before they undergo an automated review. This proposed correction also clarified that an OA review, depending on its completeness, may negate the need for the automated review. We have summarized these proposed actions below.

    § 105.5

    In § 105.5, we proposed to revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR.

    § 107.1

    In § 107.1, we proposed to revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR. In addition, we proposed to add for clarity new definitions for “applicant fitness,” “fit or fitness,” “fitness coordinator,” and “insufficient corrective action.”

    § 107.113

    In § 107.113(a), we proposed that the Associate Administrator will review all special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.

    § 107.117

    In § 107.117(e), we proposed that the Associate Administrator will review all emergency special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.

    § 107.709

    In § 107.709(b), we proposed that the Associate Administrator will review all approval applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.

    49 CFR Part 107, Appendix A

    In 49 CFR part 107, we proposed to add new Appendix A to incorporate PHMSA's existing standard operating procedures for processing special permits and approval applications. These procedures can be defined in four phases consisting of: Completeness, Federal Register Publication, Evaluation, and Reconsideration.

    § 171.8

    In § 171.8, we proposed to revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR.

    As stated earlier, PHMSA published a correction notice on September 12, 2014. In this notice, PHMSA added language to the proposed “Automated review” and “Safety profile review” sections of the proposed SOPs to clarify that special permit and approval applications that undergo a safety profile review by an OA will complete this safety profile review before they undergo an automated review, and that an OA review, depending on its completeness, may negate the need for the automated review, respectively.

    In response to the NPRM, PHMSA received comments from six entities. These comments and PHMSA's responses are provided in the “Comment Discussion” section of this final rule.

    III. Comment Discussion

    In response to the August 12, 2014 NPRM, and September 12, 2014 proposed rule correction notice, PHMSA received comments from the following organizations:

    Name Docket No. Web site link American Trucking Associations PHMSA-2012-0260-0007 http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0260-0007. Chlorine Institute PHMSA-2012-0260-0008 http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0260-0008. Dangerous Goods Advisory Council PHMSA-2012-0260-0011 http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0260-0011. Institute of Makers of Explosives PHMSA-2012-0260-0006 http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0260-0006. Reusable Industrial Packaging Association PHMSA-2012-0260-0009 http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0260-0009. Sporting Arms & Ammunition Manufacturers' Institute PHMSA-2012-0260-0010 http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0260-0010.

    In this section, we summarize and discuss the comments received. You may access the NPRM, correction notice, comments, and other documents associated with this rulemaking by visiting the Federal eRulemaking Portal at http://www.regulations.gov, under Docket No. PHMSA-2012-0260, and specific comments by visiting the Web site links listed in the previous table.

    A. American Trucking Associations Motor Carrier Exposure

    The American Trucking Associations (ATA) expressed concern that the criteria PHMSA is using to reject applications during its automated tier and fitness application review processes will adversely penalize large fleets that transport materials more often. The ATA stated the chances for errors to occur in transportation increase proportionally as a carrier's frequency in transportation increases. Further, the ATA stated that many of the criteria PHMSA says it will use to conduct its initial evaluations will cause carriers' applications to be rejected for violations proven to be poor indicators of safe transportation performance. The ATA believes PHMSA's focus on these types of violations is not justified and offers the following in support of its position:

    In 2012, hazardous materials carriers had four percent fewer crashes per truck tractor than traditional fleets. Fleets transporting hazardous materials also had thirty-five percent fewer inspections resulting in a driver being taken out of service, and fourteen percent fewer inspections resulting in a vehicle being taken out of service. Yet even accounting for the hazardous materials fleets' superior safety performance, once a fleet reaches a certain size it is almost impossible that it will not have suffered an accident involving a death, injury, or property-damaging tow away due simply to exposure and the laws of probability. These carriers are almost guaranteed to fail the automated review process.

    These carriers likely will not pass during the proposed Section 3(b)(ii) safety profile review either. At this point, PHMSA proposes that the fitness coordinator review “the applicant's history of prior violations, insufficient corrective actions, or evidence that the applicant is at risk of being unable to comply with the terms of an application for an existing special permit, approval, or the HMR[s].” PHMSA proposes that carriers' accidents caused merely by “driver error” can be dismissed at this point. However, a fitness coordinator is unlikely to be able to review enough of a carrier's accident data to make such a determination off-site. The fitness coordinator will therefore likely recommend that the motor carrier applying for a special permit move on to the final level of review: An on-site inspection. During an on-site inspection, the inspector will have access to the carrier[']s accident reports and any other pertinent safety information and would be able to clear the carrier for a special permit.

    In 2012, 3,702 fatal crashes involving large trucks were reported to the Department of Transportation (DOT). DOT further estimates another 367,000 crashes involving large trucks that resulted in injury or property damage only [occurred during this period]. In 2012, large trucks traveled an estimated 268,318,000,000 miles. Thus, on average and based on DOT figures, a large truck is involved in a traffic accident every 1.4 million miles.

    ATA has only presented the data concerning crashes. However, PHMSA also proposes to remove those with two or more violations of its placarding regulations from automatic review and approval eligibility. In calendar year 2013, placarding violations were the seventh most common hazardous materials violation cited. Inspectors issued just under 2,300 violations in 2013. PHMSA proposes to check roughly 10,000 placarding violations over a four year period. A carrier—particularly a large one—might easily have two or more of those 10,000 violations. ATA also questions why two placarding violations should automatically send a carrier to secondary review when the six more frequently cited violations—especially failing to secure the package in the vehicle, damaged/deteriorated/obscured placards, and failure to carry shipping papers at all—have no similar effects on special permit or approval eligibility.

    Ultimately, a carrier in the scenario described above is likely to receive approval for the special permit. Unfortunately, the carrier must comply with multiple levels of increasingly intrusive reviews in order to do so. Rather than require motor carriers to submit themselves to such levels of observation, ATA suggests that PHMSA implement a system that controls for both fleet size and for fleet utilization. Such a system should also include realistic violation levels for carriers of all sizes that are derived from examining FMCSA [Federal Motor Carrier Safety Administration]-provided data about violations during any given year.

    PHMSA agrees with the ATA that those who transport hazardous materials frequently, including carriers with larger fleets, may be at greater risk 1 for involvement in transportation incidents due to their increased opportunity to be exposed to occurrences that affect safety in transportation (e.g., other vehicles, road conditions, weather, vehicle integrity, driver health, driver experience, etc.). PHMSA also agrees that a fitness assessment program which includes incident data proven to be an indicator of safe performance will assist with the process of performing a Section 3(b)(ii) safety profile review. However, PHMSA notes that the issuance of special permits and approvals is unique in that they authorize activities involving hazardous materials not currently permitted under the HMR. To ensure their safe performance, PHMSA must assess the safety of the tasks requested and the ability of the person(s) making the request to successfully perform these tasks. PHMSA assesses the safety of the tasks requested by subjecting them to technical review by its Engineering and Research Division and/or appropriate OA's, as applicable. PHMSA assesses the ability of the person(s) to perform the tasks requested successfully based on recommendations it receives from its Field Services Support Division and OA's. These staff are most closely linked to the acquisition and use of this data, from incident reports submitted in conformance with §§ 171.15 and 171.16 and data that is developed and managed by the FMCSA and PHMSA's evaluation and risk management teams. Identifying and evaluating appropriate fitness screening criteria and available data is the center of PHMSA's risk management strategy.

    1 Web site: Federal Motor Carrier Safety Administration's Large Truck and Bus Crash Facts—http://www.fmcsa.dot.gov/safety/data-and-statistics/large-truck-and-bus-crash-facts.

    Further, while other databases exist within the DOT and the federal government that contain additional hazmat transportation safety information that may be useful in a safety profile review, PHMSA does not have access to these databases at this time. In addition, the databases PHMSA currently uses are either not configured to retrieve or do not contain some of the information and normalizing controls the ATA has requested be included in the safety profile review. Nonetheless, PHMSA agrees with the ATA that these types of data collection changes will improve § 3(b)(ii) of 49 CFR part 107, Appendix A's safety profile review results, and reduce the opportunity for frequent shippers and carriers of hazardous materials from being adversely affected during the safety profile review process. Therefore, in the future PHMSA will continue to study what factors are proven indicators of safe hazmat transportation performance for the purposes of a safety profile review, and review its data systems, software programs, and data collection to include those safety indicators that can reasonably be obtained.

    PHMSA disagrees with the ATA's statement that a fitness coordinator may not be able to review enough of a carrier's accident data information to make an offsite fitness determination of that carrier. In most instances before an on-site safety profile review is considered, PHMSA's fitness coordinators will contact the applicant for clarifying information. If the information the applicant provides is sufficient to address the coordinators' concerns and/or questions, this may eliminate the need for an on-site inspection.

    PHMSA disagrees with the ATA's statement that PHMSA proposes to remove all carriers with two or more placarding violations from automatic review and approval eligibility. Specifically, the NPRM proposed to remove carriers from automated review and approval eligibility if they have two or more placarding violations involving materials with hazard classes listed in Table 1 of § 172.504(e). Historically, materials that meet the hazard classes listed in Table 1 of § 172.504(e) pose significantly higher risks in transportation. Thus, PHMSA believes additional scrutiny regarding transportation violations involving these materials is justified. The ATA also believes placarding violations involving Table 2 materials should not automatically send a carrier to secondary review. As stated in the revised SOPs, PHMSA will address placarding violations under FMCSA fitness criteria by not considering placarding violations involving § 172.504 Table 2 materials.

    PHMSA also agrees with the ATA that a safety profile review should put greater weight on serious and not minor violations. Citing the violations listed on FMCSA's “Roadside Inspections/Hazmat Violations” Web page,2 the ATA believes the six violations that occur most frequently are associated with more safety risks in transportation. These violations, listed in descending order of frequency, are:

    2 Federal Motor Carrier Safety Administration Analysis & Information Division, “Roadside Inspections, HazMat Violations” (Web site: http://ai.fmcsa.dot.gov/SafetyProgram/spViolation.aspx?rpt=RDHV).

    1. Package not secured in vehicle;

    2. No copy of USDOT hazmat vehicle registration number;

    3. Placard damaged, deteriorated, or obscured;

    4. Shipping paper accessibility;

    5. No shipping papers (carrier); and

    6. Vehicle not placarded as required.

    Of these six, the ATA believes three—failing to secure the package in the vehicle, damaged/deteriorated/obscured placards, and failure to carry shipping papers—should take precedence over placarding violations involving § 172.504(e), Table 2 materials.

    PHMSA further agrees with the ATA that inspection violations should be categorized in one of two triggers that also distinguish between greater and lesser transportation risks. Therefore, as proposed in the NPRM, PHMSA is reducing the number of levels that initiate, also called “trigger,” a safety profile review to remove enforcement case referrals and incidents involving foreign cylinder manufacturers or requalifiers, and revising the safety profile review triggers to include incorrect package selection, leaking packages, failure to secure package, damaged/deteriorated/obscured placards, failure to carry shipping papers, not following closure instructions, and blocking/bracing problems. PHMSA is also revising the violations that trigger an on-site inspection to include marking, labeling, placarding, and shipping paper violations. PHMSA will determine applicants as having failed the safety profile review if they are found to have any of the safety profile review violations described earlier in this paragraph. PHMSA believes these changes will lead to safety profile reviews that are more indicative of applicants that may cause compromises in safety. Further, PHMSA is revising the text in 49 CFR part 107, Appendix A, to remove language that states carriers with two § 172.504(e), Table 2, placarding violations, and applicants with more than two safety profile review trigger violations or more than five on-site inspection trigger violations that have occurred during the four years prior to applying for a special permit or approval are automatically subject to a secondary review. PHMSA made this revision because it lacks the software capability to discern these incidents during an automatic review.

    Safety Performance Data

    The ATA also commented that the NPRM “proposes that highway carriers `will be screened in an automated manner based upon criteria established by FMCSA . . . which consists of interstate carrier data, several states' intrastate data, interstate vehicle registration data, and may include operational data such as inspections and crashes.' PHMSA proposes that FMCSA's Safety and Fitness Electronic Records (SAFER) system or another system like SAFER, but chosen by FMCSA, will be used.” The ATA believes safety data is better reflected in a company's inspection information and crash history. It also recommends that PHMSA consult only the underlying data to the index scores if the validity of the index scores cannot be verified. The ATA recommends that PHMSA base its SOP fitness evaluation criteria on categories FMCSA has determined are better indicators of a motor carrier's safe performance. The ATA further states:

    FMCSA has developed a new safety measurement tool, known as Compliance, Safety, Accountability (CSA). CSA utilizes the inspection and crash data that PHMSA proposes should be considered in making special permit determinations. The CSA system then amalgamates that data and runs it through an algorithm in order to generate seven index scores ranking motor carriers in relation to other carriers of similar size or with a similar number of inspections. But, PHMSA's special permit and approvals requirements are based upon applicants showing that safety performance will be at the same or a higher level than would prevail outside of the special transportation provisions requested. Thus, CSA scores should only be used if they can be shown to reliably represent individual carrier safety performance.

    Many of the individual, discrete pieces of data utilized by the CSA algorithm could be useful to PHMSA in making a determination about a carrier. These pieces of information could be useful with only an automated review or at the safety profile review by a DOT official. However, multiple studies have shown that FMCSA's overall aggregate indexing and scoring system does not accurately or reliably represent an individual carrier's safety performance or reliably predict future crash involvement. Essentially, the scores are not good indicators as to whether or not a carrier “is fit to conduct the activity [that would be] authorized by the special permit or approval application.”

    FMCSA even avoids using CSA scores in awarding Hazardous Materials Safety Permits (Safety Permit). Safety Permits are required for the transport of highway route-controlled quantities of Class 7 hazardous materials, certain high explosives, poison inhalation hazards in Zones A-D, and shipments of compressed or liquefied natural gas. Rather than utilize CSA scores, FMCSA awards safety permits based on a carrier's performance in avoiding crashes and out of service orders during vehicle, driver, and hazardous materials inspections.

    Wisely, FMCSA is unwilling to award Safety Permits based upon CSA scores. In fact, several carriers that hold Safety Permits have CSA Hazmat BASIC index scores well above the threshold for agency intervention. Therefore, it is inappropriate for PHMSA to rely on these same index scores eschewed by FMCSA in approving or denying special permit or approval applications. PHMSA can and should rely on inspection information and crash history. However, absent verification that the index scores contain useful safety information, only the underlying data should be consulted.

    As stated earlier in this preamble, PHMSA agrees with the ATA that data considered when evaluating an applicant's safety profile should be an indicator of the applicant's safe performance in transportation. PHMSA further agrees that while an increased number of miles in transportation must be considered when evaluating transportation safety, companies should not be adversely penalized for placing an increased number of properly prepared hazardous materials in transit. PHMSA proposed in the NPRM to evaluate an applicant's fitness based on accident and other operational data that are historical indicators of compromises in hazardous materials transportation safety. While PHMSA proposed to use FMCSA's CSA data as a part of this evaluation, PHMSA is aware of the FMCSA's concerns about its data collection programs and that it is considering revising the type of information it collects. PHMSA will investigate its data collection systems and confer with FMCSA to determine what safety compromise indicators can be retrieved from these databases, and if the normalizing controls of the type the ATA discussed may also be obtained. In addition, the initial review of the data will only be performed as part of the initial automated fitness review. Further review, including the safety profile review, will be conducted by a fitness coordinator and the data will be evaluated and normalized based upon available data during the review. Companies will not be determined to fail the safety profile review based solely upon the number of incidents or accidents that were discovered during the safety profile review process. Additional factors, such as the number of miles traveled and the number of vehicles in service, would also be considered.

    As stated earlier in this preamble, PHMSA also proposed in the NPRM to modify its evaluation of the information needed to warrant a safety profile review into two types of initiating/trigger/tier events. The first event is for a safety profile review and emphasizes high-level indicators of these types of risks, and the second event is for on-site inspections and includes violations that PHMSA finds are low-level risk model indicators. In the NPRM, these proposed events were described in the following table:

    Table 2—Safety Profile Review and On-Site Inspection Triggers Trigger for safety profile review Trigger for on-site inspection * Death or Injury Any incident attributable to the applicant or package (not driver error). § 172.504(e) Table 1 (Placarding) material AND Two or more Incidents Bulk AND Three or more Incidents Two or More Prior Enforcement Case Referrals Insufficient Corrective Actions on any enforcement case OR Independent Inspection Agency (IIA) Items (Except when reinspected with no violations noted). Foreign Cylinder Manufacturer Or Requalifier Never Inspected under current criteria (2010). * The Fitness Coordinator assesses and applies these triggers.

    PHMSA will consider additional high-level indicators of transportation safety compromises, such as wrong package selection, failure to close packages properly, and failure to test packages.

    Due to their low risk, PHMSA will not include violations it finds are low-level risk model indicators, such as those described in the triggers for an on-site inspection in the earlier table, as triggers for an applicant's on-site inspection. Also as previously stated, if PHMSA finds during an inspection evidence that an applicant in the four years prior to submitting its application has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, PHMSA will recommend that the applicant has failed this portion of the safety review process.

    B. The Chlorine Institute General Comments

    The Chlorine Institute (CI) expressed its overall support of PHMSA's initiative to incorporate the special permits and approvals SOPs and information about the evaluation process into the HMR. It stated that by putting this information in the public record and into the HMR, it allows stakeholders to be more informed about the special permit and approvals application process. In addition, CI stated that explaining the evaluation process and what criteria will prompt interviews and on-site inspections will assist applicants in being more prepared for the evaluation process. Further, CI stated that providing stakeholders with such details should make for a smoother and more efficient application review process, thereby benefitting both PHMSA and industry. Finally, the CI expressed its appreciation that PHMSA has listened to industry's concerns pertaining to the special permits and approvals review process and undertaken this rulemaking.

    C. Dangerous Goods Advisory Council General Comments

    The Dangerous Goods Advisory Council (DGAC) expressed its support of PHMSA's efforts to comply with MAP-21 requirements to issue regulations that establish SOPs and criteria to evaluate applications for special permits and approvals, in addition to the publishing of the SOPs. However, the DGAC also expressed concerns about several proposals in the NPRM, and requested that PHMSA revise its SOPs to reduce possible subjectivity and processing times.

    PHMSA's Responses to Routine Requests

    The DGAC commented that the procedures PHMSA proposed for managing special permit and approval applications do not provide for responding to routine requests for administrative revisions, such as name changes, address updates, or minor editorial revisions to correct non-substantive errors. The DGAC believes requiring applicants to submit an entire application to make such minor changes does not promote safety and burdens PHMSA's and the applicant's administrative processes.

    PHMSA disagrees. When an applicant asks to modify an existing special permit to make routine administrative changes, such as a change of address and/or minor editorial revision to correct a non-substantive error, paragraphs (c) and (d) of § 107.105 require that the applicant requesting this change submit an application to PHMSA that describes and justifies their request and includes information relevant to the proposal, which is a “full” application for this type of request provided it complies with all applicable requirements of the HMR. Since the special permit is already approved, depending on the type of request, all the safety justification information required in the initial application will not be needed. Relevant information to the request is also what is needed to make routine administrative changes to an existing approval, but the language in § 107.705(b) is not as clear. Therefore, PHMSA is revising the introductory paragraph of § 107.705(c) to include language similar to that in § 107.105(c) that requires relevant information be submitted with the request. As a result, PHMSA believes making requests for modifications through the submission of a full application, as prescribed in the HMR, is not a significant burden. In addition, providing a full application does serve a safety benefit since it will require the application to be screened through an automated fitness review that will identify any possible changes to the company's fitness profile. Regarding requests for name changes, additional information is needed since PHMSA technically does not issue “name changes” to permits and approvals. The applicant requesting a company name change must be able to demonstrate that the new company is performing the activities authorized under the special permit or approval in a manner that is identical to that of the previous company. For example, the applicant must provide a filing from the state of incorporation indicating that the only change to the corporation is a change in the name, or other documentation to indicate that although the company is changing, its personnel, procedures and activities performed under the special permit or approval will not change under the auspices of the new company. If these conditions are met, then PHMSA grants an approval or permit to the new company that it may maintain the same approval or permit number as the one previously issued.

    Further, though PHMSA continuously strives to improve the efficiency of its special permit and approval processing operations, it is the applicant's responsibility to ensure his or her application is correct and complete. PHMSA receives approximately 30,000 special permit and approval applications annually. One of the most effective ways to ensure efficient processing of an application is that it is complete. Past attempts by PHMSA to delay processing incomplete applications until it received the missing or corrected information from applicants resulted in significant application processing delays. If applicants are permitted to submit incomplete applications without any negative consequences, there is no incentive for applicants to submit complete and conforming applications. Requiring applications to be complete prior to processing will enhance PHMSA's ability to process the applications in a timely manner. The time that would be utilized gathering additional information and updating applications could be used more effectively by processing complete applications. Further, budgetary constraints prevent PHMSA from modifying its current application processing software. Therefore, PHMSA will not create a separate application process for managing routine administrative application changes.

    Assessment of Manufacturers That Do Not Ship

    DGAC stated that it is not clear about the intent of PHMSA's request on how to assess hazardous materials manufacturers that do not ship. Specifically, the DGAC states that it is not clear what PHMSA's jurisdiction is to assess fitness for entities that do not offer hazardous materials or packaging marked as acceptable for transportation.

    PHMSA disagrees. While the DGAC correctly points out that the HMR do not apply to a hazardous material that is not being transported in commerce, the HMR apply to all actions that affect the safe transport of hazardous materials in commerce, including those performed by manufacturers that do not ship, such as hazard classification and consignment through a freight forwarder or broker. Therefore, each applicant for a special permit or approval must be assessed for its fitness to perform actions relevant to compliance with the HMR. For those manufacturers that do not perform a hazmat function, PHMSA does not have regulatory jurisdiction over these entities. PHMSA believes that clarifying the responsibilities under the HMR of manufacturers that do not ship is beneficial to this process.

    Necessity of Assessments of Applicants Performing Functions That Require Registration

    The DGAC questioned the necessity for making fitness determinations of applicants that perform certain functions requiring registration. As an example, DGAC stated that persons desiring to use a symbol as their company identifier must register with PHMSA and be issued a number. DGAC stated that performing a fitness determination on these persons seems to serve no useful purpose. For persons who perform only visual inspections of cylinders that are required to register to receive a Visual Identification Number (VIN), the DGAC expressed doubt that PHMSA has an inspection history on the vast majority of these individuals, and that PHMSA can perform an on-site inspection of all applicants for VINs in a timely manner. The DGAC concluded by stating that withholding the issuance of a VIN until an inspection can be performed may cause severe hardship for such applicants, and affect their ability to stay in business.

    PHMSA disagrees. While it is not our intent to inspect all VIN applicants, and historically we have found low levels of risk with visual cylinder requalifiers, visually inspecting cylinders is a safety function under the HMR. Therefore, PHMSA will analyze VIN applicants for fitness if PHMSA is aware of any intelligence that the applicant is not capable of performing this activity. Further, the average processing time for a VIN is 3 to 5 days or less. PHMSA has never had delays in processing these applications. However, PHMSA is reviewing how we process these applications to determine if we can implement more automation.

    Authority To Determine Sufficient Corrective Action

    The DGAC expressed concern regarding the authority the proposed SOPs would give the PHMSA Field Operations (FOPS) officer or authorized Operating Administration (OA) representative to make a subjective determination that corrective action taken by an applicant in response to a prior enforcement case is insufficient and that the basic safety management controls proposed for the type of hazardous material, packaging, procedures and/or mode of transport remain inadequate. DGAC stated that such a determination by a single individual is purely subjective without a determination that a violation continues to exist. Further, DGAC believes that this type of determination lacks both the administrative and legal review to verify existence of a violation, and the administrative processes for a company to challenge such findings.

    PHMSA disagrees. Fitness is not determined by one FOPS Division staff, or a representative of the Department, such as an OA representative. An applicant that undergoes an initial safety profile review and is flagged has his or her case first reviewed by a FOPS officer, and then the case goes through a second level review. Further, a company has 30 days to submit corrective actions after a FOPS officer or OA investigator finds possible violations. If the first-line field supervisor considers the corrective actions sufficient to address the observed violation, the supervisor presumes that corrective actions have been put into place and will prevent future recurrence. In some instances, a follow up re-inspection is also executed to ensure the corrective actions have adequately addressed the problem. All field case reports, including corrective actions, are reviewed by PHMSA's legal counsel and a final penalty is assessed. The penalty amount can be challenged by the company under existing administrative processes. Further, for additional clarity and in response to a request from commenters, PHMSA has added a definition for “sufficient corrective action” under § 107.1.

    Criteria Used To Determine if an Applicant is “Fit” or “Unfit”

    DGAC states that it remains unclear as to what criteria will be used to determine if an applicant is either “fit” or “unfit.” It also states that even though minor violations of the HMR may be uncovered during an on-site investigation, such violations may not have a serious impact on the compliance posture of the applicant. The DGAC recommends that PHMSA clearly articulate the conditions under which an applicant would be determined to be “unfit.”

    PHMSA has articulated these conditions to the extent possible in this final rule. However, too many variables exist among those who affect the safe transport of hazardous materials to state with certainty what HMR violations or previous incident history will be found and to what extent they will affect the status of an applicant's fitness. For example, if a violation or series of previous incidents is found and PHMSA determines the applicant has not implemented sufficient corrective actions for prior violations, or that the applicant is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, then PHMSA will determine that the applicant is unfit to conduct the activities requested. Although FOPS officers and OA representatives do not disclose their inspection process and their inspections are unannounced, their inspections are conducted in a logical sequence and involve all aspects of the applicants' operations that are applicable to the HMR.

    D. Institute of Makers of Explosives General Comments

    The Institute of Makers of Explosives (IME) expressed concern that the SOPs proposed in the NPRM introduce practices and procedures that increase the costs and timelines of producing and managing special permits and approvals applications without addressing the fundamental problems the DOT Office of Inspector General (OIG) identified with these PHMSA programs—deficiencies in how PHMSA manages its paperwork and provides clarity when processing these applications. The IME stated the DOT OIG directed PHMSA to clarify and publish its SOPs for special permits and approvals in its 2009 report. The IME also stated the DOT OIG cited as the reason for this directive PHMSA's deficiencies in managing its paperwork, but not for the performance of tasks PHMSA authorized in the special permits and approvals it has approved. The IME further stated PHMSA responded to the OIG's request by issuing “without public notice and comment, two documents describing new complex procedural schemes that substantively altered the special permit and approvals application and evaluation process, and fundamentally changed the procedures the agency would follow in conducting a fitness determination.”

    The IME further noted that although PHMSA identified its SOPs as “a process for evaluating an applicant's fitness,” it identified its SOPs for approvals “as a draft with a `to be determined'” placeholder for its fitness determination standard. The IME stated that the agency began using these SOPs to make regulatory determinations of fitness although the regulated community had no idea what threshold level of performance would be used to determine an applicant's “fitness.” The IME stated the regulated community responded to this action “with letters and a petition for rulemaking requesting that PHMSA establish its SOPs and fitness criteria by rulemaking.” When PHMSA rejected these requests, the IME stated, “Congress intervened with a directive that PHMSA issue regulations to establish SOPs for the SPAP [Special Permit Application Process], and objective criteria to support the evaluation of special permit and approval applications.”

    As stated earlier in this preamble, PHMSA continuously strives to improve the efficiency of its special permit and approval processing operations while processing approximately 30,000 special permit and approval applications annually. In the past, delays in processing incomplete applications until PHMSA received missing or corrected information from applicants resulted in significant delays in processing applications. As a result, PHMSA has ceased that practice. PHMSA must also ensure that all special permit and approval requests are not authorized until they are determined to be as safe as those activities permitted under the HMR or are determined to be safe enough to serve the public interest. In addition, by undertaking this rulemaking process, PHMSA is responding to requests from the regulated public to open the development of its special permit and approval SOPs to full public disclosure and comment.

    Concerns and Observations About the NPRM

    The IME indicated in its comments that it supports several proposed amendments in the NPRM. These include a four-year review period, Table 1 applications, hazmat registration, party-to-applicant fitness, data normalization and relevance, and presumption of fitness. However, the IME provided several comments pertaining to a number of concerns and observations. They are as discussed below.

    Costs and Benefits

    In its comments, the IME stated that PHMSA's claim that costs and benefits are unaffected due to this rulemaking is premature. Specifically, it stated that “every determination PHMSA makes of an applicant's fitness or whether to issue or deny a special permit or approval has an effect outside of the agency. Furthermore, opportunities to affect those costs and benefits change when the procedures and standards change. For several years, the regulated community has relied on SOPs posted on PHMSA's Web page. Yet PHMSA acknowledged, at some time after its 2012 public meeting on fitness determination standards, that it has revised its SOPs. It may be that the agency's claim that the SOPs and fitness criteria described in the rulemaking are unlikely to change costs and benefits is because PHMSA is describing its current practices, not the SOPs posted to its Web site. Whatever the case, a declaration that costs and benefits are unaffected is premature because it presupposes the outcome of this rulemaking.”

    PHMSA notes that for several years, Congress and the DOT's Inspector General (IG) have directed PHMSA to assess the ability (i.e., fitness) of special permit, and more recently approval, applicants to ensure they can safely perform the tasks requested in their applications. PHMSA developed and revised its SOPs as internal administrative guidance to help its staff properly process these applications, reduce delays, and accommodate changes to automated systems, database availability, and DOT and PHMSA directives. PHMSA also recognizes the financial impact special permits and approvals have on industry processes. However, as mentioned earlier in this preamble, the risks associated with hazardous materials and the potential for severe consequences to the public and environment if they are improperly transported require that PHMSA must not authorize permission to transport these materials in a manner not permitted under the HMR until PHMSA ensures that the actions requested and the persons performing these actions are safe.

    Streamlining the Process

    The IME also expressed its concern of how “backlogged” applications have plagued the SPAP since the events of 2009. It noted that:

    PHMSA exercises new authority to incorporate proven special permits into the HMR. Backlogs from this part of the SPAP may be self-correcting. While IME appreciates the dedication of PHMSA staff to move existing backlogged applications, the frequency with which intervention is required to request action on these applications suggests that the process needs to be better streamlined. PHMSA has established a 120-day processing schedule before an application can be deemed “backlogged.” We do not believe that every application should be held to a 120-day processing schedule, and we associate ourselves with those that believe the length of time PHMSA takes to process and issue special permits or approvals, especially when applications lag beyond the current 120-day processing threshold, adversely impacts U.S. competitiveness. While nothing in this notice indicates that the regulated community can expect a shorter processing schedule, the agency does describe revised procedures that suggest a shorter timeframe is possible. For example, PHMSA has begun to concurrently process both the technical and the fitness evaluations. Based on concurrent processing, PHMSA should establish a shorter timeframe for applicants to gauge when they will be provided a decision from the agency.

    In another streamlining initiative, PHMSA issued notice that it was ceasing to perform fitness reviews for classification approvals. These approvals are simply affirmations of compliance with classification regulations. Those affected must have PHMSA-required tests performed by PHMSA-approved laboratories. Denying a request for such an approval on the basis of fitness is, in effect, denying the applicant the opportunity to properly classify a material in accordance with the applicable regulations. While we support this policy initiative, PHMSA left open the door for interpretive confusion with a concluding statement that, “[f]itness of applicants for classification approvals will continue to be reviewed through application evaluation, inspection, oversight and intelligence received from PHMSA or another Operating Administration (FAA, FMCSA, FRA, or USCG).” This statement appears to contradict the announced policy that fitness determinations would not be required for classification applications. PHMSA should clarify its policy as part of this rulemaking.

    PHMSA states that there are four steps in the processing of an application, whether for special permits or approvals. They include a “completeness” phase, publication, “evaluation” phase (which includes both a technical and a fitness evaluation), and “disposition” phase. The completeness phase is to determine if the application contains all the information required by the HMR. However, the preamble states that evaluation phase is used to “determine if the application is complete.” This duplication is needless and will slow the processing of the application. Additionally, it is not clear from the preamble discussion when applicants will be notified that an application is rejected. Reasons to reject applications, such as incompleteness, omissions, errors, could be manifest at any stage of the processing phases. Whenever PHMSA makes a determination to reject an application, the applicant should be immediately notified. An application tagged to be rejected should not continue to move along the processing queue only to be rejected at some later date.

    PHMSA has stated that it queues applications on a “first come, first served” basis. While we support this prioritization principle, it does not recognize the fact that applications are different and, once in the system, applications should be assigned to separate tracks and staff who specialize in the processing of application types. For example, it seems intuitive that classification approvals with a 3-part review process without the need for Federal Register publication or a fitness determination would require less time to complete than special permit applications with a 5-part process which includes Federal Register publication and a fitness determination. PHMSA should accommodate these distinctions with a shorter processing schedule.

    Likewise, IME has long advocated for a separate track to process applications seeking minor corrections, such as name changes, or those with minor errors, such as misspellings, or omissions. However, PHMSA states that it has a “new” practice of rejecting “incomplete” applications. The agency states that “problems with recordkeeping” require the resubmission of the entire application, with corrections, in order for a rejected application to be reconsidered. This is a costly, ineffective way for PHMSA to get around problems it has with recordkeeping. The policy may make it easy for PHMSA to clear its books, as all the costs of resubmittal, including lost commercial opportunity costs, are borne by the applicant. While we agree that incomplete applications and applications containing non-substantive errors should be tabled pending correction, we do not believe that these types of administrative deficiencies warrant returning resubmitted applications to the end of the queue and restarting the processing time-frame anew. Rather, we suggest that PHMSA establish a dual-track system, allowing applicants of incomplete applications or those otherwise tagged to be rejected for non-substantive reasons a grace period, such as 30 days, to correct the deficiency(ies) identified in the application. If the applicant resubmits a corrected application, the application should be returned to the point in the queue where it was pulled. If the applicant fails to resubmit requested information in the time allowed, the application should be rejected and any resubmittal treated as a new application.

    In what could be seen as process streamlining, PHMSA states that it “will review companies with multiple locations as one organization, placing an emphasis on its examination of the company's locations where the requested actions and/or processes are being performed.” However, the announced policy seems contradictory. A company with multiple locations is not being reviewed as one organization if, at the same time, PHMSA is examining locations where the safety permit or approval is to be carried out. If PHMSA means some type of middle ground, it should clarify how many “locations” within a company will be visited and how the locations will be selected.

    It is important that PHMSA look for opportunities to streamline its 120-day special permit and approval processes. In each of the last four fiscal years, PHMSA has requested Congress to authorize millions in user fees to pay for the costs to administer the SPAP. SPAP users have resisted efforts to impose these fees for many reasons. One key reason is that PHMSA has done nothing to restrain its own costs within the program. Meanwhile, we are grateful that Congress has rejected these budget requests.

    While PHMSA requests that applicants submit their special permit and approval applications 120 days before they would like them to be issued, PHMSA is not restricted by this timeline. Typically, it takes PHMSA less than 180 days to process a special permit application, approximately 45 days to process an approval classification, and approximately 5-6 days to process a VIN application provided all are correct and complete. While PHMSA agrees that the application process should be streamlined to the extent possible, PHMSA must take what time is needed to efficiently and effectively determine that the actions requested in each application are safe and what modifications, if any, may be needed to make the requested actions safe. PHMSA believes that it must consider applications as they are received to be fair to those applicants who have prepared their applications correctly. PHMSA disagrees with the IME and other commenters that establishing grace periods for applications with missing information will improve its ability to streamline its application process. Past efforts to create internal systems that did this significantly delayed PHMSA's ability to process applications efficiently. Further, budgetary constraints prevent PHMSA from modifying its current application processing software to create a separate application process for managing routine administrative application changes.

    Over the past 10 years, approximately 10 percent of PHMSA's special permit applications have been in processing for greater than 180 days. PHMSA must report applications that are not processed within 180 days in the Federal Register. PHMSA agrees that whenever an application fails any stage in the process, this failure should trigger immediate notification to the applicant to avoid excessive delays. To improve the transparency of this process, PHMSA has developed and is testing an online process for submitting and checking on the status of special permit and approval applications. This online system is being designed to notify applicants when their applications have failed to meet the required criteria. Once the testing is completed and the software is performing correctly, PHMSA will make this online information available to the general public. This online method should also improve times for issuing “M” and “VIN” numbers, and renewals.

    PHMSA disagrees with the request to reduce processing times by no longer publishing notifications of applications received in the Federal Register. PHMSA is required by law to provide public notification in the Federal Register of its receipt of special permit applications only (see §§ 107.113(b) and (j), and 107.117(g)).

    Regarding screening applicants with multiple locations as one entity, PHMSA agrees. PHMSA already performs its initial screening of these applicants as one entity; however, follow-up reviews are more site-specific, based on the number of locations and resource availability.

    PHMSA also agrees with the IME that the language explaining the difference between the completeness phase to determine if the application contains all the information required by the HMR, and the evaluation phase to determine if the application is technically complete, is confusing. Further, the NPRM's preamble stated the evaluation phase will be used to “determine if the application is complete.” This duplication is needless and will slow the processing of the application. Therefore, in this final rule PHMSA is revising the Appendix to clarify the difference between the completeness phase and the evaluation phase.

    Fitness Determination Procedure

    The IME also expressed concern with the procedures and policies PHMSA is using to determine “fitness.”

    PHMSA states that “incorporating an elaborate review system into the HMR . . . would be extremely difficult [given] the wide range of applicants.” PHMSA is not alone in the realization that establishing standards to fairly and accurately determine fitness of a myriad of private entities is a daunting task. The Federal Motor Carrier Safety Administration (FMCSA) has been attempting to update its fitness standards for years. However, PHMSA proposes to overcome the difficulty of this task by “incorporat[ing] a more straightforward, user-friendly review system.” While we can hope for a process that is straightforward and user-friendly, first and foremost PHMSA needs to accurately disclose the process and standards it is using.

    As stated earlier in this preamble, PHMSA will conduct most of its safety profile evaluations through administrative research. PHMSA will conduct its site-specific and situational-dependent safety profile evaluations based on highest priority with regard to safety risk, and the number of locations and availability of agency resources to perform these tasks.

    Fitness Determination Frequency

    The IME commented on the frequency of fitness determinations when it stated that:

    IME recommended that fitness determination reviews not be triggered by the filing of an application but be periodically performed at least once every four-years unless revoked or suspended due to subsequent findings of imminent hazard or a pattern of knowing or willful non-compliance. PHMSA addresses this concern, in large part, by announcing that it considers only fitness data since the last review. While this is a step in the right direction, applicants may submit several applications at the same or proximate time. It seems a waste of resources to ramp up separate fitness reviews for the same day or even month. We would recommend some de minimis exception between applications. Otherwise, the review becomes just a paper exercise and the cost may not be justified. Keep in mind that a de minimis exception does not preclude PHMSA from suspending or revoking a permit or approval whenever additional proof of non-compliance comes to light.

    PHMSA disagrees. As stated earlier in this preamble, when PHMSA receives multiple applications from one entity within a short period of time, PHMSA consolidates these applications when performing its safety review. PHMSA has a five-year plan for reviewing cylinders but a one-year plan for reviewing explosives because we have developed our program to be responsive to the level of risks associated with these materials. However, PHMSA does not have the resources to commit to reviewing special permit and approval applicants every four years. PHMSA increases the frequency of its inspections involving materials with greater incident risks regardless of the type of applicant.

    On-Site Reviews for Fitness Determinations

    In its comments, the IME recommended that:

    The onsite reviews of fitness be reserved to a small set of applicants that have a history of serious hazmat incidents. However, PHMSA believes that these reviews should be a standard part of the process since onsite reviews are necessary to support the “accuracy” of the determination. This statement appears to conflict the fitness triggers that suggest only applicants exceeding certain performance thresholds would be subject to an onsite inspection. Additional agency justifications for onsite reviews—specifically whether packagings and/or operations requested are safe or what additional operational controls or limitations may be needed—may be relevant to the technical evaluation, but not to the determination of fitness. Finally, we agree that an onsite visit may be used to clear up misunderstandings or inaccuracies. However, the option to conduct an onsite review in these instances should be in response to a request from the applicant. Onsite reviews are no doubt the most costly aspect of the fitness determination process. As noted, some applicants may file multiple applications in a short timeframe. We continue to believe that onsite reviews should only be triggered when fitness cannot be demonstrated by some other means.

    PHMSA disagrees that on-site reviews would be required for all applicants. PHMSA plans to conduct on-site reviews for only a small percentage of companies that are determined to have failed a safety profile review. However, an on-site review is not required to make a determination of “unfit.” Since 2010, PHMSA performed on-site reviews of five or fewer companies and none were determined to be unfit. PHMSA agrees that on-site reviews and accompanying close-out consultations are opportunities to clear up misunderstandings and inaccuracies.

    Data Accuracy

    In response to a solicitation by PHMSA to comment on data accuracy, the IME comments that:

    PHMSA asked for comment about how to improve the quality of the Hazmat Intelligence Portal (HIP) data it uses to determine applicant fitness. When PHMSA launched HIP, the regulated community was promised future access to their own information. This has never happened. The best way to ensure data accuracy is to give the regulated community access to their data and an opportunity to challenge and correct misinformation. FMCSA allows motor carriers access to their records and provides a process to correct errors under its CSA program. While FMCSA is still grappling to perfect its process to correct errors, the CSA program sets a precedent that PHMSA should follow.

    The vast majority of information PHMSA uses to conduct its carrier-specific fitness reviews, but not general hazardous material reviews, is contained in FMCSA's databases. PHMSA contacted other modal agencies to obtain similar incident data but these agencies either did not have the information needed or were not willing to make this information available to PHMSA. FMCSA's databases are well organized and the agency is willing to share them with PHMSA. PHMSA understands that FMCSA is revising its databases and considering ways to make this information more available to the public. When PHMSA first developed its Hazardous Materials Information System (HMIS) and Hazmat Intelligence Portal (HIP) databases, its intent was to make this information available to the general public. However, PHMSA was unable to complete this step due to budget and software design considerations. PHMSA intends to revise the HMIS, HIP, or other prospective application processing technology, to make the information it contains available to the public in the future.

    Fitness Standards

    The IME addressed fitness standards in its comments as follows:

    The standards by which PHMSA determines “fitness” have profound implications for applicants. PHMSA still proposes a three-tiered review process. PHMSA explains that the applicant is first screened to see if a SPR [safety profile review] is triggered. Second, if a SPR finds any of a second set of risk indicators, an onsite review is triggered. Third, PHMSA's field operations staff (FOS) will submit a fitness memorandum with a recommendation of fit or unfit. However, this process continues to be seriously flawed:

    Incident Triggers: PHMSA states that it is removing low-level incident data from its tier 1 automated fitness determination process, and focusing on three incident categories to trigger a SPR—incidents resulting in death, incidents resulting in injury, and “high-consequence” incidents. However, there are no definitions of “injury” or “high-consequence.” First, we would urge PHMSA to adopt the same definition it uses for a “major injury”—one that requires a hospitalization—when reporting hazardous materials incidents as the definition of “injury” under the fitness standard. Second, PHMSA also needs to define “high-consequence” incident, and that definition must filter what incidents will trigger a tier 3 onsite review under the “Table 1” and “bulk packaging” tier 1 automatic screen. These tier 1 screens require that two or more incidents involve a Table 1 applicant or, in the case of a bulk packaging applicant, three or more incidents, in order to trigger a tier 2 SPR referral. During the SPR, PHMSA states that incidents not attributed to the applicant are dropped. However, we disagree with PHMSA's policy that “any” of these attributable Table 1 or bulk package incidents would then trigger a tier 3 onsite review regardless of outcome. Just because the incident involved these materials or equipment does not ipso facto mean that the result of the incident was “high-consequence.” Such an interpretation would negate PHMSA's promise that it is removing “low-level incident data” from the fitness determination. (Also see comments on review triggers below.) We do agree with PHMSA that an incident resulting in a death or injury (requiring hospitalization) attributable to the applicant (other than driver error) is an appropriate standard to trigger a tier 3 review. Finally, an incident attributable to a “package” may be relevant for a technical evaluation, but it is unclear why such an incident would be relevant to the fitness determination.

    Conflicting Tier 1 Triggers: Despite the statement above that only three types of high consequence incidents would trigger a fitness review, PHMSA states that a “pattern of minor violations may reveal larger problems that could adversely affect transportation safety.” Again, this statement appears to negate PHMSA's statements about what standards may result in a determination of “unfit.”

    Conflicting Tier 2 Triggers: In the preamble, PHMSA states that it has revised its SOP to base fitness evaluations (and SPRs) on incidents and/or violations revealing “flagrant patterns and serious violations.” (Emphasis PHMSA's.) Later in the preamble, PHMSA states that “the suggestion to ignore minor leaks in packaging may not be inconsequential depending on the risks contained in the material, and, therefore, [PHMSA] may not eliminate this as a consideration in a fitness evaluation.” The preamble also states that a trigger for a tier 2 SPR is “two or more prior enforcement case referrals.” However, PHMSA's proposed “Appendix A” states that the trigger is met if the applicant has “a [i.e., one] prior enforcement case referral.” These conflicting statements confuse rather than clarify agency policy and practice. PHMSA needs to clarify these discrepancies.

    Tier 3 standard/What is “Fit”?: Most concerning about PHMSA's notice is that applicants unlucky enough to find themselves with a tier 3 onsite review still do not know what will be examined in an onsite inspection or what standard of performance will yield a finding of “fitness.” PHMSA states that, during the inspection, “investigators” will search “for evidence that an applicant is at risk of being unable to comply with the terms of [any applicable] special permit, approval, or . . . HMR.” In fact, PHMSA states that the FOS may initiate audits of the applicant's operations when determining fitness. PHMSA should provide examples of “evidence” that would put an applicant at risk, and clarify what records will have to be produced, who onsite can expect to be interviewed, and how long an onsite review can be expected to take. The onsite inspection should conclude with a closing conference outlining options applicants will have to learn of and address any identified concerns. We assume an inspection report will be prepared. Please clarify whether the applicant will receive a copy. Without some limitations, these inspections could degenerate into fishing expeditions. The uncertainty of what level of performance would produce a finding of “fit” is a burden that will only be borne by U.S. businesses.

    Judge and Jury: FOS have been delegated responsibility for the fitness review process for all decision-making after the initial automated review. Although PHMSA proposes that the associate administrator will “review” all special permit and approval applications, the permit or approval can be issued by individuals other than the associate administrator. We are concerned that too much authority for the fitness review, inspection, and determination is left in the hands of one individual. If the associate administrator has delegated the final decision on a fitness determination to FOS, at minimum, FOS should have to get the SPAP to sign-off on the decision.

    The information PHMSA uses for safety profile reviews acquired from the incident report forms is standardized. High-consequence/injury events are similar to requirements which trigger National Response Center reporting under § 171.15. Incident reports may also be caused by incorrect package assembly or improper maintenance. Fitness coordinators will consult this information in addition to that provided in an application and, if clarifying information is needed, will contact the applicant to obtain it. If the information the applicant provides is sufficient, an on-site inspection may not be necessary. Also, participation from PHMSA's Engineering and Research Division may be required. PHMSA will conduct an on-site review if it has evidence that: (1) An applicant is at risk of being unable to comply with the terms of an application; (2) any incident listed under paragraph 3(b)(i)(1) of the Appendix A to Part 107 is attributable to the applicant or package, other than driver error; (3) during an inspection in the four years prior to submitting the application an applicant has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for or an existing special permit, approval, or the HMR; or (4) incorrect or missing markings, labels, placards or shipping papers. The safety profile evaluation will normally follow the same procedures as an inspection. As stated earlier, the FOPS officer or OA representative will provide an exit briefing to document any observed violations, including those which may affect fitness determinations. After PHMSA's Field Operations Division staff, or a representative of the Department, completes the safety profile evaluation the FOPS staff person or OA representative will make a recommendation to PHMSA's Approvals and Permits Division if a company is fit or unfit. PHMSA's Approvals and Permits Division will make the final fitness determination. Denied applicants have a right to reconsideration and appeal of that decision as prescribed in §§ 107.123, 107.125, 107.715, and 107.717. Further, PHMSA must include the scope of its inspection responsibilities under the HMR in the safety profile reviews it conducts.

    Presumption of Guilt

    In its comments, IME stated that:

    PHMSA states that the process it has implemented “does not presume innocence or guilt” of an applicant. However, “new companies with no performance history” will still be subject to a fitness determination. PHMSA's treatment of new companies is one that presumes non-compliance. These reviews will be based on a new company's “training records.” Training records are only available for review onsite. Consequently, new companies will automatically find themselves pushed to a tier 3 inspection. We disagree that new companies automatically warrant this costly level of review. Additionally, PHMSA states that “select holders” who have never been inspected will be automatically referred for a tier 2 SPR. Again, this criterion is based on a presumption of non-compliance. This fact alone should not be a justification for a fitness review.

    PHMSA agrees that an applicant's history should not imply a presumption of guilt and there is no need to require on-site review of hazmat matters with lower risk, such as training records. PHMSA does not believe that an applicant's lack of data is correlated to non-compliance. New companies are automatically presumed to pass their safety review since they have no “triggers” in the system. However, the fact that a company is new does not prevent PHMSA from doing inspections under other sections of the HMR.

    Modal Evaluation

    Regarding the evaluation performed by various modes during a fitness determination, IME commented that:

    PHMSA states that it coordinates application evaluation with DOT modal agencies when the application is “mode specific, precedent setting, or meet[s] federal criteria for a “ `significant economic impact'.” We question the rationale for involving a modal agency in any application that does not involve the mode irrespective of whether it is precedent setting, or of significant economic impact. Furthermore, all modes have their own standards for determining “fitness.” PHMSA should not allow modal agencies to use PHMSA's fitness procedures to impose more stringent fitness requirements than already exist in their modal regulations. Likewise, PHMSA should not use the fitness assessment process to impose its interpretation of who is a fit carrier on the modal agencies. We believe that the data reviewed should be relevant to the application. If an application involves “shipper” activities, “carrier” incidents attributable to the applicant, for example, should not be considered in the fitness determination. Likewise, modal agencies should not be involved in classification approvals. For example, applications for explosives classifications are based on UN tests performed by PHMSA-approved laboratories. There is no modal nexus to classification approvals.

    The DOT's modal agencies currently evaluate only those issues that are germane to their mode of transportation according to their own established criteria, and this will continue. In most cases, modal agencies will not be involved in the evaluation of classification approvals. However, the modal agencies may make fitness recommendations with on-site reviews of an applicant according to their own established criteria.

    Guidance

    In its comments, IME expressed concern whether the Appendix proposed in the NPRM was considered by PHMSA as a regulation when it stated that:

    PHMSA states that rulemaking is not required because it considers these criteria to be “internal” guidance for its staff. Acting on this declaration, PHMSA proposes to incorporate its SOPs and fitness criteria into the HMR only as an “appendix.” This nomenclature and justification are troubling. Congress certainly felt that the SPAP SOPs and fitness criteria warrant the status of a rule, directing that “regulations” be issued by a date certain. Moreover, to be crystal clear in its intent, Congress directed that these rules be issued under the Administrative Procedure Act. PHMSA's declaration that this appendix is simply guidance begs the question of how the agency views the legal status of the document. As “guidance”, does PHMSA believe that the appendix can be changed, after this initial “rulemaking”, at will, as the agency has done to the current SOPs? We ask PHMSA to resist any temptation to treat the appendix as anything less than a regulation and to clarify the legal standing of the “appendix” in the final rule. Agency guidance issued without the benefit of careful consideration under the procedures for regulatory development and review risks being arbitrary and capricious.

    PHMSA disagrees. The Appendix prescribed in this final rule is regulatory text that also performs as guidance because it discloses PHMSA's administrative processes to the regulated public. To change the language in this appendix, PHMSA must issue a rulemaking. Another example of an appendix in the HMR that sets forth guidance is the “List of Frequently Cited Violations” in Appendix A of 49 CFR part 107, subpart D. Both inform the regulated public of general guidelines PHMSA uses to make determinations.

    Reconsideration/Appeals

    The IME noted that in the NPRM PHMSA proposed to process requests for reconsideration and appeals of special permit and approval decisions “in the same manner . . . [as] new applications.” It asked “what is the point of making such a filing if the application will simply be treated as a new application?” In addition, IME stated that “requests for reconsideration and appeals should be handled on a separate track from new applications.”

    PHMSA agrees that applications for reconsideration and appeals will be treated differently from regular special permit and approval applications. Reconsideration requests are managed within the Special Permit and Approvals Division in conformance with § 107.123 for special permits and § 107.715 for approvals, and appeals are managed outside of the Special Permits and Approvals Division by PHMSA's Office of Chief Counsel. When an applicant requests reconsideration of a denied application, the request is provided a higher priority in the review process. Thus, a decision will tend to be rendered more quickly since the initial review and evaluation has been completed. Appeals are handled by the Office of the Administrator and are not part of the routine special permit and approval evaluation process.

    Transparency and Accountability

    In its comments, IME noted that PHMSA describes its statutory obligation to publish notice of the receipt of special permit applications in the Federal Register. It also noted that, on its own initiative, PHMSA also occasionally publishes final actions taken on special permit applications. The IME recommended that PHMSA utilize this rulemaking to institutionalize the publication of final decisions on applications for special permits in the Federal Register.

    PHMSA is required by law to publish receipt and processing of its special permit applications in the Federal Register. This is an ongoing activity and cannot be addressed by issuing these decisions once in this final rule.

    Organizational Issues

    IME noted that:

    PHMSA enumerates six screening criteria used during the tier 1 automated fitness review. Screens 5 and 6 should be listed as standalone provisions. In contrast to screens 1 through 4, the criteria in screens 5 and 6 are not derived from the occurrence of a high-consequence event or an enforcement action. Rather, they are descriptions of when and how the automatic review will be conducted for particular applicants.

    Additionally, we question the inclusion of screen 6 in this section of the rule in light of a correction notice recently issued by PHMSA which clarifies that only those applicants who do not require coordination with an Operating Administration (OA) would be subject to the tier 1 review. Yet, screen 6 describes the review that applicants who are interstate carriers would undergo which is based on criteria of FMCSA, an OA. It seems intuitive that PHMSA would “coordinate” with FMCSA for the data used in this review.

    PHMSA agrees with the IME and will revise the language in the Appendix of this final rule to make this correction. Further, the trigger selection process is an automated review and done without FMCSA interaction.

    Interim Process

    IME comments that Congress directed PHMSA to issue the regulations contemplated by this rulemaking no later than September 30, 2014. However, the comment period for the NPRM did not close until October 14, 2014, and the statutory deadline will obviously be missed. In light of these developments, IME expresses concern about the SOPs and fitness criteria that PHMSA will continue to use before the rule is promulgated. The IME expresses the hope that PHMSA will make changes to current practices and standards, but in the interim, exercise restraint in how it carries out any punitive actions using unauthorized procedures and criteria.

    PHMSA has undergone its best effort to meet the deadline mandated for this rulemaking by the Congress in MAP-21. The provisions the commenter is requesting will become effective through the issuance of this final rule. PHMSA does not plan to implement interim SOPs or fitness criteria or make changes to its current practices and standards before the ones prescribed in this final rule are implemented. Therefore, PHMSA has addressed the commenter's concerns.

    Miscellaneous

    In its closing comments, the IME makes several recommendations:

    (1) PHMSA may wish to clarify the following statements:

    A. Further, the HMR permit, in various sections, some federal agencies limited authority to directly issue certain types of approvals because of the proven safety of the type of action and/or process requested in the approval, and the subject matter expertise each agency can provide regarding hazardous materials transportation.

    B. During the evaluation phase, if the tasks or procedures requested in each special permit or approval application are determined to provide an equivalent level of safety to that required in the HMR or, if a required safety level does not exist, that they provide a level of safety that demonstrates an alternative consistent with the public interest that will adequately protect against the risks to life and property inherent in the transportation of hazardous materials.

    (2) PHMSA's proposed definition of “applicant fitness” at § 107.1 is incorrect based on the preamble statement. Rather than “. . . a determination by PHMSA . . .”, the text should read “. . . a determination by the Associate Administrator . . .”.

    PHMSA agrees with the IME and has made these clarifications and corrections.

    E. Reusable Industrial Packaging Association Data Used for Fitness Determination

    The Reusable Industrial Packaging Association (RIPA) supports PHMSA's stated intention in the NPRM to remove “low-level” incident data from fitness determinations, focusing rather on high-level incidents involving death, injury, or other “high-consequence” cases. RIPA does not believe an isolated incident or a reported packaging leak, with no other attendant consequences, warrants a rejection of fitness. RIPA also supports PHMSA's proposal to limit the historical period to 4 years over which the agency will review an applicant's performance history, citing it as “practical and more than sufficient to ensure safety.” RIPA requested that PHMSA “. . . avoid linking a rejection or denial of an application to a single metric or a single occurrence in an applicant's history.” PHMSA has revised the guidance document to emphasize high-level incidents, but disagrees that it must not consider an isolated incident or package leak depending on how seriously the incident affects safety. If a single incident leads to death, serious injury, or a high-consequence event, rejection of that application would be appropriate and satisfy PHMSA's mission.

    Delays in Processing Approval Applications

    RIPA stated “PHMSA should address how its proposed modifications to the approval procedures will affect the increasing delays in processing approval applications. According to data recently supplied by the agency, as of October 6, 2014, there were 783 approval applications that had been in process for more than 120 days without a decision. As of July 7, 2014, there were only 570 approval applications older than 120 days. In just three months, the number of applications beyond the 120-day threshold has grown over 37 percent.” One of the purposes of PHMSA's SOPs is to aid the agency in decreasing its delays in processing special permit and approval applications by ensuring that PHMSA begins its review with as complete an application as possible.

    PHMSA disagrees. As stated earlier in this preamble, PHMSA is not restricted to a 120-day deadline. PHMSA has a responsibility to authorize only those activities deemed safe in transportation and must not institute practices that would ignore this responsibility. Each application can be unique and require different types of complex information to complete its review, and PHMSA continues to work to improve processing times.

    Approval Technical Template

    RIPA is concerned the additional levels of scrutiny for approval applicants in the proposed SOPs will add to PHMSA's delays in processing applications. RIPA also stated it asked in prior comments to the agency (February 29, 2012; Paul W. Rankin to Docket No. PHMSA-2011-0283—see http://www.regulations.gov/#!documentDetail;D=PHMSA-2011-0283-0003) how PHMSA can ask an applicant to “demonstrate its readiness to meet the terms of an approval if, in fact, the large investment required cannot be made without some certainty of being approved. PHMSA should articulate a process to encourage the adoption of new and better technologies without the huge uncertainty that the application process currently presents.” RIPA suggested PHMSA implement an “approval technical template . . . as a guideline for applicants seeking the same (or very similar) approval. Such a template might also help applicants understand better the threshold for a `complete' application.” RIPA believes that “PHMSA's plans to codify into the HMR certain approvals with wide applicability and records of safety could also go a long way in disseminating new technologies and safe practices.”

    PHMSA agrees with RIPA that some types of approvals require less scrutiny than others and, thus, take less time to review. PHMSA also agrees that creating templates to help applicants meet SOPs targets would aid the applicants with successfully completing their applications. However, all forms and other types of government requests from the public must first be developed and cleared through the Office of Management and Budget. PHMSA has not developed a template under this rulemaking, and, as a result, this activity is outside the scope of this rulemaking. Therefore, PHMSA must decline this request.

    Insufficient Corrective Actions

    RIPA found that PHMSA's proposed criteria for “insufficient corrective actions”:

    . . . taken following two or more prior enforcement cases is a standard so broad as to be nearly meaningless. If corrective actions were insufficient, isn't the applicant still out of compliance? Also, who makes a determination of “insufficient corrective action”? Is there a document trail to follow in making such a determination? What if those cases were several years in the past, and were administered by wholly different personnel? Does the proposed 4-year historic limit apply here?

    PHMSA agrees with RIPA that it should add more clarity regarding the term “insufficient corrective action.” This will aid applicants as well as those conducting reviews to determine whether an applicant meets these criteria. Additionally, this will greatly aid the review and processing of applications, and clarify to applicants when a corrective action is satisfactory under the HMR. Therefore, PHMSA has added this definition to § 107.1.

    On-Site Inspections

    RIPA believes on-site reviews should be limited to the most serious instances of safety concerns. However, it states that the criteria for “fit or unfit” remain somewhat malleable, and could support the rejection of an application based on a FOPS Division agent recommendations that may be far removed from the narrow special permit or approval being sought. RIPA requests that an on-site review of an applicant for an approval need not be a “curb-to-curb” inspection, but a limited review of the operation or packaging in question, and that inspectors should take action only on compliance issues “in plain sight.” RIPA states in its experience, this threshold provides equivalency in terms of public safety.

    As stated earlier in this final rule, an applicant that has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, must be evaluated by PHMSA to determine that the applicant is unfit to conduct the activities requested. A full inspection is necessary for a complete assessment of the company's capabilities.

    F. Sporting Arms and Ammunition Manufacturers' Institute, Inc.

    The Sporting Arms and Ammunition Manufacturers' Institute, Inc., (SAAMI) expresses appreciation of PHMSA's efforts to engage in a rulemaking process regarding the procedures for special permits and approvals applications to allow review and comment by stakeholders. It stated that such a rulemaking addresses concerns with non-transparency when internal policies are enforced but not published. In addition, SAAMI supported the proposed fitness review period of four years, classification approvals not requiring a fitness review, and subjecting applicants for party-to status on a special permit to the same fitness standards as the original applicant. However, SAAMI also expressed concerns “that inflexible and non-accountable internal policies do result in routine unjustified delays for industry operating in good faith,” and provided the following recommendations.

    MAP-21 Requirements

    In its comments, SAAMI states the SOPs as guidance will not provide “the accountability sought by industry and regulated by Congress” under Congress' MAP-21 instruction to PHMSA to issue this guidance. PHMSA disagrees. Congress directed PHMSA to issue regulations and objective criteria that support the administration and evaluation of special permit and approval applications. This final rule accomplishes that directive.

    SAAMI references PHMSA remarks in the NPRM that the Appendix A is a guidance document to be used by PHMSA for the internal management of its special permits and approvals program. In addition, SAAMI questions the scope of the rule, stating its view that the proposed criteria cover fitness checks, but not other aspects of the evaluation of applications, and also believes that the Appendix A to 49 CFR part 107 is not guidance, but rather is regulation. 49 CFR part 107, Appendix A, is regulatory text because it is being published in the HMR. It also serves as agency guidance in that it discloses PHMSA's administrative processes to the regulated public. Similarly, Appendix A of 49 CFR part 107, subpart D, sets forth guidance in the HMR for frequently cited violations. Both appendices inform the regulated public of general guidelines PHMSA uses to make determinations.

    Length of Time To Process Approvals

    SAAMI states its awareness that classification approvals are taking “far too long to be issued.” Specifically, SAAMI states the 120-day timeline PHMSA currently uses “is twice or more the typical time used by other governments to issue similar approvals. This now has been increased to 180 days in notices sent to applicants. Industry can't function efficiently when their new product introductions are delayed.” However, SAAMI supports PHMSA delegating these responsibilities to certified third parties, because it states “the number of PHMSA staff working on these approvals” and “the small technical team responsible for 20,000 approvals per year” is inadequate to quickly perform these tasks, especially when diverted by other work responsibilities like evaluating issues concerning crude oil by rail or other technical questions. As stated earlier in this preamble, PHMSA is not required to issue special permits and approvals in 120 days, but instead must issue them when the agency has determined that the actions requested in the application are safe. Further, PHMSA is streamlining its internal and online practices for processing special permit and approval applications, and will strive to improve these processing times in the future, especially with regard to explosives and fireworks.

    Routine Revisions

    SAAMI states that for non-significant “routine revisions to special permits and approvals, such as a company changing its name or acquiring another company . . . [PHMSA] has been inflexible in the application of its internal, non-regulatory requirements for complete documentation of test result, packaging and so forth when there has been no change to the operations at the facility.” Noting that “some companies have hundreds or over a thousand classification approvals,” SAAMI states that these approvals should not be required to meet the new completeness criteria and “undergo a technical review with a complete data package as is currently the case.” SAAMI recommends instead that these approvals be “processed in batches as an administrative function.” SAAMI further recommends that requests for tweaks to recently modified approvals “. . . not go to the bottom of the stack with an additional 180-day waiting period,” as is also currently required, and that PHMSA resolve its recordkeeping problems “rather than making companies resubmit complete data packages” as described in the NPRM preamble. As stated earlier in this preamble, PHMSA currently does not have the resources to institute a separate processing method for routine and editorial revisions but will consider changes of this type as resources become available.

    Timelines

    SAAMI notes that special permits have determination timelines in § 107.113(a) but that approvals do not have similar provisions in § 107.709, and recommends that these sections be aligned. Similarly, SAAMI recommends that the deadline that exists in § 107.709 that requires applicants to respond to PHMSA's requests within 30 days also be applied to special permit applicants in § 107.113. SAAMI also recommends that PHMSA consider adding timelines to its responses to requests for reconsideration and appeals, which currently apply only to stakeholders. PHMSA disagrees. As stated earlier in this preamble, PHMSA is not subject to the timelines in the HMR prescribed for applicants to submit special permit and approval applications for processing and renewal. PHMSA must ensure the activities requested in these applications are safe before approving these requests.

    Fitness Procedures

    SAAMI's comments regarding fitness procedures indicated that PHMSA should focus on the most serious safety concerns and believe that some of the criteria PHMSA proposes to use to evaluate an applicant's fitness are not adequate to make this assessment. PHMSA agrees and has made these changes.

    SAAMI noted that of the six criteria listed in proposed Appendix A paragraph (3)(i), two refer to “incidents.” SAAMI recommends PHMSA define “incidents” “to ensure that only serious incidents will be factored in.” PHMSA declines this request. “Incident” is already defined in § 107.1 as “. . . an event resulting in the unintended and unanticipated release of a hazardous material or an event meeting incident reporting requirements in §§ 171.15 or 171.16 of this chapter.”

    SAAMI noted that although the criterion for insufficient corrective action relevant to a prior enforcement case is defined, the definition merely states that the fitness officer has made a determination. SAAMI recommends that this determination be quantified and the subsequent criteria be published in a rulemaking for transparency, due to the serious impact of application rejection. PHMSA disagrees. Special permit and approval applications are reviewed on a case-by-case basis because they are often unique and sometimes include information subject to applicant confidentiality requests. PHMSA believes providing specific determinations and corrective actions directly to an applicant is the most effective way to convey the compliance information where it is needed. Also, as stated earlier, PHMSA has revised this final rule to establish two, instead of four, triggers of violations for each applicant for a safety profile review or five or more triggers for an on-site inspection enforcement case referral event. Either will result in a failed automatic safety profile evaluation recommendation. Fitness Coordinators will follow-up with the applicant to provide and obtain clarifying information.

    SAAMI recommends that to reduce subjectivity in safety profile and on-site fitness reviews, PHMSA document the criteria used to make these determinations. SAAMI also suggests that minor violations of the HMR that do not seriously impact safety not be factored in a fitness review. To address this issue, SAAMI further recommends that PHMSA “create a threshold below which violations are not factored in the review, or if a pattern of minor violations are taken into [e]ffect,” PHMSA should create a metric to determine what is a pattern and provide an opportunity for public comment. PHMSA disagrees. For the two trigger violation thresholds, only enforcement cases are factored in. Enforcement cases only pertain to serious safety violations.

    Finally, SAAMI states “there is too much subjectivity inherent in the proposed authority to be given to the PHMSA Field Operations Officer or authorizing Operating Administration representative.” SAAMI requests that violations be given an administrative second check to verify that they exist and that PHMSA should provide recourse to a company to challenge such findings without their having to resubmit a data package. SAAMI recommends that for applicants with multiple or frequent applications, “fitness reviews[,] including on-site reviews[,] should not be conducted until after a certain time has elapsed since the last review.” Without such limits, SAAMI states, “the review becomes just a paper exercise using scarce resources of the agency.” PHMSA disagrees. As stated earlier, the fitness coordinator will contact the applicant for clarifying information that may eliminate the need for an on-site inspection. Violations in case reports are given second reviews by a first-line supervisor in the field and then by PHMSA legal counsel. Subsequent reviews are only completed up to the time of the last review to determine if something serious happened since the last review.

    Closing Recommendations

    SAAMI closes out its comments by providing a list of recommendations. They are as follows:

    SAAMI recommends that PHMSA align the description of the type of approvals with those listed for special permits by adding classification, non-classification and registration approvals, noting that the NPRM “lists all types of special permits but only agency designation approvals. Classification, non-classification and registration approvals are not listed.” PHMSA disagrees. The Appendix in this final rule provides this exact information in the table “Special Permit and Approval Evaluation Review Process.”

    SAAMI requests that PHMSA clarify in Appendix paragraph (3)(b)(ii) who will perform the fitness check when more than one OA is involved to streamline the process and clarify that PHMSA's performance of a fitness review is not an additional [seventh] fitness review criterion. SAAMI recommends that PHMSA perform the fitness review if more than one OA is involved using this language: “The applicable OA performs a profile review if one mode of transportation is requested in the application[;] however, PHMSA [will perform] the review if two or more modes of transportation are included.” PHMSA agrees that we do, and would oversee and not perform a safety profile evaluation if more than one mode is needed.

    SAAMI requests that PHMSA clarify that OA's will not be permitted “to use fitness procedures to impose more stringent fitness requirements than already exist in the OA's regulations.” While PHMSA agrees that this clarification would be useful, this action is beyond the scope of this rulemaking because it is dictated by each OA's internal process documents. All special permit and approvals subject to OA coordination will be subject to OA criteria for fitness and not all of the OA criteria are regulatory. For example, air carrier fitness will be based upon whether or not the air carrier has “will-carry” status and is fit to fly. Therefore, FAA cannot in good conscience say an air carrier is fit to perform the activities prescribed in a special permit when the carrier has been assessed as not fit to fly. Therefore, PHMSA denies this request.

    SAAMI points out that in Appendix A (3)(b)(iii), the reference to (3)(b) refers to itself, and suggested revising the reference to (3)(b)(i) and (3)(b)(ii). PHMSA agrees and has made this correction.

    SAAMI requests that the language in Appendix paragraph (4)(a) and (4)(b) be revised to clarify that special permit and approval applications are not issued. PHMSA agrees and has made this correction.

    IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C. 5103(b), which authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) authorizes the Secretary of Transportation to issue a special permit from a regulation prescribed in sections 5103(b), 5104, 5110, or 5112 of the Federal Hazardous Materials Transportation Law to a person transporting, or causing to be transported, hazardous material in a way that achieves a safety level at least equal to the safety level required under the law, or is consistent with the public interest, if a required safety level does not exist. This final rule is also established under the authority of section 33012(a) of MAP-21 (Public Law 112-141, July 6, 2012). Section 33012(a) requires that no later than July 6, 2014, the Secretary of Transportation issue a rulemaking to provide notice and an opportunity for public comment on proposed regulations that establish standard operating procedures (SOPs) to support administration of the special permit and approval programs, and objective criteria to support the evaluation of special permit and approval applications. In this final rule, PHMSA is addressing the provisions in the Act.

    B. Executive Order 12866, 13563, and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action under § 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget (OMB). The final rule is not considered a significant rule under the Regulatory Policies and Procedures order issued by the Department of Transportation [44 FR 11034].

    Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” Executive Order 13563 supplements and reaffirms the principles governing regulatory review that were established in Executive Order 12866, Regulatory Planning and Review of September 30, 1993. Additionally, Executive Orders 12866, and 13563 require agencies to provide a meaningful opportunity for public participation. Accordingly, PHMSA invited public comment on these considerations at a public meeting held on February 29, 2012 (see Docket No. PHMSA-2011-0283), and in the NPRMs issued on August 12, 2014, and September 12, 2014, under Docket No. PHMSA-2012-0260. PHMSA requested that the public include in its comments any cost or benefit figures or factors, alternative approaches, and relevant scientific, technical and economic data. These comments aided PHMSA in the evaluation of the proposed requirements. PHMSA has since revised our evaluation and analysis to address the public comments received.

    In this final rule, PHMSA amends the HMR to incorporate SOPs for processing and issuing special permit and approval applications. Incorporating these provisions into regulations of general applicability will provide shippers and carriers with clarity and flexibility to comply with PHMSA's initial review and, as needed, subsequent renewal or modification process. In addition, the final rule would reduce the paperwork burden on industry and this agency from delays in processing incomplete applications. Taken together, the provisions of this final rule would improve the efficacy of the special permit and approval application and issuance process, which will promote the continued safe transportation of hazardous materials, while reducing transportation costs for the industry and administrative costs for the agency.

    While the majority of commenters did not suggest this rulemaking would impose any cost to the regulated community, IME did note costs and benefits change when the procedures and standards change. PHMSA agrees that changes to procedures could impact both cost and benefits, but we reiterate this rulemaking does not change current practices; rather, it simply codifies current operating procedures of the Approval and Permits Division. Therefore, PHMSA does not anticipate increased cost and the impact of this final rule is presumed to be minor. It intends to provide clarity by reducing applicant confusion regarding the special permit and approval application and renewal process, and improve the quality of information and completeness of the application submitted. Although it is difficult to quantify the savings, many special permits and approvals have economically impacted companies by improving the efficiency and safety of their operations in a manner that meets or exceeds the requirements prescribed in the HMR. Some examples of positive economic impacts include allowing the use of less expensive non-specification packages, reducing the number of tasks, or other methods that reduce costs incurred before the approval or special permit is issued. As a result, PHMSA calculates that this final rule does not impose any costs on industry. Although a slight reduction in the costs associated with processing delays may provide nominal benefits, generally, this final rule affects only agency procedures; therefore, we assume no change in current industry costs or benefits.

    C. Executive Order 13132

    This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule would preempt state, local and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) preempting state, local and Indian tribe requirements on certain covered subjects. The covered subjects are:

    (1) The designation, description, and classification of hazardous materials;

    (2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

    (3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

    (4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; and

    (5) The designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

    This final rule addresses covered subject items (1), (2), (3), and (5) and would preempt any State, local, or Indian tribe requirements not meeting the “substantively the same” standard. 49 U.S.C. 5125(b)(2) states that if PHMSA issues a regulation concerning any of the covered subjects, it must determine and publish, in the Federal Register, the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule, and not later than two years after the date of issuance. PHMSA proposes the effective date of federal preemption will be 90 days from publication of the final rule in this matter in the Federal Register.

    D. Executive Order 13175

    This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications and does not impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

    E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant impact on a substantial number of small entities. Incorporation of these SOPs into regulations of general applicability will provide shippers and carriers with additional flexibility to comply with established safety requirements, thereby reducing transportation costs and increasing productivity. Entities affected by the final rule conceivably include all persons—shippers, carriers, and others—who offer and/or transport in commerce hazardous materials. The specific focus of the final rule is to incorporate standard procedures to assess an applicant's fitness, i.e., ability, to perform the required tasks to receive the relief from the HMR that each applicant is requesting. Overall, this final rule will reduce the compliance burden on the regulated industries by clarifying PHMSA's informational requirements for a special permit and approval application. We expect that the applicant will be better able to provide this information and, as a result, PHMSA can improve application processing and issuance times.

    The Institute of Makers of Explosives (IME) stated the majority of its members are small businesses and the following: (1) Classification approvals are also the basis for obtaining authorization from foreign competent authorities to transport explosive products abroad, (2) criteria PHMSA uses for determining a company's fitness to carry out the terms of a special permit or approval can have profound implications for the ability of the commercial explosives industry to continue to do business in the United States, (3) differences between past SOPs PHMSA posted on line and the ones approved under this rulemaking may result in costs and benefits not currently assigned to this rulemaking, and (4) backlogs in processing special permit and approval applications adversely affect U.S. competitiveness. However, the IME did not provide any cost information to quantify the possible effects the SOP guidance proposed in the NPRM would have on its industry.

    PHMSA's SOPs for special permits and approvals serve as internal administrative guidance to help its staff properly process these applications, reduce delays, and accommodate changes to automated systems, database availability, and DOT and PHMSA directives. PHMSA recognizes the financial impact special permits and approvals have on industry processes. As mentioned earlier in this preamble, risks associated with hazardous materials and the potential for severe consequences to the public and environment, if they are improperly transported, require that PHMSA must not authorize permission to transport these materials in a manner not permitted under the HMR until PHMSA ensures that the actions requested and the persons performing these actions are safe. In response to requests from commenters, including the IME, PHMSA revised the SOPs in this final rule for clarity, and to include activities for applicant review that are statistically revealed to be greater indicators of their safe performance in transportation. In addition, PHMSA committed to investigate opportunities to improve its special permit and approval application review processes in the future, as these opportunities become available to the agency. Therefore, we certify that this final rule will not have a significant economic impact on a substantial number of small entities.

    This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.

    F. Paperwork Reduction Act

    PHMSA has analyzed this final rule in accordance with the Paperwork Reduction Act of 1995 (PRA). The PRA requires federal agencies to minimize the paperwork burden imposed on the American public by ensuring maximum utility and quality of federal information, ensuring the use of information technology to improve government performance, and improving the federal government's accountability for managing information collection activities. This final rule's benefits include reducing applicant confusion about the special permit and approval application and renewal processes; improving the quality of information and completeness of applications submitted; and improving applicant processing times. This final rule does not impose any additional costs on industry. Although a slight reduction in the costs associated with processing delays may provide nominal benefits, generally, this final rule affects only agency procedures; therefore, this final rule contains no new information collection requirements subject to the PRA. Further, this final rule does not include new reporting or recordkeeping requirements.

    As stated earlier in this preamble, PHMSA is not aware of any information collection and recordkeeping burdens for the hazardous materials industry associated with the requirements proposed in this rulemaking. Thus, PHMSA has not prepared an information collection document for this rulemaking and did not assess its potential information collection costs. However, if any regulated entities determine they will incur information and recordkeeping costs as a result of this final rule, if information on this matter should become available, or if commenters have questions concerning information collection on this final rule, PHMSA requests that they provide comments on the possible burden developing, implementing, and maintaining records and information these requirements may impose on businesses applying for a special permit or approval. Please direct your comments or questions to Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, Telephone (202) 366-8553.

    G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.

    H. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either state, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the proposed rule.

    I. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations require federal agencies to conduct an environmental review considering the need for the proposed action, alternatives to the proposed action, probable environmental impacts of the proposed action and alternatives, and the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).

    The Need for the Proposed Action

    This final rule revises the HMR to include the standard operating procedures and criteria used to evaluate applications for special permits and approvals. This rulemaking also provides clarity for the applicant as to what conditions need to be satisfied to promote completeness of the applications submitted.

    Hazardous materials are capable of affecting human health and the environment if a release were to occur. The need for hazardous materials to support essential services means transportation of highly hazardous materials is unavoidable. These shipments frequently move through densely populated or environmentally sensitive areas where the consequences of an incident could entail loss of life, serious injury, or significant environmental damage. Atmospheric, aquatic, terrestrial, and vegetal resources (for example, wildlife habitats) could also be affected by a hazardous materials release. The adverse environmental impacts associated with releases of most hazardous materials are short-term impacts that can be greatly reduced or eliminated through prompt clean-up of the incident scene. Improving the process by which the agency assesses the ability of each applicant to perform the tasks issued in a special permit improves the chance that the tasks in each special permit issued will be performed safely. Therefore, we do not anticipate any significant positive or negative impacts on the environment by incorporating these SOPs into the HMR.

    Alternatives to the Proposed Action

    The purpose and need of this final rule is to establish criteria for evaluating applications for approvals and special permits based on the HMR, including assessing an applicant's ability to operate under the approval or special permit. More information about benefits of this final rule can be found in the preamble to this final rule. The alternatives considered in the analysis include: (1) The proposed action, that is, incorporation of SOPs to evaluate applications for approvals and special permits based on the HMR, including assessing an applicant's ability to operate under the approval or special permit into the HMR; and (2) incorporation of some subset of these proposed requirements (i.e., only some of the proposed requirements or modifications to these requirements in response to comments received to the NPRM) as amendments to the HMR; and (3) the “no action” alternative, meaning that none of the NPRM actions would be incorporated into the HMR.

    Analysis of the Alternatives (1) Incorporate Special Permit and Approval Processing Standard Operating Procedures

    We proposed clarifications to certain HMR requirements to include those methods for assessing the ability of new special permit and approval applicants, and those applying for renewals of special permits and approvals, to perform the tasks they have requested for transporting hazardous materials. The process through which special permits and approvals are evaluated requires the applicant to demonstrate that the requested approval, the alternative transportation method, or proposed packaging provides an equivalent level of safety as that for activities and packagings authorized under the HMR. Implicit in this process is that the special permit or approval must provide an equivalent level of environmental protection as that provided in the HMR or demonstrate an alternative consistent with the public interest that will adequately protect against the risks to life and property inherent in the transportation of hazardous materials. Thus, incorporating SOPs to assess the performance capability of special permit and approval applicants should maintain or exceed the existing environmental protections built into the HMR.

    (2) Incorporation of Some, But Not All, of the Proposed Requirements or Modifications to These Requirements in Response to Comments Received

    The changes proposed in the NPRM were designed to promote clarity and ease of the administration of special permits and approvals during the application review process. Since these changes may make it easier for special permit and approval applicants to successfully apply to PHMSA for authorized variances from the HMR, incorporation of the special permit and approval SOPs into the HMR may result in an increased number of applicants transporting hazardous materials under these types of variances. Because PHMSA will have determined the shipping methods authorized under these new variances to be at least equal to the safety level required under the HMR or, if a required safety level does not exist, consistent with the public interest, PHMSA expects that these additional shipments will not result in associated environmental impacts. Incorporating only some of these changes will help to obscure the informational requirements of the special permit and approval application process, confuse the regulated public by providing a partial understanding of the information needed to submit a complete special permit or approval application, and possibly further delay application review times. PHMSA does not recommend this alternative.

    (3) No Action

    If no action is taken, then special permit and approval applicants will continue to be assessed in the same manner as they are today. This will result in no change to the current potential effects to the environment, but will also not provide the applicant with information needed to improve its application processing time within PHMSA. Further, it may negatively impact transportation in commerce by not making innovative and safe transportation alternatives more easily available to the hazmat industry. PHMSA does not recommend this alternative.

    Discussion of Environmental Impacts in Response to Comments

    PHMSA solicited comments about potential environmental impacts associated with the NPRM from other agencies, stakeholders, and citizens. None of the respondents commented on the potential environmental impacts of this rule.

    Conclusion

    The provisions of this rule build on current regulatory requirements to enhance the transportation safety of hazardous materials transported by all modes. PHMSA has calculated that this rulemaking will not impact the current risk of release of hazardous materials into the environment. Therefore, PHMSA finds that there are no significant environmental impacts associated with this final rule.

    J. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenters provide, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    K. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary, or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

    PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the final rule to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this final rule is consistent with E.O. 13609 and PHMSA's obligations.

    V. Section by Section Review § 105.5

    In § 105.5, we revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR.

    § 107.1

    In § 107.1, we revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR. In addition, we amend the HMR for clarity to add new definitions for “applicant fitness,” “fit or fitness,” “fitness coordinator,” “insufficient corrective action,” and “sufficient corrective action.”

    § 107.113

    In § 107.113, we revise paragraph (a) to state that the Associate Administrator will review all special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.

    § 107.117

    In § 107.117, we revise paragraph (e) to state that the Associate Administrator will review all emergency special permit applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.

    § 107.705

    In § 107.705, we revise paragraph (b) for clarity to state that the information the applicant provides in an approval application must be relevant to the approval request.

    § 107.709

    In § 107.709, we revise paragraph (b) to state that the Associate Administrator will review all approval applications in conformance with standard operating procedures proposed in new 49 CFR part 107, Appendix A.

    49 CFR Part 107, Appendix A

    In 49 CFR part 107, we amend the HMR to add new Appendix A to incorporate PHMSA's existing standard operating procedures for processing special permits and approval applications. The words “fitness evaluation” and “fitness review” in 3(b)(i) are replaced for clarity with the words “safety profile evaluation” and “safety profile review,” respectively. The title and words “safety profile review” in 3(b)(ii) are replaced for clarity with “safety profile evaluation.” Further, in response to comments we clarify these procedures by revising them from four to five phases and define them as consisting of: Completeness, Federal Register Publication, Evaluation, Disposition, and Reconsideration.

    § 171.8

    In § 171.8, we revise the definitions for “approval” and “special permit” to clarify that an approval and special permit may be issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR. In addition, we add language to the “Automated review” and “Safety profile review” sections of the SOPs to clarify that special permit and approval applications that undergo review by an Operating Administration (OA) will complete this review before they undergo an automated review, and that an OA review, depending on its completeness, may negate the need for the automated review, respectively.

    List of Subjects 49 CFR Part 105

    Administrative practice and procedure, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements.

    49 CFR Part 107

    Administrative practice and procedure, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements.

    49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements.

    In consideration of the foregoing, we are amending 49 CFR chapter I as follows:

    PART 105—HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL PROCEDURES 1. The authority citation for part 105 is revised to read as follows: Authority:

    49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

    2. In § 105.5, in paragraph (b), the definitions for “approval” and “special permit” are revised to read as follows:
    § 105.5 Definitions.

    Approval means a written authorization, including a competent authority approval, issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, to perform a function for which prior authorization by the Associate Administrator is required under subchapter C of this chapter (49 CFR parts 171 through 180).

    Special permit means a document issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements).

    PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES 3. The authority citation for part 107 continues to read as follows: Authority:

    49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 104-134 section 31001; Pub. L. 112-141 section 33006, 33010; 49 CFR 1.81 and 1.97.

    4. In § 107.1: a. Add in alphabetical order a definition for “applicant fitness”; b. Revise the definition for “approval”; c. Add in alphabetical order definitions for “fit or fitness,” “fitness coordinator,” and “insufficient corrective action”; d. Revise the definition for “special permit”; and e. Add in alphabetical order a definition for “sufficient corrective action”.

    The additions and revisions read as follows:

    § 107.1 Definitions.

    Applicant fitness means a determination by PHMSA, the Associate Administrator's designee, or as otherwise prescribed in the HMR, that a special permit or approval applicant is fit to conduct operations requested in the application or an authorized special permit or approval.

    Approval means a written authorization, including a competent authority approval, issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, to perform a function for which prior authorization by the Associate Administrator is required under subchapter C of this chapter (49 CFR parts 171 through 180).

    Fit or fitness means demonstrated and documented knowledge and capabilities resulting in the assurance of a level of safety and performance necessary to ensure compliance with the applicable provisions and requirements of subchapter C of this chapter or a special permit or approval issued under subchapter C of this chapter.

    Fitness coordinator means the PHMSA Field Operations (FOPS) Division officer or an authorized representative or special agent of DOT upon request, such as an Operating Administration (OA) representative, that conducts reviews regarding an organization's hazardous materials operations, including such areas as accident history, on-site inspection, compliance data, and other safety and transportation records to determine whether a special permit or approval applicant is determined to be fit as prescribed in §§ 107.113(f)(5) and 107.709(d)(5).

    Insufficient corrective action means that either a PHMSA Field Operations (FOPS) Division officer or an authorized representative or special agent of DOT upon request, such as an Operating Administration (OA) representative, has determined that evidence of an applicant's corrective action in response to prior to enforcement cases is inadequate or incomplete and the basic safety management controls proposed for the type of hazardous material, packaging, procedures, and/or mode of transportation remain inadequate to prevent recurrence of a violation.

    Special permit means a document issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapters A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements).

    Sufficient corrective action means that either a PHMSA Field Operations officer or an authorized representative or special agent of DOT upon request, such as an Operating Administration (OA) representative, has determined that evidence of an applicant's corrective action in response to prior to enforcement cases is sufficient and the basic safety management controls proposed for the type of hazardous material, packaging, procedures, and/or mode of transportation are inadequate.

    5. In § 107.113, paragraph (a) is revised to read as follows:
    § 107.113 Application processing and evaluation.

    (a) The Associate Administrator reviews an application for a special permit, modification of a special permit, party to a special permit, or renewal of a special permit in conformance with the standard operating procedures specified in appendix A of this part (“Standard Operating Procedures for Special Permits and Approvals”) to determine if it is complete and conforms with the requirements of this subpart. This determination will typically be made within 30 days of receipt of the application for a special permit, modification of a special permit, or party to a special permit, and typically within 15 days of receipt of an application for renewal of a special permit. If an application is determined to be incomplete, the Associate Administrator may reject the application. If that occurs, PHMSA will inform the applicant of the deficiency in writing.

    6. In § 107.117, paragraph (e) is revised to read as follows:
    § 107.117 Emergency processing.

    (e) Upon receipt of all information necessary to process the application, the receiving Department official transmits to the Associate Administrator, by the most rapidly available means of communication, an evaluation as to whether an emergency exists under § 107.117(a) and, if appropriate, recommendations as to the conditions to be included in the special permit. The Associate Administrator will review an application for emergency processing of a special permit in conformance with the standard operating procedures specified in appendix A of this part (“Standard Operating Procedures for Special Permits and Approvals”) to determine if it is complete and conforms with the requirements of this subpart. If the Associate Administrator determines that an emergency exists under § 107.117(a) and that, with reference to the criteria of § 107.113(f), granting of the application is in the public interest, the Associate Administrator will grant the application subject to such terms as necessary and immediately notify the applicant. If the Associate Administrator determines that an emergency does not exist or that granting of the application is not in the public interest, the applicant will be notified immediately.

    7. In § 107.705, paragraph (b) introductory text is revised to read as follows:
    § 107.705 Registrations, reports, and applications for approval.

    (b) Description of approval proposal. In addition to the provisions in paragraph (a) for an approval, an application for an approval, or an application for modification or renewal of an approval, the applicant must include the following information that is relevant to the approval application—

    8. In § 107.709, paragraph (b) is revised to read as follows:
    § 107.709 Processing of an application for approval, including an application for renewal or modification.

    (b) The Associate Administrator will review an application for an approval, modification of an approval, or renewal of an approval in conformance with the standard operating procedures specified in appendix A of this part (“Standard Operating Procedures for Special Permits and Approvals”). At any time during the processing of an application, the Associate Administrator may request additional information from the applicant. If the applicant does not respond to a written request for additional information within 30 days of the date the request was received, the Associate Administrator may deem the application incomplete and deny it. The Associate Administrator may grant a 30-day extension to respond to the written request for additional information if the applicant makes such a request in writing.

    9. Add Appendix A to 49 CFR part 107 to read as follows: Appendix A to Part 107—Standard Operating Procedures for Special Permits and Approvals

    This appendix sets forth the standard operating procedures (SOPs) for processing an application for a special permit or an approval in conformance with 49 CFR parts 107 and 171 through 180. It is to be used by PHMSA for the internal management of its special permit and approval programs.

    The words “special permit” and “approval” are defined in § 107.1. PHMSA receives applications for: (1) Designation as an approval or certification agency, (2) a new special permit or approval, renewal or modification of an existing special permit or an existing approval, (3) granting of party status to an existing special permit, and (4) in conformance with § 107.117, emergency processing for a special permit. Depending on the type of application, the SOP review process includes several phases, such as Completeness, Publication, Evaluation, and Disposition.

    Special Permit and Approval Evaluation Review Process Special permit Non-classification approval Classification approval Registration approval 1. Completeness X X X X 2. Publication X 3. Evaluation a. Technical X X X b. Safety Profile X X X 4. Disposition a. Approval X X X X b. Denial X X X X c. Reconsideration/Appeal X X X X

    An approval for assessing an applicant's ability to perform a function that does not involve classifying a hazardous material is described as a non-classification approval and certifies that: An approval holder is qualified to requalify, repair, rebuild, and/or manufacture cylinders stipulated in the HMR; an agency is qualified to perform inspections and other functions outlined in an approval and the HMR; an approval holder is providing an equivalent level of safety or safety that is consistent with the public interest in the transportation of hazardous materials outlined in the approval; and a radioactive package design or material classification fully complies with applicable domestic or international regulations. An approval for assessing the hazard class of a material is described as a classification approval and certifies that explosives, fireworks, chemical oxygen generators, self-reactive materials, and organic peroxides have been classed for manufacturing and/or transportation based on requirements stipulated in the HMR. Registration approvals include the issuance of a unique identification number used solely as an identifier or in conjunction with approval holder's name and address, or the issuance of a registration number that is evidence the approval holder is qualified to perform an HMR-authorized function, such as visually requalifying cylinders. This appendix does not include registrations issued under 49 CFR part 107, subpart G.

    1. Completeness. PHMSA reviews all special permit and approval applications to determine if they contain all the information required under § 107.105 (for a special permit), § 107.117 (for emergency processing) or § 107.402 (for designation as a certification agency) or § 107.705 (for an approval). If PHMSA determines an application does not contain all the information needed to evaluate the safety of the actions requested in the application, the Associate Administrator may reject the application. If the application is rejected, PHMSA will notify the applicant of the deficiencies in writing. An applicant may resubmit a rejected application as a new application, provided the newly submitted application contains the information PHMSA needs to make a determination.

    Emergency special permit applications must comply with all the requirements prescribed in § 107.105 for a special permit application, and contain sufficient information to determine that the applicant's request for emergency processing is justified under the conditions prescribed in § 107.117.

    2. Publication. When PHMSA determines an application for a new special permit or a request to modify an existing special permit is complete and sufficient, PHMSA publishes a summary of the application in the Federal Register in conformance with § 107.113(b). This provides the public an opportunity to comment on a request for a new or a modification of an existing special permit.

    3. Evaluation. The evaluation phase consists of two assessments, which may be done concurrently, a technical evaluation and a safety profile evaluation. When applicable, PHMSA consults and coordinates its evaluation of applications with the following Operating Administrations (OAs) that share enforcement authority under Federal hazardous material transportation law: Federal Aviation Administration, Federal Motor Carrier Safety Administration, Federal Railroad Administration, and United States Coast Guard. PHMSA also consults other agencies with hazardous material subject-matter expertise, such as the Nuclear Regulatory Commission and the Department of Energy.

    (a) Technical evaluation. A technical evaluation considers whether the proposed special permit or approval will achieve a level of safety at least equal to that required under the HMR or, if a required safety level does not exist, considers whether the proposed special permit is consistent with the public interest in that it will adequately protect against the risks to life and property inherent in the transportation of hazardous material. For a classification approval, the technical evaluation is a determination that the application meets the requirements of the regulations for issuance of the approval. If formal coordination with another OA is included as part of the evaluation phase, that OA is responsible for managing this process within the applicable OA. The OA reviews the application materials and PHMSA's technical evaluation, and may provide their own evaluation, comments and recommendations. The OA may also recommend operational controls or limitations to be incorporated into the special permit or approval to improve its safety.

    (b) Safety profile evaluation. Each applicant for a special permit or non-classification approval is subject to a safety profile evaluation to assess if the applicant is fit to conduct the activity authorized by the special permit or approval application. PHMSA will coordinate the safety profile evaluations with the appropriate OA if a proposed activity is specific to a particular mode of transportation, if the proposed activity will set new precedent or have a significant economic impact, or if an OA requests participation. PHMSA does not conduct initial safety profile reviews as part of processing classification approvals, which include fireworks, explosives, organic peroxides, and self-reactive materials. Additionally, cylinder approvals and certification agency approvals do not follow the same minimum safety profile review model.

    (i) Automated Review. An applicant for a special permit or approval which requires a safety profile evaluation, but does not include coordination with an OA, is subject to an automated safety profile review. If the applicant passes the initial automated review, the applicant is determined to be fit. If the applicant fails the initial automated review, the applicant is subject to a safety profile evaluation. An applicant that fails a safety profile evaluation may be determined to be unfit. To begin this review, PHMSA or the applicant enters the applicant's information into the web-based Hazardous Materials Information System (HMIS) or Hazmat Intelligence Portal (HIP), or other future application processing technology that provide an integrated information source to identify hazardous material safety trends through the analysis of incident and accident information, and provide access to comprehensive information on hazardous materials incidents, special permits and approvals, enforcement actions, and other elements that support PHMSA's regulatory program. PHMSA then screens the applicant to determine if, within the four years prior to submitting its application, the applicant was involved in any incident attributable to the applicant or package where two or more triggers for a safety profile review or five or more triggers for on-site inspection enforcement case referral events occurred.

    (1) The trigger events are listed in the following table:

    Trigger for safety profile review Trigger for on-site inspection * (1) Any incident that involved a death or injury; (1) Evidence that an applicant is at risk of being unable to comply with the terms of an application, including those listed below. (2) Two or more incidents involving a § 172.504(e) (placarding) Table 1 hazardous material; (2) An on-site inspection at the recommendation of the fitness coordinator if the following criteria applies—Any incident listed under automated review in paragraph 3(b)(i) of this appendix is attributable to the applicant or package, other than driver error. (3) Three or more incidents involving a bulk packaging, or an applicant that is acting as an interstate carrier of hazardous materials under the terms of the special permit or an approval; or (3) If, during an inspection, evidence is found in the four years prior to submitting its application that an applicant has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, then PHMSA will determine that the applicant is unfit to conduct the activities requested in an application or authorized special permit or approval. (4) Any incident that involved: Incorrect package selection; leaking packages; not following closure instructions; failure to test packages, if applicable; and failure to secure packages, including incorrect blocking and/or bracing. (4) Incorrect or missing: (a) Markings, (b) labels, (c) placards, or (d) shipping papers. * The Fitness Coordinator assesses and applies these triggers.

    (2) If an applicant is acting as an interstate carrier of hazardous materials under the terms of the special permit, they will be screened in an automated manner based upon criteria established by FMCSA, such as that contained in its Safety and Fitness Electronic Records (SAFER) system, which consists of interstate carrier data, several states' intrastate data, interstate vehicle registration data, and may include operational data such as inspections and crashes.

    (ii) Safety profile evaluation. A fitness coordinator, as defined in § 107.1, conducts a safety profile evaluation of all applicants meeting any of the criteria listed earlier in this appendix under “automated review,” and all applicants whose safety profile evaluations are subject to coordination with an OA, as described in introductory paragraph 3(b) of this appendix. In a safety profile evaluation, PHMSA or the OA performs an in-depth evaluation of the applicant based upon items the automated review triggered concerning the applicant's four-year performance and compliance history prior to the submission of the application. Information considered during this review may include the applicant's history of prior violations, insufficient corrective actions, or evidence that the applicant is at risk of being unable to comply with the terms of an application for an existing special permit, approval, or the HMR. PHMSA performs the review or coordinates with the OAs, if necessary, if two or more modes of transportation are requested in the application, and coordinates this review with the OA(s) of the applicable mode(s). The applicable OA performs the review if one mode of transportation is requested in the application. If necessary, the fitness coordinator will attempt to contact the applicant for clarifying information. If the information provided is sufficient, an on-site inspection may not be necessary. After conducting an evaluation, if the fitness coordinator determines that the applicant may be unfit to conduct the activities requested in the application, the coordinator will forward the request and supporting documentation to PHMSA's Field Operations Division, or a representative of the Department, such as an authorized Operating Administration representative, to perform an on-site inspection. After the safety profile evaluation is completed, if the applicant is not selected for an on-site inspection, the applicant is determined to be fit. On-site inspections are not required for fitness determinations from modal administrations according to their own procedures.

    (iii) On-Site Inspection. (A) The factors in paragraph 3(b)(i) and 3(b)(ii) are used as evidence that an applicant is at risk of being unable to comply with the terms of an application, including those listed below. PHMSA's Field Operations Division or representative of the Department, such as an Operating Administration representative, will conduct an on-site inspection at the recommendation of the fitness coordinator if one of the following criteria applies:

    (1) Any incident listed under automated review in paragraph 3(b)(i) of this appendix is attributable to the applicant or package, other than driver error;

    (2) Insufficient Corrective Actions, as defined in § 107.1, in any enforcement case for a period of four years prior to submitting the application, except when re-inspected with no violations noted; or

    (3) Items noted by an IIA on a cylinder requalifier inspection report, except when re-inspected with no violations noted.

    (B) If, during an inspection, the PHMSA investigator or a representative of the Department finds evidence in the four years prior to submitting its application that an applicant has not implemented sufficient corrective actions for prior violations, or is at risk of being unable to comply with the terms of an application for a special permit or approval, an existing special permit or approval, or the HMR, then PHMSA will determine that the applicant is unfit to conduct the activities requested in an application or authorized special permit or approval.

    4. Disposition. (a) Special Permit. If an application for a special permit is issued, PHMSA provides the applicant, in writing, with a special permit and an authorization letter if party status is authorized.

    (b) Approval. If an application for approval is issued, PHMSA provides the applicant, in writing, with an approval, which may come in various forms, including:

    (1) An “EX” approval number for classifying an explosive (including fireworks; see §§ 173.56, 173.124, 173.128, and 173.168(a));

    (2) A “RIN” (requalification identification number) to uniquely identify a cylinder requalification, repair, or rebuilding facility (see § 180.203);

    (3) A “VIN” (visual identification number) to uniquely identify a facility that performs an internal or external visual inspection, or both, of a cylinder in conformance with 49 CFR part 180, subpart C, or applicable CGA Pamphlet or HMR provision;

    (4) An “M” number for identifying packaging manufacturers (see § 178.3); or

    (5) A “CA” (competent authority) for general approvals (see §§ 107.705, 173.185, and 173.230).

    (c) Denial. An application for a special permit or approval may be denied in whole or in part. For example, if an application contains sufficient information to successfully complete its technical review but the Associate Administrator determines the applicant is unfit, the application will be denied. If an application for a special permit or an approval is denied, PHMSA provides the applicant with a brief statement, in writing, of the reasons for denial and the opportunity to request reconsideration (see §§ 107.113(g), 107.402, and 107.709(f)).

    (d) Reconsideration and Appeal. (1) Special Permit. If an application for a special permit is denied, the applicant may request reconsideration as provided in § 107.123 and, if the reconsideration is denied, may appeal as provided in § 107.125. Applicants submitting special permit reconsiderations and appeals must do so in the same manner as new applications, provided the new submission is sufficiently complete to make a determination.

    (2) Approval. If an application for an approval is denied, the applicant may request reconsideration as provided in § 107.715 and, if the reconsideration is denied, may appeal as provided in § 107.717. Applicants submitting approval reconsiderations and appeals must do so in the same manner as new applications, provided the new submission is sufficiently complete to make a determination.

    PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 10. The authority citation for part 171 is revised to read as follows: Authority:

    49 U.S.C. 5101-5128, 44701; Pub. L. 101-410, section 4 (28 U.S.C. 2461 note); Pub. L. 104-121, sections 212-213; Pub. L. 104-134, section 31001; 49 CFR 1.81 and 1.97.

    11. In § 171.8, the definitions for “approval,” and “special permit” are revised to read as follows:
    § 171.8 Definitions and abbreviations.

    Approval means a written authorization, including a competent authority approval, issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, to perform a function for which prior authorization by the Associate Administrator is required under subchapter C of this chapter (49 CFR parts 171 through 180).

    Special permit means a document issued by the Associate Administrator, the Associate Administrator's designee, or as otherwise prescribed in the HMR, under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements).

    Issued in Washington, DC, on September 2, 2015, under the authority delegated in 49 CFR part 1.97. Marie Therese Dominguez, Administrator, Pipeline and Hazardous Materials Safety Administration.
    [FR Doc. 2015-22617 Filed 9-9-15; 8:45 am] BILLING CODE 4910-60-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 140918791-4999-02] RIN 0648-XE174 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher/Processors Using Trawl Gear in the Western Regulatory Area of the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; modification of a closure.

    SUMMARY:

    NMFS is opening directed fishing for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to fully use the 2015 total allowable catch apportioned to catcher/processors using trawl gear in the Western Regulatory Area of the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), September 6, 2015, through 1200 hours, A.l.t., December 31, 2015. Comments must be received at the following address no later than 4:30 p.m., A.l.t., September 21, 2015.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2014-0118, by any of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0118, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

    NMFS closed directed fishing for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA under § 679.20(d)(1)(iii) on January 1 pursuant to the final 2015 and 2016 harvest specifications for groundfish of the Gulf of Alaska (80 FR 10250, February 25, 2015).

    NMFS has determined that as of September 2, 2015, approximately 463 metric tons of Pacific cod remain in the 2015 Pacific cod apportionment for catcher/processors using trawl gear in the Western Regulatory Area of the GOA. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2015 total allowable catch (TAC) of Pacific cod in the Western Regulatory Area of the GOA, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA. NMFS was unable to publish notification providing time for public comment because the most recent, relevant data only became available as of September 2, 2015.

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

    Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher/processors using trawl gear in the Western Regulatory Area of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until September 21, 2015.

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 4, 2015. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-22783 Filed 9-4-15; 4:15 pm] BILLING CODE 3510-22-P
    80 175 Thursday, September 10, 2015 Proposed Rules DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Part 317 [Docket No. FSIS-2008-0017] RIN 0583-AD45 Descriptive Designation for Needle- or Blade-Tenderized (Mechanically Tenderized) Beef Products; Correction AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Proposed rule; correction.

    SUMMARY:

    This document corrects the preamble to a proposed rule published in the Federal Register on June 10, 2013, regarding new labeling requirements for raw or partially cooked needle- or blade-tenderized beef products, including beef products injected with a marinade or solution. This correction removes a clerical error that appeared in the Paperwork Reduction Act section of the preamble in the proposed rule.

    FOR FURTHER INFORMATION CONTACT:

    Daniel L. Engeljohn, Ph.D., Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250-3700; Telephone (202) 205-0495; Fax (202) 720-2025.

    SUPPLEMENTARY INFORMATION: Background

    On June 10, 2013, FSIS issued a proposed rule entitled “Descriptive Designation for Needle- or Blade-Tenderized (Mechanically Tenderized) Beef Products.” FR Doc. No. 2013-13669; 78 FR 34589-34604. Within the abstract of the Paperwork Reduction Act section of the preamble to the proposed rule (FR 34603), FSIS inadvertently included the phrase “that do not fall under a regulatory standard of identity” when characterizing which products would be subject to the rule.

    When read as a whole, it is clear that this phrase within the Paperwork Reduction Act section of the preamble was made in error. In no other section of the preamble or in the proposed text of the rule did FSIS make such a statement. Additionally, the remainder of that section of the preamble, as well as the Information Collection Request that FSIS submitted to the Office of Management and Budget accounted for raw or partially cooked needle- or blade-tenderized beef products regardless of whether they fall under a regulatory standard of identity. Moreover, the final rule that FSIS published on May 18, 2015 (80 FR 28153), did not exempt any raw or partially cooked mechanically tenderized products that fall under a regulatory standard of identity from its provisions. FSIS is therefore correcting the clerical error in the proposed rule's Paperwork Reduction Act section.

    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 it on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this Federal Register 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.

    Correction

    In the proposed rule, entitled Descriptive Designation for Needle- or Blade-Tenderized (Mechanically Tenderized) Beef Products (FR Doc. No. 2013-13669), beginning on page 34589 in the issue of Monday, June 10, 2013, make the following correction in the Paperwork Reduction Act section.

    On page 34603, in the second column, remove “, that do not fall under a regulatory standard of identity.” and add a period after “solution”.

    Done in Washington, DC, on September 4, 2015. Alfred V. Almanza, Acting Administrator.
    [FR Doc. 2015-22778 Filed 9-9-15; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket Number EERE-2015-BT-STD-0016] Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Walk-In Cooler and Freezer Refrigeration Systems Working Group To Negotiate Energy Conservation Standards AGENCY:

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

    ACTION:

    Notice of public meetings.

    SUMMARY:

    The U.S. Department of Energy (DOE) announces public meetings and webinars for the Walk-in Cooler and Freezer Refrigeration Systems Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the Federal Register.

    DATES:

    See SUPPLEMENTARY INFORMATION section for meeting dates.

    ADDRESSES:

    The meetings will be held at U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585 unless otherwise stated.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Ashley Armstrong U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-4563. Email: [email protected]

    Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    DOE will host public meetings and webinars on the below dates. Meetings will be hosted in room 8E-089 at DOE's Forrestal Building, unless otherwise stated.

    • September 11, 2015; 9:00 a.m.-5:00 p.m.; Engineering Analysis from the 2014 final rule. 79 FR 32049 (June 3, 2014). • September 30, 2015; 9:00 a.m.-5:00 p.m. • October 1, 2015; 8:00 a.m.-3:30 p.m. • October 15, 2015; 9:00 a.m.-5:00 p.m. • October 16, 2015; 8:00 a.m.-3:30 p.m. • November 3, 2015; 9:00 a.m.-5:00 p.m. • November 4, 2015; 8:00 a.m.-3:30 p.m. • November 20, 2015; 9:00 a.m.-5:00 p.m. • December 3, 2015; 9:00 a.m.-5:00 p.m. • December 4, 2015; 8:00 a.m.-3:30 p.m. • December 14, 2015; 9:00 a.m.-5:00 p.m. • December 15, 2015; 8:00 a.m.-3:30 p.m.

    The content of the public meetings will be limited to the items specified below:

    • Proposed energy conservation standards for the two walk-in cooler and freezer equipment classes applicable to multiplex condensing refrigeration systems operating at medium and low temperatures and the four walk-in cooler and freezer equipment classes applicable to dedicated condensing refrigeration systems operating at low temperatures. See 10 CFR 431.306(e); and

    • As part of the analysis considered underlying the proposed energy conservation standards mentioned, DOE will consider any comments (including any accompanying data) regarding the potential impacts of these six proposed standards on installers.

    Meeting Address

    U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, Room 8E-089. Individuals will also have the opportunity to participate by webinar. To register for the webinar and receive call-in information, please register https://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/30.

    Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email [email protected] . In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed. Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

    Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes have been made regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.

    DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.

    Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.

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

    Issued in Washington, DC, on September 3, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2015-22841 Filed 9-9-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket Number EERE-2014-BT-STD-0048] RIN 1904-AD37 Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Central Air Conditioners and Heat Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards AGENCY:

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

    ACTION:

    Notice of public meetings.

    SUMMARY:

    The U.S. Department of Energy (DOE) announces public meetings and webinars for the Central Air Conditioners and Heat Pumps Working Group. The Federal Advisory Committee Act requires that agencies publish notice of an advisory committee meeting in the Federal Register.

    DATES:

    See SUPPLEMENTARY INFORMATION section for meeting dates.

    ADDRESSES:

    The meetings will be held at U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585 unless otherwise stated.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Tony Bouza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-4653. Email: [email protected]

    Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9496. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    DOE will host public meetings and webinars on the below dates from 9:00 a.m. to 5:00 p.m. Meetings will be hosted at DOE's Forrestal Building, Room 8E-089, unless otherwise stated.

    • September 10, 2015 at AHRI, 2111 Wilson Blvd. #500, Arlington, VA 22201 • September 28-29, 2015; September 29 will be at 950 L'Enfant Plaza, 8th Floor SW., Washington, DC. • October 13-14, 2015 • October 26-27, 2015 • November 18-19, 2015 • December 1-2, 2015 • December 16-17, 2015

    The purpose of the September 10, 2015 meeting will be to discuss the content included in the proposed 10 CFR part 430, subpart B, App M1 and can be viewed here: http://energy.gov/eere/buildings/downloads/issuance-2015-08-21-energy-conservation-program-test-procedures-central-a-0.

    Meeting Address

    U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, Room 8E-089. Individuals will also have the opportunity to participate by webinar. To register for the webinar and receive call-in information, please register https://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/72.

    Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email [email protected] . In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed. Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

    Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes have been made regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.

    DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.

    Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.

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

    Issued in Washington, DC, on September 3, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2015-22840 Filed 9-9-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2015-2776; Airspace Docket No. 15-AEA-5] RIN 2120-AA66 Proposed Amendment and Establishment of Restricted Areas; Chincoteague Inlet, VA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to expand the restricted airspace at Chincoteague Inlet, VA, to support the National Aeronautics and Space Administration's (NASA) Wallops Island Flight Facility requirements. The proposed expansion would add 3 new restricted areas, designated R-6604C, R-6604D, and R-6604E. Additionally, a minor change would be made to 2 points in the boundary of existing area R-6604A to match the updated 3 nautical mile (NM) line from the shoreline of the United States (U.S.) as provided by the National Oceanic and Atmospheric Administration (NOAA).

    DATES:

    Comments must be received on or before October 26, 2015.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; telephone: (202) 366-9826. You must identify FAA Docket No. FAA-2015-2776 and Airspace Docket No. 15-AEA-5, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. Comments on environmental and land use aspects to should be directed to: NASA Wallops Flight Facility, Attn: Ms. Shari Silbert, Wallops Island, VA 23337; telephone: 757-824-2327.

    FOR FURTHER INFORMATION CONTACT:

    Paul Gallant, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitile VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish restricted airspace at Wallops Island, VA, to contain activities deemed hazardous to nonparticipating aircraft.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2015-2776 and Airspace Docket No. 15-AEA-5) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

    Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2015-2776 and Airspace Docket No. 15-AEA-5.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov.

    You may review the public docket containing the proposal, any comments received and any final disposition in person at the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337.

    Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

    The Proposal

    The FAA is proposing an amendment to 14 CFR part 73 to establish three new restricted areas, designated R-6604C, R-6604D and R-6604E, at the NASA Wallops Island Flight Facility in Virginia. The new areas would abut the existing restricted areas (R-6604A and R-6604B) and be used to contain a wide variety of test activities deemed to pose a hazard to nonparticipating aircraft. These activities include, but are not limited to, high-risk test profiles by heavily modified test aircraft, testing of emitters that could induce harmful electromagnetic interference effects on nonparticipating aircraft, non-eye-safe laser firings, and external stores separation testing. The following is a general description of the proposed areas.

    R-6604C would overlie the Wallops Flight Facility airfield and would be contained entirely within the Wallops Flight Facility property boundary. It would extend from the surface up to 3,500 feet mean sea level (MSL).

    R-6604D would extend from 100 feet above ground level (AGL) up to 3,500 feet MSL. It would be located between the western boundary of R-6604B and VOR Federal airway V-139 and would also extend approximately 15 NM to the northeast of the R-6604A/R-6604B northern boundary.

    R-6604E would extend from 700 feet AGL up to 3,500 feet MSL. It would be located between the western boundaries of R-6604A and R-6604B and VOR Federal airway V-139.

    All 3 of the proposed new areas would be activated by the issuance of a Notice to Airmen (NOTAM). Specific times of designation were not proposed for R-6604C, D and E due to the variable nature of test programs.

    In addition to the above, 2 points in the boundary of R-6604A that intersect a line 3 NM from the shoreline of the U.S. shoreline would be adjusted to reflect NOAA's updated calculation of the U.S. shoreline.

    The configuration of the proposed restricted areas was designed to allow for activation of only that portion of the complex required for the specific test profile being conducted. As is the current practice with R-6604A and R-6604B, when the proposed restricted areas are not required by the using agency, the airspace would be returned to the controlling agency for access by other aviation users.

    Note that the existing areas (R-6604A and R-6604B) will continue to be used, as in the past, for missile and rocket launches, aircraft systems development, expendable launch vehicles, lasers, RPV, and other test programs.

    Color charts showing the location of the proposed restricted areas will be posted on the internet at http://www.regulations.gov. Search docket no. FAA-2015-2776 to view the charts.

    Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal.

    Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 73

    Airspace, Prohibited areas, Restricted areas.

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:

    PART 73—SPECIAL USE AIRSPACE 1. The authority citation for part 73 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 73.66 [Amended]
    2. Section 73.66 is amended as follows: R-6604A Chincoteague Inlet, VA [Amended]

    By removing the current boundaries and inserting the following in its place:

    Boundaries. Beginning at lat. 37°55′25″ N., long. 75°24′54″ W.; to lat. 37°51′31″ N., long. 75°17′16″ W.; then along a line 3 NM from and parallel to the shoreline to lat. 37°39′20″ N., long. 75°31′19″ W.; to lat. 37°47′00″ N., long. 75°31′18″ W.; to lat. 37°51′00″ N., long. 75°29′36″ W.; to the point of beginning.

    R-6604C Chincoteague Inlet, VA [New]

    Boundaries. Beginning at lat. 37°56′57″ N., long. 75°28′37″ W.; to lat. 37°56′54″ N., long. 75°26′56″ W.; to lat. 37°56′ 23″ N., long. 75°26′ 46″ W.; to lat. 37°56′ 45″ N., long. 75°27′29″ W.; to lat. 37°55′15″ N., long. 75°28′23″ W.; to lat. 37°55′15″ N., long. 75°28′39″ W.; to lat. 37°56′32″ N., long. 75°29′18″ W.; to the point of beginning.

    Designated altitudes. Surface to 3,500 feet MSL.

    Time of designation. By NOTAM.

    Controlling agency. U.S. Navy, Patuxent River Radar Approach Control.

    Using agency. Chief, Wallops Station, National Aeronautics and Space Administration, Wallops Island, VA.

    R-6604D Chincoteague Inlet, VA [New]

    Boundaries. Beginning at lat. 38°01′42″ N., long. 75°29′28″ W.; to lat. 38°07′12″ N., long. 75°14′48″ W.; to lat. 38°04′36″ N., long. 75°08′07″ W.; thence 3 NM from and parallel to the shoreline to lat. 37°51′31″ N., long. 75°17′16″ W.; to lat. 37°56′45″ N., long. 75°27′29″ W.; to lat. 37°53′55″ N., long. 75°29′11″ W.; to lat. 37°55′40″ N., long. 75°33′27″ W.; to the point of beginning; excluding R-6604C.

    Designated altitudes. 100 feet AGL to 3,500 feet MSL.

    Time of designation. By NOTAM.

    Controlling agency. U.S. Navy, Patuxent River Radar Approach Control.

    Using agency. Chief, Wallops Station, National Aeronautics and Space Administration, Wallops Island, VA.

    R-6604E Chincoteague Inlet, VA [New]

    Boundaries. Beginning at lat. 37°55′40″ N., long. 75°33′27″ W.; to lat. 37°53′55″ N., long. 75°29′11″ W.; to lat. 37°50′24″ N., long. 75°31′19″ W.; to lat. 37°39′20″ N., long. 75°31′19″ W.; to lat. 37°38′57″ N., long. 75°31′31″ W.; to lat. 37°46′55″ N., long. 75°39′13″ W.; to the point of beginning.

    Designated altitudes. 700 feet AGL to 3,500 feet MSL.

    Time of designation. By NOTAM.

    Controlling agency. U.S. Navy, Patuxent River Radar Approach Control.

    Using agency. Chief, Wallops Station, National Aeronautics and Space Administration, Wallops Island, VA.

    Issued in Washington, DC on September 1, 2015. Gary A. Norek, Manager, Airspace Policy and Regulations Group.
    [FR Doc. 2015-22827 Filed 9-9-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 [Docket No. FDA-2012-N-1210] RIN 0910-AF22 Food Labeling: Revision of the Nutrition and Supplement Facts Labels; Administrative Docket Update; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Proposed rule; notification.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is announcing the availability of certain documents to update the administrative docket of the proposed rule to amend FDA's labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the Nutrition Facts and Supplement Facts labels to assist consumers in maintaining healthy dietary practices.

    DATES:

    We are extending the comment period that was scheduled to close on September 25, 2015, until October 13, 2015.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Electronic Submissions

    Submit electronic comments in the following way:

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

    Written Submissions

    Submit written submissions in the following ways:

    Mail/Hand delivery/Courier (for paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Instructions: All submissions received must include the Docket No. (FDA-2012-N-1210) for this rulemaking. All comments received may be posted without change to http://www.regulations.gov, including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and insert the docket number(s), found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Serena Lo, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2488, email: [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    In the Federal Register of March 3, 2014 (79 FR 11879), we published a proposed rule that would amend our labeling regulations for conventional foods and dietary supplements to provide updated nutrition information. More recently, in the Federal Register of July 27, 2015 (80 FR 44302), we reopened the comment period through September 25, 2015, for the proposed rule for the sole purpose of inviting public comments on two consumer studies being added to the administrative record. The consumer studies pertained to proposed changes to the Nutrition Facts label formats. We also issued a supplemental proposed rule (80 FR 44303) with a comment period through October 13, 2015. The supplemental proposal included two additional consumer studies pertaining to the declaration of added sugars and alternative footnote statements. We proposed text for the footnotes to be used on the Nutrition Facts label, after completing our consumer research in which we tested various footnote text options for the label, and to establish a Daily Reference Value of 10 percent of total energy intake from added sugars. The supplemental proposal also would require the declaration of the percent Daily Value for added sugars on the label and provide an additional rationale for the declaration of added sugars on the label. We explained that we were taking these actions based, in part, on the science underlying a new report released by the 2015 Dietary Guidelines Advisory Committee.

    We have received some comments suggesting we are not eliciting comment on the consumer studies in the supplemental proposal published in July 2015. We clarify in this notice that: (1) The consumer studies on the added sugars declaration and the alternative footnote statements in the supplemental proposal relate to topics on which we sought comment and (2) the consumer studies on the format published in a separate notice in July 2015 were included for comment, and were placed in the docket at that time. We are now responding to additional requests for the raw data for each of these consumer studies that are relevant to the summary memoranda for the studies, also now available for comment.

    II. Updated Information

    We are updating the docket for the rulemaking with two additional documents: A request from the Grocery Manufacturers Association for the raw data associated with the four consumer studies described in this document, and our response to that request indicating that we will provide the raw data underlying the four consumer studies to anyone who submits a request to [email protected]

    These documents may be seen by interested persons at the Division of Dockets Management, Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday, and are available electronically at http://www.regulations.gov.

    In addition, we are extending to October 13, 2015, the comment period on the two consumer studies pertaining to proposed changes to the Nutrition Facts label formats, which had been scheduled to close on September 25, 2015, to align the comment periods for all consumer studies.

    We will continue to take comment on the supplemental proposed rule, including taking comment on the consumer studies on added sugars and the footnote, until October 13, 2015.

    Dated: September 3, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-22757 Filed 9-9-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 28 [REG-112997-10] RIN 1545-BJ43 Guidance Under Section 2801 Regarding the Imposition of Tax on Certain Gifts and Bequests From Covered Expatriates AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking and notice of public hearing.

    SUMMARY:

    This document contains proposed regulations relating to a tax on United States citizens and residents who receive gifts or bequests from certain individuals who relinquished United States citizenship or ceased to be lawful permanent residents of the United States on or after June 17, 2008. These proposed regulations affect taxpayers who receive covered gifts or covered bequests on or after the date these regulations are published as final regulations in the Federal Register. This document also provides notice of a public hearing on these proposed regulations.

    DATES:

    Written or electronic comments must be received by December 9, 2015. Requests to speak and outlines of topics to be discussed at the public hearing scheduled for January 6, 2016, at 10 a.m., must be received by December 9, 2015.

    ADDRESSES:

    Send submissions to CC:PA:LPD:PR (REG-112997-10), Room 5205, Internal Revenue Service, PO 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-112997-10), 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-112997-10). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Karlene Lesho or Leslie Finlow at (202) 317-6859; concerning the submission of comments, the public hearing, or to be placed on the building access list to attend the hearing, Oluwafunmilayo Taylor at (202) 317-6901 (not toll-free numbers) or email at [email protected]

    SUPPLEMENTARY INFORMATION: Paperwork Reduction Act

    The collections of information contained in this notice of proposed rulemaking have 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)). 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, and to Clearance Officer, SE:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by November 9, 2015. Comments are specifically requested concerning:

    Whether the proposed collections of information are necessary for the proper performance of IRS functions, including whether the information will have practical utility;

    The accuracy of the estimated burden associated with the proposed collections 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 of operation, maintenance, and purchase of services to provide information.

    The collections of information in these proposed regulations are in §§ 28.2801-4(e), 28.2801-5(d), 28.6001-1, and 28.6011-1. The collection of information requirement in proposed regulation § 28.2801-4(e) is required in order for the IRS to verify that the U.S. person who received a covered gift or covered bequest is entitled to a reduction in the section 2801 tax for certain foreign taxes paid on the transfer and, if so, the amount of such reduction. The collection of information is mandatory to obtain a benefit. The likely respondents are individuals, domestic trusts, and foreign trusts electing to be treated as domestic trusts.

    The collection of information in § 28.2801-5(d) is required to notify the IRS and the U.S. persons who are beneficiaries of a foreign trust that the trust is electing to be treated as a domestic trust for purposes of section 2801. It is also required for the IRS to verify the proper amount of section 2801 tax due and to notify the beneficiaries who are U.S. citizens or residents in the event the election terminates. This alerts the IRS and the U.S. citizens and residents who are beneficiaries that the trust will be liable for payment of the section 2801 tax while the election is in effect, but that the U.S. beneficiaries will be liable for the tax if and when the election terminates. This collection of information is necessary for the proper performance of IRS functions in the collection of the section 2801 tax. This collection of information is mandatory to obtain a benefit. The likely respondents are the trustees of foreign trusts.

    The collection of information in § 28.6001-1 is required for the IRS to verify the books and records pertaining to covered gifts and covered bequests and for the proper performance of IRS functions in the collection of the section 2801 tax. It is also required to verify the receipt of covered gifts and covered bequests by U.S. persons and the value of such gifts and bequests. This collection of information is mandatory. The likely respondents are individuals and trustees of trusts.

    The collection of information in § 28.6011-1 is required for the IRS to verify the receipt of a covered gift or covered bequest and other information relevant to the tax imposed under section 2801. This collection of information is necessary for the proper performance of IRS functions in the collection of the section 2801 tax. This collection of information is mandatory. The likely respondents are individuals and trustees of trusts.

    Estimated total annual reporting burden: 7,000 hours.

    Estimated average annual burden hours per respondent: 1 hour to prepare and attach documentation to Form 708, “U.S. Return of Gifts or Bequests from Covered Expatriates,” for the reduction of tax for foreign taxes paid; 2 hours for a trustee of an electing foreign trust to make the election and notify the beneficiaries; 1 hour for the trustee of the foreign trust to prepare annual certifications; 1 hour to notify the U.S. persons who are beneficiaries of the trust that the election is terminated; and, 2 hours to prepare taxpayer records and the Form 708 to report the section 2801 tax.

    Estimated number of respondents: 1,000.

    Estimated annual frequency of responses: Annually or less.

    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 301 of the Heroes Earnings Assistance and Relief Tax Act of 2008, Public Law 110-245 (122 Stat. 1624) (the HEART Act), added new section 877A to subtitle A of the Internal Revenue Code (Code), and new chapter 15 and new section 2801 to subtitle B, effective June 17, 2008. Prior to the addition of chapter 15, subtitle B contained chapters 11 through 14 relating to the estate tax, the gift tax, the generation-skipping transfer tax, and special valuation rules for purposes of subtitle B. New chapter 15 consists solely of section 2801.

    Prior to the enactment of the HEART Act, citizens and long-term residents of the United States who expatriated to avoid U.S. taxes were subject to an alternative regime of U.S. income, estate, and gift taxes under sections 877, 2107, and 2501, respectively, for a period of 10 years following expatriation. Recognizing that citizens and residents of the United States generally are subject to estate tax on their world-wide assets at the time of death, Congress determined that it was appropriate, in the interests of tax equity, to impose a tax on U.S. citizens or residents who receive, from an expatriate, a transfer that would otherwise have escaped U.S. estate and/or gift taxes as a consequence of expatriation.

    In an explanation of an earlier bill also proposing enactment of new chapter 15 and section 2801, the Report of the House Ways and Means Committee states that citizens and long-term residents of the United States have a right to physically leave the United States and relinquish their citizenship or terminate their residency. See H.R. Rep. No. 110-431 (2007). The Report states that the Committee believed that the Code should not be used to discourage individuals from relinquishing citizenship or terminating residency. At the same time, however, the Report states that the Code should not reward individuals who leave the United States. The Report concludes that an individual's decision to relinquish citizenship or terminate long-term residency should not affect the total amount of taxes imposed (that is, it should be “tax neutral”). The Report further states that, where U.S. estate or gift taxes are avoided with respect to a transfer of property to a U.S. person by reason of the expatriation of the donor, it is appropriate for the recipient to be subject to a tax similar to the donor's avoided transfer taxes.

    With the enactment of sections 877A and 2801, sections 877 and 2107 apply only to individuals who relinquished United States citizenship or ceased to be lawful permanent residents prior to June 17, 2008. Section 2501 generally continues to apply to any individual, resident or nonresident, including individuals who expatriate, whether or not on or after June 17, 2008. Section 2501(a)(3) and (a)(5), however, provides special rules for expatriates subject to section 877(b), which are not applicable to individuals who expatriate on or after June 17, 2008.

    Section 2801 imposes a tax (section 2801 tax) on covered gifts and covered bequests received by a citizen or resident of the United States (U.S. citizen or resident) from a covered expatriate. The section 2801 tax applies with regard to any property transferred to a U.S. citizen or resident which qualifies as a covered gift or covered bequest under section 2801, regardless of whether the property transferred was acquired by the donor or decedent covered expatriate before or after expatriation.

    The value of a covered gift or covered bequest is its fair market value at the time the gift or bequest is received by the U.S. citizen or resident. A U.S. citizen or resident receiving a covered gift or covered bequest (U.S. recipient) is liable for payment of the section 2801 tax imposed under this chapter. A domestic trust that receives a covered gift or covered bequest is treated as a U.S. citizen and therefore is liable for payment of the section 2801 tax. A foreign trust may elect to be treated as a domestic trust (an electing foreign trust) for this purpose; absent this election, the trust's U.S. citizen or resident beneficiaries will be taxed as distributions are made from the trust (a non-electing foreign trust).

    On July 20, 2009, the Treasury Department and the IRS issued Announcement 2009-57, 2009-29 I.R.B. 158. Announcement 2009-57 put taxpayers on notice that any covered gift or covered bequest received on or after June 17, 2008, is subject to the imposition of the section 2801 tax. Announcement 2009-57 states that the IRS intends to issue guidance under section 2801 and that the due date for reporting, filing, and payment of the tax imposed under section 2801 will be included in the guidance. The announcement further provides that the guidance the IRS intends to issue will provide a reasonable period of time between the date of issuance of the guidance and the date prescribed for the filing of the return and the payment of the tax.

    On October 15, 2009, the Treasury Department and the IRS released Notice 2009-85, 2009-45 I.R.B. 598. Notice 2009-85 generally provides guidance for individuals who are subject to section 877A (added to the Code together with section 2801). With respect to gifts and bequests, section 9 of Notice 2009-85 provides that gifts or bequests from a covered expatriate on or after June 17, 2008, are subject to a transfer tax under new section 2801. Section 9 of Notice 2009-85 further provides that satisfaction of the reporting and tax obligations under section 2801 for covered gifts or covered bequests received on or after June 17, 2008, is deferred pending the issuance of separate guidance by the IRS.

    Explanation of Provisions

    The proposed regulations amend title 26 of the Code of Federal Regulations by adding part 28 (Imposition of Tax on Gifts and Bequests from Covered Expatriates) under new section 2801 of the Code. The proposed regulations are divided into seven sections.

    Section 28.2801-1 of the proposed regulations sets forth the general rules of liability for the tax imposed by section 2801(a). Section 2801 imposes a tax on United States citizens or residents who receive, directly or indirectly, covered gifts or covered bequests (including distributions from foreign trusts attributable to covered gifts and covered bequests) from a covered expatriate. For purposes of section 2801, domestic trusts and foreign trusts electing to be treated as domestic trusts are treated in the same manner as U.S. citizens.

    Definitions

    Section 28.2801-2 of the proposed regulations defines terms for purposes of new chapter 15. The proposed regulations define the term “citizen or resident of the United States” as an individual who is a citizen or resident of the United States under the estate and gift tax rules of chapter 11 and chapter 12, respectively, in subtitle B of the Code. Accordingly, whether an individual is a “resident” is based on domicile in the United States, notwithstanding that section 877A adopts the income tax definition of that term. The Treasury Department and the IRS believe that, because section 2801 imposes a tax subject to subtitle B, the tax definition of resident under subtitle B generally should apply for purposes of section 2801. See §§ 20.0-1(b)(1) and 25.2501-1(b).

    The proposed regulations generally define the term “covered gift” by reference to the definition of gift for purposes of chapter 12 of subtitle B. The proposed regulations define the term “covered bequest” as any property acquired directly or indirectly because of the death of a covered expatriate. Such property generally is property that would have been includible in the gross estate of the covered expatriate under chapter 11 of subtitle B, had the covered expatriate been a U.S. citizen or resident at the time of death.

    Section 2801 defines “covered expatriate” by reference to the section 877A(g)(1) definition of that term. Section 877A(g)(1) generally provides that an individual who expatriates on or after June 17, 2008, is a covered expatriate if, on the expatriation date, (1) the individual's average annual net income tax liability is greater than $124,000 (indexed for inflation) for the previous five taxable years, (2) the individual's net worth is at least $2,000,000 (not indexed), or (3) the individual fails to certify under penalty of perjury that he or she has complied with all U.S. tax obligations for the five preceding taxable years. See section 877A(g)(1); Notice 2009-85, 2009-45 I.R.B. 598. The proposed regulations provide that, if an expatriate meets the definition of a covered expatriate, the expatriate is considered a covered expatriate for purposes of section 2801 at all times after the expatriation date, except during any period beginning after the expatriation date during which such individual is subject to United States estate or gift tax as a U.S. citizen or resident.

    Additionally, the proposed regulations define for purposes of section 2801 the terms “domestic trust,” “foreign trust,” “electing foreign trust,” “U.S. recipient,” “power of appointment,” and “indirect acquisition of property.”

    Rules and Exceptions Applicable to Covered Gifts and Covered Bequests

    Section 28.2801-3 addresses the rules in section 2801(e) and includes rules and several exceptions applicable to the definitions of covered gift and covered bequest. Exceptions include taxable gifts reported on a covered expatriate's timely filed gift tax return, and property included in the covered expatriate's gross estate and reported on such expatriate's timely filed estate tax return, provided that the gift or estate tax due is timely paid. Qualified disclaimers of property made by a covered expatriate are excepted from the definitions of a covered gift and covered bequest. In addition, charitable donations that would qualify for the estate or gift tax charitable deduction are excepted from the terms “covered gift” and “covered bequest.”

    Section 28.2801-3(c)(4) provides that a gift or bequest to a covered expatriate's U.S. citizen spouse is excepted from the terms “covered gift” and “covered bequest” if the gift or bequest, if given by a U.S. citizen or resident, would qualify for the gift or estate tax marital deduction. In the case of a gift or bequest in trust, this means that, to the extent the gift or bequest to the trust (or to a separate share of the trust) would qualify for the estate or gift tax marital deduction, the gift or bequest is not a covered gift or covered bequest. A gift or bequest of a partial or terminable interest in property that a covered expatriate makes to his or her spouse is excepted from the definitions of a covered gift and covered bequest only to the extent that such gift or bequest is qualified terminable interest property (QTIP), as defined in section 2523(f) or section 2056(b)(7), and a valid QTIP election is made. To the extent a covered gift or covered bequest is made to a non-electing foreign trust (or to a separate share of such a trust), a distribution from the trust (or from the separate share of the trust) to the U.S. citizen spouse of the covered expatriate who funded the trust (whether in whole or in part) will not qualify for the exception. Note that gifts and bequests made by a covered expatriate to his or her noncitizen spouse are subject to an annual limit under section 2523(i). Furthermore, a bequest from a covered expatriate to his or her noncitizen surviving spouse who is a U.S. resident is not a covered bequest to the extent the bequest is made to a qualified domestic trust (QDOT) that satisfies the requirements of section 2056A and the corresponding regulations, and for which a valid QDOT election is made.

    Section 28.2801-3(d) provides rules to implement section 2801(e)(4) regarding covered gifts and covered bequests made in trust, including transfers of property in trust that are subject to a general power of appointment granted by the covered expatriate. In identifying the recipient of such covered gifts and covered bequests made in trust, the proposed regulations do not adopt the gift tax rule of treating the trust beneficiary or holder of an immediate right to withdraw the property as the recipient of that property. Instead, for purposes of section 2801, the proposed regulations treat transfers in trust that constitute covered gifts and covered bequests as transfers to the trust, to be taxed under the rules in section 2801(e)(4). Specifically, the proposed regulations provide that, if a covered expatriate makes a transfer in trust and such transfer is a covered gift or covered bequest, the transfer is treated as a covered gift or covered bequest to the trust, without regard to the beneficial interests in the trust or whether any person has a general power of appointment or a power of withdrawal over trust property. Under section 2801(e)(4), the transfer to the trust will be taxed either to the trust receiving the covered gift or covered bequest, in the case of a domestic trust or electing foreign trust, or to the U.S. beneficiaries or distributees of a non-electing foreign trust as trust distributions are made.

    Section 28.2801-3(e) provides two rules addressing covered gifts and covered bequests arising from powers of appointment. First, consistent with the rules in chapters 11 and 12, the proposed regulations confirm that the exercise, release, or lapse of a covered expatriate's general power of appointment for the benefit of a U.S. citizen or resident is a covered gift or covered bequest. Second, the proposed regulations provide that a covered expatriate's grant of a general power of appointment over property not held in trust is a covered gift or covered bequest to the powerholder as soon as both the power is exercisable and the transfer of the property subject to the power is irrevocable. See also § 28.2801-4(d)(5)(ii). The preceding sentence applies only for purposes of section 2801, and should not be interpreted as having any impact on the determination of whether the grant of a general power of appointment over property not in trust is a completed gift for Federal gift tax purposes, which is a question to be resolved under chapter 12 without regard to this provision.

    Liability for Section 2801 Tax

    Section 28.2801-4 provides specific rules regarding who is liable for the payment of the section 2801 tax. Generally, the U.S. citizen or resident who receives the covered gift or covered bequest is liable. Similarly, the proposed regulations provide rules explaining that a domestic trust that receives a covered gift or covered bequest is treated as a U.S. citizen and thus is liable for payment of the section 2801 tax imposed under this section. An electing foreign trust also is treated as a U.S. citizen. See §§ 28.2801-2(b) and 28.2801-5(d). However, a non-electing foreign trust is not liable for the section 2801 tax. Instead, a U.S. citizen or resident who receives a distribution from a non-electing foreign trust is liable for the section 2801 tax on the receipt of that distribution to the extent the distribution is attributable to covered gifts or covered bequests to that trust. Under section 2801(e)(4)(B)(ii), that U.S. citizen or resident may be entitled to a limited deduction under section 164 against income tax for the section 2801 tax paid on the distribution. The deduction is limited to the extent that the section 2801 tax is imposed on that portion of the distribution that is reported in the gross income of the U.S. citizen or resident. Section 28.2801-4(a)(3)(ii) of the proposed regulations describes how to compute that deduction.

    Section 28.2801-4(a)(2)(ii) of the proposed regulations provides that, in the case of a domestic trust or an electing foreign trust, the trust's payment of the section 2801 tax for which the trust is liable does not result in a taxable distribution under section 2621 of the Code to any beneficiary of the trust for generation-skipping transfer (GST) tax purposes. This provision is consistent with the GST tax consequences of a trust's payment of tax, which differ depending upon whether the trust or the trust beneficiary is liable for the tax being paid.

    Section 28.2801-4(a)(2)(iv) provides a special rule for certain non-electing foreign trusts that become domestic trusts (migrated foreign trusts). A migrated foreign trust will be treated solely for purposes of section 2801 as a domestic trust for the entire year during which the change from foreign trust to domestic trust occurred. The trust must file a timely Form 708 for the year in which the trust becomes a domestic trust and must report and pay the section 2801 tax on all covered gifts and covered bequests received by the trust during the year it becomes a domestic trust as well as on the portion of the trust's value attributable to any covered gifts and covered bequests received by the trust prior to the year in which it becomes a domestic trust determined as of December 31 of the year prior to the year it becomes a domestic trust.

    Charitable Remainder Trusts

    Section 28.2801-4(a)(2)(iii) of the proposed regulations provides rules for charitable remainder trusts (CRTs), as defined in section 664, contributions to which are made by covered expatriates for the benefit of one or more charitable organizations described in section 170(c) and a U.S. citizen or resident other than such a charitable organization (non-charitable U.S. citizen or resident). Section 2801(e)(3) indicates that the value of the charitable organization's remainder interest in a CRT is excluded from the definition of a covered gift or covered bequest. The value of the interest of the non-charitable U.S. citizen or resident in such contributions to the CRT is a covered gift or covered bequest, unless otherwise excluded.

    Under section 664, a CRT must be a domestic trust. Accordingly, when a covered expatriate contributes a covered gift or covered bequest to a CRT, the CRT is liable for the payment of the section 2801 tax attributable to the value of the non-charitable U.S. person's interest in the trust. Section 664(d)(1)(B) and (d)(2)(B) and § 1.664-3(a)(4) of the Income Tax Regulations provide that no amount other than the annuity or unitrust amount may be paid “to or for the use of any person other than an organization described under section 170(c).” This rule has been applied in Revenue Ruling 82-128 (1982-2 CB 71) to disqualify a trust as a CRT if the trust could be required to pay estate taxes by reason of the applicable state apportionment statute. Thus, if the CRT's liability for payment of section 2801 tax attributable to the non-charitable recipient's interest in the CRT were to be deemed comparable to the CRT's liability for payment of estate tax, the CRT would not qualify as a CRT under section 664.

    A CRT's liability for payment of the section 2801 tax is distinguishable from a CRT's liability for payment of estate tax because the section 2801 tax is imposed expressly on the CRT under a federal tax statute, section 2801(e)(4)(A). In addition, the section 2801 tax is imposed on the CRT as a primary obligation of the CRT, rather than an obligation imposed on the CRT for the payment of a liability belonging to or attributable to another taxpayer. Accordingly, a CRT's payment of the section 2801 tax on the portion of each transfer to the CRT that is a covered gift or covered bequest is not a distribution to or for the use of any person within the meaning of section 664(d)(1)(B) and (d)(2)(B), and the CRT's liability for such a payment will not cause the trust to be disqualified as a CRT defined in section 664. The proposed regulations confirm that the charitable remainder interest's share of each transfer to the CRT is not a covered gift or covered bequest and provide the method for computing the net covered gifts and covered bequests that are taxable to the CRT under section 2801.

    Computation of Section 2801 Tax

    Section 28.2801-4 of the proposed regulations also provides guidance on how to compute the section 2801 tax. Generally, the section 2801 tax is determined by reducing the total amount of covered gifts and covered bequests received during the calendar year by the section 2801(c) amount, which is the dollar amount of the per-donee exclusion in effect under section 2503(b) for that calendar year ($14,000 in 2015), and then multiplying the net amount by the highest estate or gift tax rate in effect during that calendar year. The reference to section 2503(b) in section 2801 is included solely to provide a dollar amount by which to decrease the U.S. recipient's aggregate covered gifts and covered bequests received during that calendar year to determine the amount subject to the section 2801 tax; section 2801 does not incorporate the substantive rule of section 2503(b) that applies to donors of gifts under chapter 12. The resulting tax then is reduced by any estate or gift tax paid to a foreign country with regard to those transfers. See § 28.2801-4(e).

    Value of a Covered Gift or Covered Bequest

    The value of a covered gift or covered bequest is the fair market value of the property on the date of its receipt by the U.S. citizen or resident. Section 28.2801-4(c) provides that the value of a covered gift is determined by applying the federal gift tax valuation principles under section 2512 and chapter 14 and the corresponding regulations. Similarly, the value of a covered bequest is determined by applying the federal estate tax valuation principles under section 2031 and chapter 14 and the corresponding regulations, but without regard to sections 2032 and 2032A.

    Date of Receipt

    The proposed regulations identify the date of the receipt of a covered gift or covered bequest by a U.S. citizen or resident. See § 28.2801-4(d). In general, a covered gift is received on the same date it is given for purposes of chapter 12. In general, a covered bequest is received on the date the property is distributed from the estate or the covered expatriate's revocable trust. However, in the case of property that passes by operation of law or beneficiary designation upon the covered expatriate's death, the date of receipt is the date of death. The proposed regulations provide more detail with regard to the determination of the date of receipt of covered gifts and covered bequests received from a non-electing foreign trust, those received pursuant to powers of appointment, and those received indirectly.

    Foreign Trusts

    Section 28.2801-5 of the proposed regulations provides guidance on the treatment of foreign trusts under section 2801. If a covered gift or covered bequest is made to a foreign trust, the section 2801 tax applies to any distribution from that trust, whether of income or corpus, to a recipient that is a U.S. citizen or resident, unless the foreign trust elects to be treated as a domestic trust for purposes of section 2801. The proposed regulations define the term “distribution” broadly to include any direct, indirect, or constructive transfer from a foreign trust, including each disbursement from such a trust pursuant to the exercise, release, or lapse of a power of appointment.

    Distributions From Foreign Trusts

    The section 2801 tax applies only to the portion of a distribution from a non-electing foreign trust that is attributable to covered gifts and covered bequests contributed to the foreign trust. Section 28.2801-5(c) of the proposed regulations provides that the amount of the distribution attributable to covered gifts and covered bequests is determined by multiplying the total distribution by a ratio, as in effect at the time of the distribution, that is redetermined after each contribution to the trust. The proposed regulations explain how to compute that ratio and provide that each distribution from the foreign trust is considered to be made proportionally from the covered and non-covered portions of the trust, without any tracing with regard to particular assets. One effect of this rule is that the portion of a distribution from a foreign trust that is attributable to covered gifts and covered bequests contributed to the foreign trust includes the ratable portion of any appreciation and income that has accrued on the foreign trust's assets since the contribution of the covered gifts and covered bequests to the foreign trust.

    Election by Foreign Trust To Be Treated as Domestic Trust

    Section 2801(e)(4)(B)(iii) provides that, solely for purposes of section 2801, a foreign trust may elect to be treated as a domestic trust. Consequently, the section 2801 tax is imposed on the electing foreign trust when it receives covered gifts and covered bequests, rather than on the U.S. trust beneficiaries when distributions are made from the trust. The election may be made for a calendar year whether or not the foreign trust received a covered gift or covered bequest during that calendar year. Section 28.2801-5(d)(3) of the proposed regulations provides guidance on the time and manner of making the election. In order for an election to be valid, the trustee of the foreign trust must satisfy several requirements. The trustee must make the election on a timely filed Form 708 and, if tax is due, timely pay the section 2801 tax (as computed under § 28.2801-5(d)(3)(iii)) by the due date of the Form 708 for that year and include a computation of how the applicable ratio and tax liability were calculated. Further, the trustee must designate and authorize a U.S. agent for purposes of section 2801, and must agree to file annually a Form 708 either to certify that no covered gifts or covered bequests were received by the foreign trust during the calendar year, or to report and, if tax is due, pay the section 2801 tax on covered gifts and covered bequests received by the foreign trust during the calendar year. The trustee also must report the portion of the trust attributable to covered gifts and covered bequests and all distributions attributable to covered gifts and covered bequests made to U.S. recipients in years prior to the year of the election. Finally, the trustee must notify the permissible U.S. distributees of the trust that the trustee is making the election to be treated as a domestic trust for purposes of section 2801.

    Under § 28.2801-5(d)(3)(iii), an electing foreign trust that received covered gifts or covered bequests in prior calendar years when the election to be treated as a domestic trust was not in effect also must pay the section 2801 tax liability for all prior calendar years at the time the election is made on Form 708. Such liability is based on the fair market value of the trust attributable to covered gifts and covered bequests as of the last day of the calendar year immediately preceding the year for which the election is made, using the ratio calculated and then in effect under § 28.2801-5(c). If the trustee is unable to determine the portion of the trust attributable to covered gifts and covered bequests, then the fair market value of the entire trust as of the last day of the calendar year immediately preceding the year for which the election is made is subject to the section 2801 tax.

    A valid election to be treated as a domestic trust is effective as of the beginning of the calendar year for which the Form 708 is filed. The effect of a valid election is that, as of such effective date of the election and until the election is terminated, U.S. citizens and residents receiving a distribution from that foreign trust will not be subject to section 2801 tax on that distribution. Instead, the electing foreign trust, like a domestic trust, must report and pay the section 2801 tax on each covered gift and covered bequest as it is received. The election, however, will not change the section 2801 tax liability of the U.S. recipients with regard to distributions made from the trust prior to the effective date of the election. The election has no impact outside of section 2801 on the taxation or reporting of trust distributions to U.S. persons.

    Dispute as to Amount of Section 2801 Tax Owed by Electing Foreign Trust

    If the IRS asserts that additional section 2801 tax is due from the electing foreign trust because, for example, the trust undervalued the covered gift or covered bequest or failed to report all covered gifts and covered bequests, then the IRS will notify the trustee of the foreign trust and the U.S. agent of the additional tax due on the asserted additional value or additional covered gifts or covered bequests, including any penalties and interest, and request payment by the due date identified in the IRS letter. If the trustee of the electing foreign trust and the IRS are unable to come to an agreement and the trustee fails to timely pay the additional tax and other asserted amounts, then the election is deemed to be an “imperfect election.” This means that the election terminates as of the first day of the calendar year for which the IRS asserts that the additional section 2801 tax is due. In this event, the covered gifts and covered bequests for which the return was timely filed, but only to the extent of the value on which the section 2801 tax was timely paid, are no longer considered to be covered gifts or covered bequests for purposes of determining the ratio under § 28.2801-5(c)(1), and distributions relating to such amounts will not be taxable to a U.S. citizen or resident who receives a trust distribution. However, with regard to the asserted additional value or additional covered gifts or covered bequests on which the trust did not timely pay the section 2801 tax asserted by the IRS, the foreign trust is not an electing foreign trust and thus is not the taxpayer responsible for the payment of that additional section 2801 tax. Instead, as of the effective date of the termination of the trust's election, the usual rule of section 2801(e)(4)(B) applies with regard to the taxation of distributions from foreign trusts. Specifically, the U.S. citizens or residents who receive any trust distributions on or after the effective date of the terminated election should take into consideration the additional value or additional covered gifts or covered bequests asserted by the IRS in determining the ratio under § 28.2801-5(c)(1) to be applied to such distributions. If the U.S. recipient does not take the additional value or additional covered gifts or covered bequests asserted by the IRS into consideration in computing that ratio, and the IRS challenges the computation of that ratio during its review of the U.S. recipient's Form 708 reporting the distribution, the IRS's assertion of the additional value or additional covered gifts or covered bequests then will become an issue to be resolved as part of the usual examination process for the U.S. recipient's Form 708. See § 28.2801-5(e), Example 4.

    Termination of Status as Electing Foreign Trust

    An electing foreign trust's failure to file the Form 708 on an annual basis or to timely pay its section 2801 tax terminates that foreign trust's election to be treated as a domestic trust as of the first day of the calendar year for which the certification is not timely made or for which its section 2801 tax is not timely paid. But see § 28.2801-5(d)(6) in the case of a dispute as to the amount of section 2801 tax owed by an electing foreign trust. In the event of the termination of the election, the trustee should notify the permissible U.S. distributees of the effective date of the termination and that each U.S. recipient of a distribution made from the foreign trust on or after that date is subject to the section 2801 tax to the extent the distribution is attributable to covered gifts or covered bequests. After an election is terminated, a foreign trust is not prohibited from making a new election to be treated as a domestic trust by complying with all applicable requirements.

    Other Provisions

    Section 28.2801-6(a) addresses how the basis rules under sections 1014, 1015(a), and 1022 impact the determination of the U.S. recipient's basis in the covered gift or covered bequest. Unlike section 1015(d), which generally allows gift tax paid on the gift to be added to the donee's basis, section 2801 does not provide a similar basis adjustment for the payment of the section 2801 tax.

    Section 28.2801-6(b) clarifies the applicability of the GST tax to certain section 2801 transfers and cross-references the GST rules.

    Section 28.2801-6(c) discusses the interaction of section 2801 and the information reporting provisions of sections 6039F and 6048(c). Generally, pursuant to section 6039F and Notice 97-34, 1997-1 CB 422, a U.S. person (other than an organization described in section 501(c) and exempt from tax under section 501(a)) who receives a gift or bequest (including a covered gift or covered bequest) from a foreign person (other than through a foreign trust) must report such gift or bequest on Part IV of Form 3520, “Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts,” if the total value of such gifts and bequests exceeds a certain threshold. A U.S. citizen or resident, as defined under § 28.2801-2(b) and thus including a domestic trust as defined in § 28.2801-2(c), but not including a foreign trust that elects to be treated as a domestic trust, is included within the definition of a U.S. person for purposes of section 6039F.

    Under section 6039F(c)(1)(A), if a U.S. person fails to furnish all of the information regarding the gift or bequest in accordance with the requirements of Form 3520, and any related guidance, within the time prescribed (in the case of a U.S. citizen or resident, the time for filing the Form 1040, including extensions), then, absent reasonable cause, a monthly penalty of 5 percent of the amount of the gift or bequest (not to exceed 25 percent) may be imposed until such information is furnished. In addition, the tax consequences of the receipt of such gift or bequest may be determined by the Secretary. Taxpayers should be aware that the information reported on Part IV of Form 3520, whether or not timely filed, may be considered in determining whether a U.S. citizen or resident received a covered gift or covered bequest.

    Pursuant to section 6048(c) and Notice 97-34, a U.S. person must report any distributions received from a foreign trust on Part III of Form 3520. Under section 6677(a), a penalty of the greater of $10,000 or 35 percent of the gross value of the distribution may be imposed on a U.S. person who fails to timely report the distribution. A U.S. citizen or resident, as defined in § 28.2801-2(b), but not including a foreign trust that elects to be treated as a domestic trust, generally would be required to report such a distribution under section 6048(c).

    Further, if adequate records are not provided to determine the treatment of such a distribution, to the extent provided in Notice 97-34, as modified by the instructions to Form 3520 and any subsequent guidance, such distribution may be treated as an accumulation distribution includible in the gross income of the distributee. Taxpayers similarly should be aware that information reported on Part III of Form 3520 may be used to determine if a U.S. citizen or resident received a trust distribution attributable to a covered gift or covered bequest.

    Finally, § 28.2801-6(d) addresses the section 6662 accuracy-related penalties on underpayments of tax, the section 6651 failure to file and pay penalties, and the section 6695A penalty on substantial and gross valuation misstatements attributable to incorrect appraisals. The Treasury Department and the IRS recognize that taxpayers have had to defer their tax reporting and payment obligations with respect to covered gifts and covered bequests received after the effective date of section 2801 (as described in Notice 2009-85). Thus, there may be circumstances under which a taxpayer who received a covered gift or covered bequest in a year prior to the issuance of final regulations may have difficulty in complying with the deferred filing and payment requirements with respect to those receipts. A taxpayer who establishes that such failure in this regard is due to reasonable cause and not to willful neglect will not be subject to the section 6651 penalties for failure to file or pay. The determination of whether an exception to the other penalties applies will be made on a case-by-case basis.

    Section 28.2801-7 provides guidance on the responsibility of a U.S. recipient, as defined in § 28.2801-2(e), to determine if tax under section 2801 is due. The Treasury Department and the IRS realize that, because the tax imposed by this section is imposed on the U.S. citizen or resident receiving a covered gift or covered bequest, rather than on the donor or decedent covered expatriate making the gift or bequest, U.S. taxpayers may have difficulty determining whether they are liable for any tax under section 2801. Nevertheless, the same standard of due diligence that applies to any other taxpayer to determine whether the taxpayer has a tax liability or a filing requirement also applies to U.S. citizens and residents under this section. Accordingly, it is the responsibility of each U.S. citizen or resident receiving a gift or bequest, whether directly or indirectly, from an expatriate (as defined in section 877A(g)(2)) to determine its tax obligations under section 2801. Thus, the burden is on that U.S. citizen or resident to determine whether the expatriate was a covered expatriate (as defined in section 877A(g)(1)) and, if so, whether the gift or bequest was a covered gift or covered bequest.

    The Treasury Department and the IRS understand that a U.S. citizen or resident receiving a gift or bequest from an expatriate may be unable to obtain directly from the expatriate, the expatriate's attorney, the expatriate's executor, or other reliable sources the information necessary to make the above determinations. If the IRS receives a request from a U.S. citizen or resident who received a gift from an expatriate who has consented to the disclosure of certain return information to that donee, a gift from an expatriate who is deceased at the time of the request, or a bequest from an expatriate, the IRS may in certain circumstances disclose to such U.S. citizen or resident the return or return information of the donor or decedent expatriate that may assist the U.S. citizen or resident in determining whether the donor or decedent was a covered expatriate and whether the transfer was a covered gift or covered bequest. See section 6103. The types of information and requirements and procedures for requesting such information will be set forth in guidance published in the Internal Revenue Bulletin.

    Although the IRS, if authorized, may disclose returns and return information upon request, the IRS will not make the determinations as to whether an expatriate from whom a gift or bequest was received was a covered expatriate or whether the gift or bequest was a covered gift or covered bequest. Furthermore, the U.S. citizen or resident receiving a gift or bequest from an expatriate may not rely on any information provided by the IRS that the U.S. citizen or resident knows or has reason to know is incorrect. These determinations are the responsibility of the U.S. citizen or resident.

    The proposed regulations provide that, if a living expatriate donor does not authorize the IRS to release to a U.S. citizen or resident the donor's relevant return or return information, there is a rebuttable presumption that the expatriate donor is a covered expatriate and that each gift from that expatriate to a U.S. citizen or resident is a covered gift. A taxpayer who reasonably concludes that a gift or bequest is not subject to section 2801 and intends to rebut the presumption may choose to file a protective return to start the period for assessment of any section 2801 tax. See §§ 28.2801-7(b)(2), 28.6011-1(b).

    Administrative Regulations

    The proposed regulations also include administrative regulations that address filing and payment due dates, returns, extension requests, and recordkeeping requirements with respect to the section 2801 tax. See §§ 28.6001-1, 28.6011-1, 28.6060-1, 28.6071-1, 28.6081-1, 28.6091-1, 28.6101-1, 28.6107-1, 28.6109-1, 28.6151-1, 28.6694-1, 28.6694-2, 28.6694-3, 28.6694-4, 28.6695-1, 28.6696-1, 28.7701-1. Section 28.6011-1(a) provides the return requirements to report the receipt of covered gifts and covered bequests from covered expatriates using Form 708.

    The Treasury Department and IRS will permit the filing of a protective Form 708, unaccompanied by any payment of tax under section 2801, in limited circumstances when a U.S. citizen or resident receives a gift or bequest from an expatriate and reasonably concludes, after exercising due diligence, that the gift or bequest is not a covered gift or covered bequest from a covered expatriate. The mere absence of information confirming that the expatriate is a covered expatriate or that the gift or bequest is a covered gift or covered bequest is not a sufficient basis for a protective return. Section 28.6011-1(b)(i) provides that filing a protective Form 708, together with the required attachments, will start the period for the assessment of any section 2801 tax.

    The IRS intends to issue Form 708 once these regulations are published as final regulations in the Federal Register. The IRS will provide the due date for filing Form 708 and for payment of the section 2801 tax liability in the final regulations. Consistent with Announcement 2009-57, U.S. recipients will be given a reasonable period of time after the date the final regulations are published in the Federal Register to file the Form 708 and to pay the section 2801 tax on covered gifts and covered bequests received on or after June 17, 2008, and before the date of publication of the final regulations in the Federal Register. Interest will not accrue on the section 2801 tax liability for any taxable years until the due date for payment, as specified in the final regulations, has passed.

    Effect on Other Documents

    The following publication will be obsolete when regulations finalizing these proposed regulations are published in the Federal Register:

    Announcement 2009-57, 2009-29 I.R.B. 158.

    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 has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this regulation does not affect small entities because it applies to individuals and certain trusts. Accordingly, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Code, these proposed regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.

    Statement of Availability for Documents Published in the Internal Revenue Bulletin

    For copies of recently issued revenue procedures, revenue rulings, notices, and other guidance published in the Internal Revenue Bulletin or Cumulative Bulletin, please visit the IRS Web site at http://www.irs.gov.

    Drafting Information

    The principal authors of these regulations are Karlene Lesho and Leslie Finlow, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.

    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 IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. In particular, comments are requested with respect to the following issues:

    1. How to calculate the amount of a distribution from a foreign trust that is attributable to a covered gift or covered bequest if the U.S. recipient does not have adequate books and records or information available to make such a determination.

    2. How to minimize the burden associated with a foreign trust making an election to be treated as a domestic trust while adequately securing the government's interest in collecting the tax from the foreign trust.

    3. How contributions to or distributions from a non-electing foreign trust to a U.S. citizen spouse could qualify for the marital exception in section 2801(e)(3), taking into account the rules applicable to domestic trusts and foreign trusts in section 2801(e)(4).

    All comments will be available at www.regulations.gov or upon request.

    A public hearing has been scheduled for January 6, 2016, at 10 a.m. in the IRS Auditorium Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For more information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

    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 electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by December 9, 2015. A period of 10 minutes will be allotted to each person for making comments. Copies of the agenda will be available free of charge at the meeting.

    List of Subjects in 26 CFR Part 28

    Expatriation taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR chapter 1 is proposed to be amended by adding part 28 to subchapter B to read as follows:

    PART 28—IMPOSITION OF TAX ON GIFTS AND BEQUESTS FROM COVERED EXPATRIATES Sec. 28.2801-0 Table of contents. 28.2801-1 Tax on certain gifts and bequests from covered expatriates. 28.2801-2 Definitions. 28.2801-3 Rules and exceptions applicable to covered gifts and covered bequests. 28.2801-4 Liability for and payment of tax on covered gifts and covered bequests; computation of tax. 28.2801-5 Foreign trusts. 28.2801-6 Special rules and cross-references. 28.2801-7 Determining responsibility under section 2801. 28.6001-1 Records required to be kept. 28.6011-1 Returns. 28.6060-1 Reporting requirements for tax return preparers. 28.6071-1 Time for filing returns. 28.6081-1 Automatic extension of time for filing returns reporting gifts and bequests from covered expatriates. 28.6091-1 Place for filing returns. 28.6101-1 Period covered by returns. 28.6107-1 Tax return preparer must furnish copy of return or claim for refund to taxpayer and must retain a copy or record. 28.6109-1 Tax return preparers furnishing identifying numbers for returns or claims for refund. 28.6151-1 Time and place for paying tax shown on returns. 28.6694-1 Section 6694 penalties applicable to return preparer. 28.6694-2 Penalties for understatement due to an unreasonable position. 28.6694-3 Penalty for understatement due to willful, reckless, or intentional conduct. 28.6694-4 Extension of period of collection when tax return preparer pays 15 percent of a penalty for understatement of taxpayer's liability and certain other procedural matters. 28.6695-1 Other assessable penalties with respect to the preparation of tax returns for other persons. 28.6696-1 Claims for credit or refund by tax return preparers and appraisers. 28.7701-1 Tax return preparer. Authority:

    26 U.S.C. 7805.

    Section 28.6001-1 also issued under 26 U.S.C. 6001(a).

    Section 28.6011(a)-1 also issued under 26 U.S.C. 6011(a).

    Section 28.6060-1 also issued under 26 U.S.C. 6060(a).

    Section 28.6071(a)-1 also issued under 26 U.S.C. 6071(a).

    Section 28.6081-1 also issued under 26 U.S.C. 6081(a).

    Section 28.6091-1 also issued under 26 U.S.C. 6091.

    Section 28.6101-1 also issued under 26 U.S.C. 6101.

    Section 28.6107-1 also issued under 26 U.S.C. 6107(c).

    Section 28.6109-1 also issued under 26 U.S.C. 6109(a).

    Section 28.6151-1 also issued under 26 U.S.C. 6151.

    Section 28.6695-1 also issued under 26 U.S.C. 6695(b).

    Section 28.6696-1 also issued under 26 U.S.C. 6696(c).

    § 28.2801-0 Table of contents.

    This section lists the captions in §§ 28.2801-1 through 28.2801-7.

    § 28.2801-1 Tax on certain gifts and bequests from covered expatriates.

    (a) In general.

    (b) Effective/applicability date.

    § 28.2801-2 Definitions.

    (a) Overview.

    (b) Citizen or resident of the United States.

    (c) Domestic trust.

    (d) Foreign trust.

    (1) In general.

    (2) Electing foreign trust

    (e) U.S. recipient.

    (f) Covered bequest.

    (g) Covered gift.

    (h) Expatriate and covered expatriate.

    (i) Indirect acquisition of property.

    (j) Power of appointment.

    (k) Effective/applicability date.

    § 28.2801-3 Rules and exceptions applicable to covered gifts and covered bequests.

    (a) Covered gift.

    (b) Covered bequest.

    (c) Exceptions to covered gift and covered bequest.

    (1) Reported taxable gifts.

    (2) Property reported as subject to estate tax.

    (3) Transfers to charity.

    (4) Transfers to spouse.

    (5) Qualified disclaimers.

    (d) Covered gifts and covered bequests made in trust.

    (e) Powers of appointment.

    (1) Covered expatriate as holder of power.

    (2) Covered expatriate as grantor of power.

    (f) Examples.

    (g) Effective/applicability date.

    § 28.2801-4 Liability for and payment of tax on covered gifts and covered bequests; computation of tax.

    (a) Liability for tax.

    (1) U.S. citizen or resident.

    (2) Domestic trust.

    (i) In general.

    (ii) Generation-skipping transfer tax.

    (iii) Charitable remainder trust.

    (iv) Migrated foreign trust.

    (3) Foreign trust.

    (i) In general.

    (ii) Income tax deduction.

    (b) Computation of tax.

    (1) In general.

    (2) Net covered gifts and covered bequests.

    (c) Value of covered gift or covered bequest.

    (d) Date of receipt.

    (1) In general.

    (2) Covered gift.

    (3) Covered bequest.

    (4) Foreign trusts.

    (5) Powers of appointment.

    (i) Covered expatriate as holder of power.

    (ii) Covered expatriate as grantor of power.

    (6) Indirect receipts.

    (e) Reduction of tax for foreign estate or gift tax paid.

    (f) Examples.

    (g) Effective/applicability date.

    § 28.2801-5 Foreign trusts.

    (a) In general.

    (b) Distribution defined.

    (c) Amount of distribution attributable to covered gift or covered bequest.

    (1) Section 2801 ratio.

    (i) In general.

    (ii) Computation.

    (2) Effect of reported transfer and tax payment.

    (3) Inadequate information to calculate section 2801 ratio.

    (d) Foreign trust treated as domestic trust.

    (1) Election required.

    (2) Effect of election.

    (3) Time and manner of making the election.

    (i) When to make the election.

    (ii) Requirements for a valid election.

    (iii) Section 2801 tax payable with the election.

    (iv) Designation of U.S. agent.

    (A) In general.

    (B) Role of designated agent.

    (C) Effect of appointment of agent.

    (4) Annual certification or filing requirement.

    (5) Duration of status as electing foreign trust.

    (i) In general.

    (ii) Termination.

    (iii) Subsequent elections.

    (6) Dispute as to amount of section 2801 tax owed by electing foreign trust.

    (i) Procedure.

    (ii) Effect of timely paying the additional section 2801 tax amount.

    (iii) Effect of failing to timely pay the additional section 2801 tax amount (imperfect election).

    (A) In general.

    (B) Notice to permissible beneficiaries.

    (C) Reasonable cause.

    (D) Interim period.

    (7) No overpayment caused solely by virtue of defect in election.

    (e) Examples.

    (f) Effective/applicability date.

    § 28.2801-6 Special rules and cross-references.

    (a) Determination of basis.

    (b) Generation-skipping transfer tax.

    (c) Information returns.

    (1) Gifts and bequests.

    (2) Foreign trust distributions.

    (3) Penalties and use of information.

    (d) Application of penalties.

    (1) Accuracy-related penalties on underpayments.

    (2) Penalty for substantial and gross valuation misstatements attributable to incorrect appraisals.

    (3) Penalty for failure to file a return and to pay tax.

    (e) Effective/applicability date.

    § 28.2801-7 Determining responsibility under section 2801.

    (a) Responsibility of recipients of gifts and bequests from expatriates.

    (b) Disclosure of return and return information.

    (1) In general.

    (2) Rebuttable presumption.

    (c) Effective/applicability date.

    § 28.2801-1 Tax on certain gifts and bequests from covered expatriates.

    (a) In general. Section 2801 of the Internal Revenue Code (Code) imposes a tax (section 2801 tax) on covered gifts and covered bequests, including distributions from foreign trusts attributable to covered gifts or covered bequests, received by a United States citizen or resident (U.S. citizen or resident) from a covered expatriate during a calendar year. Domestic trusts, as well as foreign trusts electing to be treated as domestic trusts for purposes of section 2801, are subject to tax under section 2801 in the same manner as if the trusts were U.S. citizens. See section 2801(e)(4)(A)(i) and (e)(4)(B)(iii). Accordingly, the section 2801 tax is paid by the U.S. citizen or resident, domestic trust, or foreign trust electing to be treated as a domestic trust for purposes of section 2801 that receives the covered gift or covered bequest. For purposes of this part 28, references to a U.S. citizen or U.S. citizens are considered to include a domestic trust and a foreign trust electing to be treated as a domestic trust for purposes of section 2801.

    (b) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Once these regulations have been published as final regulations in the Federal Register, taxpayers may rely upon the final rules of this part for the period beginning June 17, 2008, and ending on the date preceding the date these regulations are published as final regulations in the Federal Register.

    § 28.2801-2 Definitions.

    (a) Overview. This section provides definitions of terms applicable solely for purposes of section 2801 and the corresponding regulations.

    (b) Citizen or resident of the United States. A citizen or resident of the United States (U.S. citizen or resident) is an individual who is a citizen or resident of the United States under the rules applicable for purposes of chapter 11 or 12 of the Code, as the case may be, at the time of receipt of the covered gift or covered bequest. Furthermore, for purposes of this part 28, references to U.S. citizens also include domestic trusts, as well as foreign trusts electing to be treated as a domestic trust under § 28.2801-5(d). See § 28.2801-1(a)(1).

    (c) Domestic trust. The term domestic trust means a trust defined in section 7701(a)(30)(E). For purposes of this part 28, references to a domestic trust include a foreign trust that elects under § 28.2801-5(d) to be treated as a domestic trust solely for purposes of section 2801.

    (d) Foreign trust—(1) In general. The term foreign trust means a trust defined in section 7701(a)(31).

    (2) Electing foreign trust. The term electing foreign trust is a foreign trust that has in effect a valid election to be treated as a domestic trust solely for purposes of section 2801. See § 28.2801-5(d).

    (e) U.S. recipient. The term U.S. recipient means a citizen or resident of the United States, a domestic trust, and an electing foreign trust that receives a covered gift or covered bequest, whether directly or indirectly, during the calendar year. The term U.S. recipient includes U.S. citizens or residents receiving a distribution from a foreign trust not electing to be treated as a domestic trust for purposes of section 2801 if the distributions are attributable (in whole or in part) to one or more covered gifts or covered bequests received by the foreign trust. This term also includes the U.S. citizen or resident shareholders, partners, members, or other interest-holders, as the case may be (if any), of a domestic entity that receives a covered gift or covered bequest.

    (f) Covered bequest. The term covered bequest means any property acquired directly or indirectly by reason of the death of a covered expatriate, regardless of its situs and of whether such property was acquired by the covered expatriate before or after expatriation from the United States. The term also includes distributions made by reason of the death of a covered expatriate from a foreign trust that has not elected under § 28.2801-5(d) to be treated as a domestic trust for purposes of section 2801 to the extent the distributions are attributable to covered gifts or covered bequests made to the foreign trust. See § 28.2801-3 for additional rules and exceptions applicable to the term covered bequest.

    (g) Covered gift. The term covered gift means any property acquired by gift directly or indirectly from an individual who is a covered expatriate at the time the property is received by a U.S. citizen or resident, regardless of its situs and of whether such property was acquired by the covered expatriate before or after expatriation from the United States. The term also includes distributions made, other than by reason of the death of a covered expatriate, from a foreign trust that has not elected under § 28.2801-5(d) to be treated as a domestic trust for purposes of section 2801 to the extent the distributions are attributable to covered gifts or covered bequests made to the foreign trust. See § 28.2801-3 for additional rules and exceptions applicable to the term covered gift.

    (h) Expatriate and covered expatriate. The term expatriate has the same meaning for purposes of section 2801 as that term has in section 877A(g)(2). The term covered expatriate has the same meaning for purposes of section 2801 as that term has in section 877A(g)(1). The determination of whether an individual is a covered expatriate is made as of the expatriation date as defined in section 877A(g)(3), and if an expatriate meets the definition of a covered expatriate, the expatriate is considered a covered expatriate for purposes of section 2801 at all times after the expatriation date. However, an expatriate (as defined in section 877A(g)(2)) is not treated as a covered expatriate for purposes of section 2801 during any period beginning after the expatriation date during which such individual is subject to United States estate or gift tax (chapter 11 or chapter 12 of subtitle B) as a U.S. citizen or resident. See section 877A(g)(1)(C). An individual's status as a covered expatriate will be determined as of the date of the most recent expatriation, if there has been more than one.

    (i) Indirect acquisition of property. An indirect acquisition of property, as referred to in the definitions of a covered gift and covered bequest, includes—

    (1) Property acquired as a result of a transfer that is a covered gift or covered bequest to a corporation or other entity other than a trust or estate, to the extent of the respective ownership interest of the recipient U.S. citizen or resident in the corporation or other entity;

    (2) Property acquired by or on behalf of a U.S. citizen or resident, either from a covered expatriate or from a foreign trust that received a covered gift or covered bequest, through one or more other foreign trusts, other entities, or a person not subject to the section 2801 tax;

    (3) Property paid by a covered expatriate, or distributed from a foreign trust that received a covered gift or covered bequest, in satisfaction of a debt or liability of a U.S. citizen or resident, regardless of the payee of that payment or distribution;

    (4) Property acquired by or on behalf of a U.S. citizen or resident pursuant to a non-covered expatriate's power of appointment granted by a covered expatriate over property not in trust, unless the property previously was subjected to section 2801 tax upon the grant of the power or the covered expatriate had no more than a non-general power of appointment over that property; and

    (5) Property acquired by or on behalf of a U.S. citizen or resident in other transfers not made directly by the covered expatriate to the U.S. citizen or resident.

    (j) Power of appointment. The term power of appointment refers to both a general and non-general power of appointment. A general power of appointment is as defined in sections 2041(b) and 2514(c) of the Code and a non-general power of appointment is any power of appointment that is not a general power of appointment.

    (k) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Once these regulations have been published as final regulations in the Federal Register, taxpayers may rely upon the final rules of this part for the period beginning June 17, 2008, and ending on the date preceding the date these regulations are published as final regulations in the Federal Register.

    § 28.2801-3 Rules and exceptions applicable to covered gifts and covered bequests.

    (a) Covered gift. Subject to the provisions of paragraphs (c), (d), and (e) of this section, the term gift as used in the definition of covered gift in § 28.2801-2(g) has the same meaning as in chapter 12 of subtitle B, but without regard to the exceptions in section 2501(a)(2), (a)(4), and (a)(5), the per-donee exclusion under section 2503(b) for certain transfers of a present interest, the exclusion under section 2503(e) for certain educational or medical expenses, and the waiver of certain pension rights under section 2503(f).

    (b) Covered bequest. Subject to the provisions of paragraphs (c), (d), and (e) of this section, property acquired “by reason of the death of a covered expatriate” as described in the definition of covered bequest in § 28.2801-2(f) includes any property that would have been includible in the gross estate of the covered expatriate under chapter 11 of subtitle B if the covered expatriate had been a U.S. citizen at the time of death. Therefore, in addition to the items described in § 28.2801-2(f), the term covered bequest includes, without limitation, property or an interest in property acquired by reason of a covered expatriate's death—

    (1) By bequest, devise, trust provision, beneficiary designation or other contractual arrangement, or by operation of law;

    (2) That was transferred by the covered expatriate during life, either before or after expatriation, and which would have been includible in the covered expatriate's gross estate under section 2036, section 2037, or section 2038 had the covered expatriate been a U.S. citizen at the time of death;

    (3) That was received for the benefit of a covered expatriate from such covered expatriate's spouse, or predeceased spouse, for which a valid qualified terminable interest property (QTIP) election was made on such spouse's, or predeceased spouse's, Form 709, “U.S. Gift (and Generation-Skipping Transfer) Tax Return,” Form 706, “United States Estate (and Generation-Skipping Transfer) Tax Return,” or Form 706-NA, “United States Estate (and Generation-Skipping Transfer) Tax Return, Estate of Nonresident Not a Citizen of the United States,” which would have been included in the covered expatriate's gross estate under section 2044 if the covered expatriate was a U.S. citizen at the time of death; or

    (4) That otherwise passed from the covered expatriate by reason of death, such as—

    (i) Property held by the covered expatriate and another person as joint tenants with right of survivorship or as tenants by the entirety, but only to the extent such property would have been included in the covered expatriate's gross estate under section 2040 if the covered expatriate had been a U.S. citizen at the time of death;

    (ii) Any annuity or other payment that would have been includible in the covered expatriate's gross estate if the covered expatriate had been a U.S. citizen at the time of death;

    (iii) Property subject to a general power of appointment held by the covered expatriate at death; or

    (iv) Life insurance proceeds payable upon the covered expatriate's death that would have been includible in the covered expatriate's gross estate under section 2042 if the covered expatriate had been a U.S. citizen at the time of death.

    (c) Exceptions to covered gift and covered bequest. The following transfers from a covered expatriate are exceptions to the definition of covered gift and covered bequest.

    (1) Reported taxable gifts. A transfer of property that is a taxable gift under section 2503(a) and is reported on the donor's timely filed Form 709 is not a covered gift, provided that the donor also timely pays the gift tax, if any, shown as due on that return. A transfer excluded from the definition of a taxable gift, such as a transfer of a present interest not in excess of the annual exclusion amount under section 2503(b), is not excluded from the definition of a covered gift under this paragraph (c)(1) even if reported on the donor's Form 709.

    (2) Property reported as subject to estate tax. Property that is included in the gross estate of the covered expatriate and is reported on a timely filed Form 706 or Form 706-NA is not a covered bequest, provided that the estate also timely pays the estate tax, if any, shown as due on that return. For this purpose, estate tax imposed on distributions from or on the remainder of a qualified domestic trust (QDOT) are deemed to be reported on a timely filed Form 706, if the tax due thereon was timely paid. Thus, if the covered expatriate's gross estate is not of sufficient value to require the filing of a Form 706-NA, for example, and no Form 706-NA is timely filed, the property passing from that covered expatriate is not excluded from the definition of a covered bequest under the rule of this paragraph (c)(2). Further, this exclusion does not apply to the property not on such a form, whether or not subject to United States estate tax (that is, non U.S.-situs property that passes to U.S. citizens or residents).

    (3) Transfers to charity. A gift to a donee described in section 2522(b) or a bequest to a beneficiary described in section 2055(a) is not a covered gift or covered bequest to the extent a charitable deduction under section 2522 or section 2055 would have been allowed if the covered expatriate had been a U.S. citizen or resident at the time of the transfer.

    (4) Transfers to spouse. A transfer from a covered expatriate to the covered expatriate's spouse is not a covered gift or covered bequest to the extent a marital deduction under section 2523 or section 2056 would have been allowed if the covered expatriate had been a U.S. citizen or resident at the time of the transfer. To the extent that a gift or bequest to a trust (or to a separate share of the trust) would qualify for the marital deduction, the gift or bequest is not a covered gift or covered bequest. For purposes of this paragraph (c)(4), a marital deduction is deemed not to be allowed for qualified terminable interest property (QTIP) or for property in a qualified domestic trust (QDOT) unless a valid QTIP and/or QDOT election is made. The term covered bequest also does not include assets in a QDOT funded for the benefit of a covered expatriate by the covered expatriate's predeceased spouse, but only if a valid election was made on the predeceased spouse's Form 706 or Form 706-NA to treat the trust as a QDOT.

    (5) Qualified disclaimers. A transfer pursuant to a covered expatriate's qualified disclaimer, as defined in section 2518(b), is not a covered gift or covered bequest from that covered expatriate.

    (d) Covered gifts and covered bequests made in trust. For purposes of section 2801, when a covered expatriate transfers property to a trust in a transfer that is a covered gift or covered bequest as determined under this section, the transfer of property is treated as a covered gift or covered bequest to the trust, without regard to the beneficial interests in the trust or whether any person has a general power of appointment or a power of withdrawal over trust property. Accordingly, the rules in section 2801(e)(4) and § 28.2801-4(a) apply to determine liability for payment of the section 2801 tax. The U.S. recipient of a covered gift or a covered bequest to a domestic trust or an electing foreign trust is the domestic or electing foreign trust, and the U.S. recipient of a covered gift or a covered bequest to a non-electing foreign trust is any U.S. citizen or resident receiving a distribution from the non-electing foreign trust. See § 28.2801-2(e) for the definition of a U.S. recipient.

    (e) Powers of appointment—(1) Covered expatriate as holder of power. The exercise or release of a general power of appointment held by a covered expatriate over property, whether or not in trust (even if that covered expatriate was a U.S. citizen or resident when the general power of appointment was granted), for the benefit of a U.S. citizen or resident is a covered gift or covered bequest. The lapse of a general power of appointment is treated as a release to the extent provided in sections 2041(b)(2) and 2514(e). Furthermore, the exercise of a power of appointment by a covered expatriate that creates another power of appointment as described in section 2041(a)(3) or section 2514(d) for the benefit of a U.S. citizen or resident is a covered gift or a covered bequest.

    (2) Covered expatriate as grantor of power. The grant by a covered expatriate to an individual who is a U.S. citizen or resident of a general power of appointment over property not transferred in trust by the covered expatriate is a covered gift or covered bequest to the powerholder. For the rule applying to the grant by a covered expatriate of a general power of appointment over property in trust, see paragraph (d) of this section.

    (f) Examples. The provisions of this section are illustrated by the following examples:

    Example 1.

    Transfer to spouse. In Year 1, CE, a covered expatriate domiciled in Country F, a foreign country with which the United States does not have a gift tax treaty, gives $300,000 cash to his wife, W, a U.S. resident and citizen of Country F. Under paragraph (c)(4) of this section, the $100,000 exemption for a noncitizen spouse, as indexed for inflation in Year 1, is excluded from the definition of a covered gift under section 2801 because only that amount of the transfer would have qualified for the gift tax marital deduction if CE had been a U.S. citizen at the time of the gift. See sections 2801(e)(3) and 2523(i). The remaining amount ($300,000 less the $100,000 exemption for a noncitizen spouse as indexed for inflation), however, is a covered gift from CE to W. W must timely file Form 708, “U.S. Return of Gifts or Bequests from Covered Expatriates,” and timely pay the tax. See §§ 28.6011-1(a), 28.6071-1(a), and 28.6151-1(a). W also must report the transfer on Form 3520, “Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts,” and any other required form. See § 28.2801-6(c)(1).

    Example 2.

    Reporting property as subject to estate tax. (i) CE, a covered expatriate domiciled in Country F, a foreign country with which the United States does not have an estate tax treaty, owns a condominium in the United States with son, S, a U.S. citizen. CE and S each contributed their actuarial share of the purchase price when purchasing the condominium and own it as joint tenants with rights of survivorship. On December 14, Year 1, CE dies. At the time of CE's death, the fair market value of CE's share of the condominium, $250,000, is included in CE's gross estate under sections 2040 and 2103.

    (ii) On September 14 of the following calendar year, Year 2, the executor of CE's estate timely files a Form 4768, “Application for Extension of Time to File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes,” requesting a 6-month extension of time to file Form 706-NA, and a 1-year extension of time to pay the estate tax. The IRS grants both extensions but CE's executor fails to file the Form 706-NA until after March 14 of the calendar year immediately following Year 2.

    (iii) S learns that the executor of CE's estate did not timely file Form 706-NA. Because CE is a covered expatriate, S received a covered bequest as defined under § 28.2801-2(f) and paragraph (b) of this section. S must timely file Form 708 and pay the section 2801 tax. See §§ 28.6011-1(a), 28.6071-1(a), and 28.6151-1(a). S also must file Form 3520 to report a large gift or bequest from a foreign person, and any other required form. See § 28.2801-6(c)(1).

    Example 3. Covered gift in trust with grant of general power of appointment over trust property.

    (i) On October 20, Year 1, CE, a covered expatriate domiciled in Country F, a foreign country with which the United States does not have a gift tax treaty, transfers $500,000 in cash from an account in Country F to an irrevocable foreign trust created on that same date. Under section 2511(a), no gift tax is imposed on the transfer and thus, CE is not required to file a U.S. gift tax return. Under the terms of the foreign trust, A, CE's child and a U.S. resident, and Q, A's child and a U.S. citizen, may receive discretionary distributions of income and principal during life. At A's death, the assets remaining in the foreign trust will be distributed to B, CE's other U.S. resident child, or if B is not living at the time of A's death, then to CE's then-living issue, per stirpes. The terms of the foreign trust also allow A to appoint trust principal and/or income to A, A's estate, A's creditors, the creditors of A's estate, or A's issue at any time. On March 5, Year 2, A exercises this power to appoint and causes the trustee to distribute $100,000 to Q.

    (ii) On October 20, Year 1, the irrevocable foreign trust receives a covered gift for purposes of section 2801, but no section 2801 tax is imposed at that time. On March 5, Year 2, when Q receives $100,000 from the irrevocable foreign trust pursuant to the exercise of A's power of appointment, Q has received a distribution attributable to a covered gift and section 2801 tax is imposed on Q as of the date of the distribution. See § 28.2801-4(d). Q must timely file Form 708 to report the covered gift from a foreign person (specifically, from CE). See section 6039F(a) and §§ 28.6011-1(a), 28.6071-1(a), and 28.6151-1(a). Under section 2501, A makes a taxable gift to Q of $100,000 when A exercises the general power of appointment for Q's benefit. See section 2514(b). Accordingly, A must report A's $100,000 gift to Q on a timely filed Form 709. See section 6019. Because A is considered the transferor of the $100,000 for gift and GST tax purposes, the distribution to Q is not a generation-skipping transfer under chapter 13. See § 26.2652-1(a)(1). Furthermore, because the $100,000 is being distributed from a foreign trust, Q must report the gift on a Form 3520 as a distribution from a foreign trust. See § 28.2801-6(c)(2).

    Example 4.

    Lapse of power of appointment held by covered expatriate. (i) A, a U.S. citizen, creates an irrevocable domestic trust for the benefit of A's issue, CE, and CE's children. CE is a covered expatriate, but CE's children are U.S. citizens. CE has the right to withdraw $5,000 in each year in which A makes a contribution to the trust, but the withdrawal right lapses 30 days after the date of the contribution. In Year 1, A funds the trust, but CE fails to exercise CE's right to withdraw $5,000 within 30 days of the contribution. The $5,000 lapse is not considered to be a release of the power, so it is neither a gift for U.S. gift tax purposes, nor a covered gift for purposes of section 2801 under paragraph (e)(1) of this section.

    (g) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Once these regulations have been published as final regulations in the Federal Register, taxpayers may rely upon the final rules of this part for the period beginning June 17, 2008, and ending on the date preceding the date these regulations are published as final regulations in the Federal Register.

    § 28.2801-4 Liability for and payment of tax on covered gifts and covered bequests; computation of tax.

    (a) Liability for tax—(1) U.S. citizen or resident. A U.S. citizen or resident who receives a covered gift or covered bequest is liable for payment of the section 2801 tax.

    (2) Domestic trust—(i) In general. A domestic trust that receives a covered gift or covered bequest is treated as a U.S. citizen and is liable for payment of the section 2801 tax. See section 2801(e)(4)(A)(i) and § 28.2801-2(b).

    (ii) Generation-skipping transfer tax. A trust's payment of the section 2801 tax does not result in a taxable distribution under section 2621 to any trust beneficiary for purposes of the generation-skipping transfer tax to the extent that the trust, rather than the beneficiary, is liable for the section 2801 tax.

    (iii) Charitable remainder trust. A domestic trust qualifying as a charitable remainder trust (as that term is defined in § 1.664-1(a)(1)(iii)(a)) is subject to section 2801 when it receives a covered gift or covered bequest. Section 2801(e)(3) excepts from the definition of covered gift and covered bequest property with respect to which a deduction under section 2522 or section 2055, respectively, would have been allowed if the covered expatriate had been a U.S. citizen or resident at the time of the transfer. See § 28.2801-3(c)(3). As a result, the charitable remainder interest's share of each transfer to the charitable remainder trust is not a covered gift or covered bequest. To compute the amount of covered gifts and covered bequests taxable to the charitable remainder trust for a calendar year, the charitable remainder trust will (A) calculate, in accordance with the regulations under section 664 and as of the date of the trust's receipt of the contribution, the value of the remainder interest in each contribution received in such calendar year that would have been a covered gift or covered bequest without regard to section 2801(e)(3), (B) subtract the remainder interest in each such contribution from the amount of that contribution to compute the annuity or unitrust (income) interest in that contribution, and (C) add the total of such income interests, each of which is the portion of the contribution that constitutes a covered gift or covered bequest to the trust. The charitable remainder trust then computes its section 2801 tax in accordance with paragraph (b) of this section.

    (iv) Migrated foreign trust. A foreign trust (other than one electing to be treated as a domestic trust under § 28.2801-5(d)) that has previously received a covered gift or covered bequest and that subsequently becomes a domestic trust as defined under section 7701(a)(30)(E) (migrated foreign trust), must file a timely Form 708, “U.S. Return of Gifts or Bequests from Covered Expatriates,” for the taxable year in which the trust becomes a domestic trust. The section 2801 tax, if any, must be paid by the due date of that Form 708. On that Form 708, the section 2801 tax is calculated in the same manner as if such trust was making an election under § 28.2801-5(d) to be treated as a domestic trust solely for purposes of the section 2801 tax. Accordingly, the trustee must report and pay the section 2801 tax on all covered gifts and covered bequests received by the trust during the year in which the trust becomes a domestic trust, as well as on the portion of the trust's value at the end of the year preceding the year in which the trust becomes a domestic trust that is attributable to all prior covered gifts and covered bequests. Because the migrated foreign trust will be treated solely for purposes of section 2801 as a domestic trust for the entire year during which it became a domestic trust, distributions made to U.S. citizens or residents during that year but before the date on which the trust became a domestic trust will not be subject to section 2801.

    (3) Foreign trust—(i) In general. A foreign trust that receives a covered gift or covered bequest is not liable for payment of the section 2801 tax unless the trust makes an election to be treated as a domestic trust solely for purposes of section 2801 as provided in § 28.2801-5(d). Absent such an election, each U.S. recipient is liable for payment of the section 2801 tax on that person's receipt, either directly or indirectly, of a distribution from the foreign trust to the extent that the distribution is attributable to a covered gift or covered bequest made to the foreign trust. See § 28.2801-5(b) and (c) regarding distributions from foreign trusts.

    (ii) Income tax deduction. The U.S. recipient of a distribution from a foreign trust is allowed a deduction against income tax under section 164 in the calendar year in which the section 2801 tax is paid or accrued. The amount of the deduction is equal to the portion of the section 2801 tax attributable to such distribution, but only to the extent that portion of the distribution is included in the U.S. recipient's gross income. The amount of the deduction allowed under section 164 is calculated as follows:

    (A) First, the U.S. recipient must determine the total amount of distribution(s) from the foreign trust treated as covered gifts and covered bequests received by that U.S. recipient during the calendar year to which the section 2801 tax payment relates.

    (B) Second, of the amount determined in paragraph (a)(3)(ii)(A) of this section, the U.S. recipient must determine the amount that also is includable in the U.S. recipient's gross income for that calendar year. For purposes of this paragraph (a)(3)(ii)(B), distributions from foreign trusts includable in the U.S. recipient's gross income are deemed first to consist of the portion of those distributions, if any, that are attributable to covered gifts and covered bequests.

    (C) Finally, the U.S. recipient must determine the portion of the section 2801 tax paid for that calendar year that is attributable to the amount determined in paragraph (a)(3)(ii)(B) of this section, the covered gifts and covered bequests received from the foreign trust that are also included in the U.S. recipient's gross income. This amount is the allowable deduction. Thus, for a calendar year taxpayer, the deduction is determined by multiplying the section 2801 tax paid during the calendar year by the ratio of the amount determined in paragraph (a)(3)(ii)(B) of this section to the total covered gifts and covered bequests received by the U.S. recipient during the calendar year to which that tax payment relates (that is, 2801 tax liability × [foreign trust distributions attributable to covered gifts and covered bequests that are also included in gross income/total covered gifts or covered bequests received]).

    (b) Computation of tax—(1) In general. The section 2801 tax is computed by multiplying the net covered gifts and covered bequests (as defined in paragraph (b)(2) of this section) received by a U.S. recipient during the calendar year by the greater of—

    (i) The highest rate of estate tax under section 2001(c) in effect for that calendar year; or

    (ii) The highest rate of gift tax under section 2502(a) in effect for that calendar year. See paragraph (f) of this section, Example 1.

    (2) Net covered gifts and covered bequests. The net covered gifts and covered bequests received by a U.S. recipient during the calendar year is the total value of all covered gifts and covered bequests received by that U.S. recipient during the calendar year, less the section 2801(c) amount, which is the dollar amount of the per-donee exclusion in effect under section 2503(b) for that calendar year.

    (c) Value of covered gift or covered bequest. The value of a covered gift or covered bequest is the fair market value of the property as of the date of its receipt by the U.S. recipient. See paragraph (d) of this section regarding the determination of the date of receipt. As in the case of chapters 11 and 12, the fair market value of a covered gift or covered bequest is the price at which such property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. The fair market value of a covered gift is determined in accordance with the federal gift tax valuation principles of section 2512 and chapter 14 and the corresponding regulations. The fair market value of a covered bequest is determined by applying the federal estate tax valuation principles of section 2031 and chapter 14 and the corresponding regulations, but without regard to sections 2032 and 2032A.

    (d) Date of receipt—(1) In general. The section 2801 tax is imposed upon the receipt of a covered gift or covered bequest by a U.S. recipient.

    (2) Covered gift. The date of receipt of a covered gift is the same as the date of the gift for purposes of chapter 12 as if the covered expatriate had been a U.S. citizen at the time of the transfer. Thus, for a gift of stock, if the covered expatriate delivers a properly endorsed stock certificate to the U.S. recipient, the date of delivery is the date of receipt for purposes of this section. Alternatively, if the covered expatriate delivers the stock certificate to the issuing corporation or its transfer agent in order to transfer title to the U.S. recipient, the date of receipt is the date the stock is transferred on the books of the corporation. For a transfer of assets by a covered expatriate to a domestic revocable trust, the trust receives the transfer on the date the covered expatriate relinquishes the right to revoke the trust. If, before the donor's relinquishment of the right to revoke the trust, the revocable trust distributes property to a U.S. citizen or resident not in discharge of a support or other obligation of the donor, then the U.S. recipient receives a covered gift on the date of that distribution. For an asset subject to a claim of right of another involving a bona fide dispute, the date of receipt is the date on which such claim is extinguished.

    (3) Covered bequest. The date of receipt of a covered bequest is the date of distribution from the estate or the decedent's revocable trust rather than the date of death of the covered expatriate. However, the date of receipt is the date of death for property passing on the death of the covered expatriate by operation of law, or by beneficiary designation or other contractual agreement. Notwithstanding the previous sentences, for an asset subject to a claim of right of another involving a bona fide dispute, the date of receipt is the date on which such claim is extinguished.

    (4) Foreign trusts. The date of receipt by a U.S. citizen or resident of property from a foreign trust that has not elected to be treated as a domestic trust under § 28.2801-5(d) is the date of its distribution from the foreign trust.

    (5) Powers of appointment—(i) Covered expatriate as holder of power. In the case of the exercise, release, or lapse of a power of appointment held by a covered expatriate that is a covered gift pursuant to § 28.2801-3(e)(1), the date of receipt is the date of the exercise, release, or lapse of the power. In the case of the exercise, release, or lapse of a power of appointment held by a covered expatriate that is a covered bequest pursuant to § 28.2801-3(e)(1), the date of receipt is (A) the date the property subject to the power is distributed from the decedent's estate or revocable trust when the power of appointment is over property in such estate or trust, or (B) the date of the covered expatriate's death when the power of appointment is over property passing on the covered expatriate's death by operation of law, by beneficiary designation, or by other contractual agreement.

    (ii) Covered expatriate as grantor of power. The date of receipt of property subject to a general power of appointment granted by a covered expatriate to a U.S. citizen or resident over property not transferred in trust that constitutes a covered gift or covered bequest pursuant to § 28.2801-3(e)(2) is the first date on which both the power is exercisable by the U.S. citizen or resident and the property subject to the general power has been irrevocably transferred by the covered expatriate. The date of receipt of property subject to a general power of appointment over property in a domestic trust or an electing foreign trust is determined in accordance with paragraphs (d)(2) and (d)(3) of this section, and over property in a non-electing foreign trust is determined in accordance with paragraph (d)(4) of this section. See § 28.2801-3(d) for the rule applying to covered gifts and covered bequests made in trust.

    (6) Indirect receipts. The date of receipt by a U.S. citizen or resident of a covered gift or covered bequest received indirectly from a covered expatriate is the date of its receipt, as determined under paragraph (d)(2) or (d)(3) of this section, by the U.S. citizen or resident who is the first recipient of that property from the covered expatriate to be subject to section 2801 with regard to that property. For example, the date of receipt of property (i) subject to a non-general power of appointment over property not held in trust given by a covered expatriate to a foreign person (other than another covered expatriate) is the date that property is received by the U.S. citizen or resident in whose favor the power was exercised, and (ii) received through one or more entities not subject to section 2801 is the date of its receipt by the U.S. citizen or resident from a conduit entity.

    (e) Reduction of tax for foreign estate or gift tax paid. The section 2801 tax is reduced by the amount of any gift or estate tax paid to a foreign country with respect to the covered gift or covered bequest. For this purpose, the term foreign country includes possessions and political subdivisions of foreign states. However, no reduction is allowable for interest and penalties paid in connection with those foreign taxes. To claim the reduction of section 2801 tax, the U.S. recipient must attach to the Form 708 a copy of the foreign estate or gift tax return and a copy of the receipt or cancelled check for payment of the foreign estate or gift tax. The U.S. recipient also must report, on an attachment to the Form 708:

    (1) The amount of foreign estate or gift tax paid with respect to each covered gift or covered bequest and the amount and date of each payment thereof;

    (2) A description and the value of the property with respect to which such taxes were imposed;

    (3) Whether any refund of part or all of the foreign estate or gift tax has been or will be claimed or allowed, and the amount; and

    (4) All other information necessary for the verification and computation of the amount of the reduction of section 2801 tax.

    (f) Examples. The provisions of this section are illustrated by the following examples.

    Example 1.

    Computation of tax. In Year 1, A, a U.S. citizen, receives a $50,000 covered gift from B and an $80,000 covered bequest from C. Both B and C are covered expatriates. In Year 1, the highest estate and gift tax rate is 40 percent and the section 2801(c) amount is $14,000. A's section 2801 tax for Year 1 is computed by multiplying A's net covered gifts and covered bequests by 40 percent. A's net covered gifts and covered bequests for Year 1 are $116,000, which is determined by reducing A's total covered gifts and covered bequests received during Year 1, $130,000 ($50,000 + $80,000), by the section 2801(c) amount of $14,000. A's section 2801 tax liability is then reduced by any foreign estate or gift tax paid under paragraph (e) of this section. Assuming A, B, and C paid no foreign estate or gift tax on the transfers, A's section 2801 tax liability for Year 1 is $46,400 ($116,000 × 0.4).

    Example 2.

    Deduction of section 2801 tax for income tax purposes. In Year 1, B receives a covered bequest of $25,000. Also in Year 1, B receives an aggregate $500,000 of distributions from a non-electing foreign trust of which $100,000 was attributable to a covered gift. In Year 1, the highest estate and gift tax rate is 40 percent and the section 2801(c) amount is $14,000. Based on information provided by the trustee of the foreign trust, B includes $50,000 of the aggregate distributions from the foreign trust in B's gross income for Year 1. Under paragraph (a)(3)(ii) of this section, B (a cash basis taxpayer) is entitled to an income tax deduction under section 164 for the calendar year in which the section 2801 tax is paid. In Year 2, B timely reports the distributions from the foreign trust and pays $44,400 in section 2801 tax (($125,000−$14,000) × 0.4). In Year 2, B is entitled to an income tax deduction because B paid the section 2801 tax in Year 2 on the Year 1 covered gift and covered bequest. B's Year 2 income tax deduction is computed as follows:

    (i) $100,000 of B's total covered gifts and covered bequests of $125,000 received in Year 1 consisted of the portion of the distributions from the foreign trust attributable to covered gifts and covered bequests received by the trust. See paragraph (a)(3)(ii)(A) of this section.

    (ii) $50,000 of the $500,000 of trust distributions were includable in B's gross income for Year 1. This amount is deemed to consist first of distributions subject to the section 2801 tax ($100,000). Thus, the entire amount included in B's gross income ($50,000) also is subject to the section 2801 tax, and is used in the numerator to determine the income tax deduction available to B. See paragraph (a)(3)(ii)(B) of this section.

    (iii) The portion of B's section 2801 tax liability attributable to distributions from a foreign trust is $17,760 ($44,400 × ($50,000/$125,000)). Therefore, B's deduction under section 164 is $17,760. See paragraph (a)(3)(ii)(C) of this section.

    Example 3.

    Date of receipt; bona fide claim. On October 10, Year 1, CE, a covered expatriate, died testate as a resident of Country F, a foreign country with which the United States does not have an estate tax treaty. CE designated his son, S, as the beneficiary of CE's retirement account. S is a U.S. citizen. CE's wife, W, who is a citizen and resident of Country F, elects to take her elective share of CE's estate under local law. S contests whether the retirement account is property subject to the elective share. S and W agree to settle their respective claims by dividing CE's assets equally between them. On December 15 of Year 2, Country F's court enters an order accepting the terms of the settlement agreement and dismissing the case. Under paragraph (d)(3) of this section, S received a covered bequest of one-half of CE's retirement account on December 15, Year 2, when W's claim of right was extinguished.

    (g) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Once these regulations have been published as final regulations in the Federal Register, taxpayers may rely upon the final rules of this part for the period beginning June 17, 2008, and ending on the date preceding the date these regulations are published as final regulations in the Federal Register.

    § 28.2801-5 Foreign trusts.

    (a) In general. The section 2801 tax is imposed on a U.S. recipient who receives distributions, whether of income or principal, from a foreign trust to the extent the distributions are attributable to one or more covered gifts or covered bequests made to that foreign trust. See paragraph (d) of this section regarding a foreign trust's election to be treated as a domestic trust for purposes of section 2801.

    (b) Distribution defined. For purposes of determining whether a U.S. recipient has received a distribution from a foreign trust, the term distribution means any direct, indirect, or constructive transfer from a foreign trust. This determination is made without regard to whether any portion of the trust is treated as owned by the U.S. recipient or any other person under subpart E of part I, subchapter J, chapter 1 of the Code (pertaining to grantors and others treated as substantial owners) and without regard to whether the U.S. recipient of the transfer is designated as a beneficiary by the terms of the trust. For purposes of section 2801, the term distribution also includes each disbursement from a foreign trust pursuant to the exercise, release, or lapse of a power of appointment, whether or not a general power. In addition to the reporting requirements under this section, see section 6048(c) regarding the information reporting requirement for U.S. persons receiving a distribution or deemed distribution from a foreign trust during the year.

    (c) Amount of distribution attributable to covered gift or covered bequest—(1) Section 2801 ratio—(i) In general. A foreign trust may have received covered gifts and covered bequests as well as contributions that were not covered gifts or covered bequests. Under such circumstances, the fair market value of the foreign trust at any time consists in part of a portion of the trust attributable to the covered gifts and covered bequests it has received (covered portion) and in part of a portion of the trust attributable to other contributions (non-covered portion). The covered portion of the trust includes the ratable portion of appreciation and income that has accrued on the foreign trust's assets from the date of the contribution of the covered gifts and covered bequests to the foreign trust. For purposes of section 2801, the amount of each distribution from the foreign trust, whether made from the income or principal of the trust, that is considered attributable to the foreign trust's covered gifts and covered bequests is determined on a proportional basis, by reference to the section 2801 ratio (as described in paragraph (c)(1)(ii) of this section), and not by the identification or tracing of particular trust assets. Specifically, this portion of each distribution is determined by multiplying the distributed amount by the percentage of the trust that consists of its covered portion immediately prior to that distribution (section 2801 ratio). Thus, for example, the section 2801 ratio of a foreign trust whose assets are comprised exclusively of covered gifts or covered bequests and the income and appreciation thereon, would be 1 and the full amount of each distribution from that foreign trust to a U.S. citizen or resident would be subject to section 2801.

    (ii) Computation. The section 2801 ratio, which must be redetermined after each contribution to the foreign trust, is computed by using the following fraction:

    EP10SE15.000 Where, X = The value of the trust attributable to covered gifts and covered bequests, if any, immediately before the contribution (pre-contribution value); this value is determined by multiplying the fair market value of the trust assets immediately prior to the contribution by the section 2801 ratio in effect immediately prior to the current contribution. This amount will be zero for all years prior to the year in which the foreign trust receives its first covered gift or covered bequest; Y = The portion, if any, of the fair market value of the current contribution that constitutes a covered gift or covered bequest; and Z = The fair market value of the trust immediately after the current contribution. See paragraph (e) of this section, Example 1, for an illustration of this computation.

    (2) Effect of reported transfer and tax payment. Once a section 2801 tax has been timely paid on property that thereafter remains in a foreign trust, that property is no longer considered to be, or to be attributable to, a covered gift or covered bequest to the foreign trust for purposes of the computation described in paragraph (c)(1)(ii) of this section. For purposes of the prior sentence, a section 2801 tax is deemed to have been timely paid on amounts for which no section 2801 tax was due as long as those amounts were reported as a covered gift or covered bequest on a timely filed Form 708, “U.S. Return of Gifts or Bequests from Covered Expatriates.”

    (3) Inadequate information to calculate section 2801 ratio. If the trustee of the foreign trust does not have sufficient books and records to calculate the section 2801 ratio, or if the U.S. recipient is unable to obtain the necessary information with regard to the foreign trust, the U.S. recipient must proceed upon the assumption that the entire distribution for purposes of section 2801 is attributable to a covered gift or covered bequest.

    (d) Foreign trust treated as domestic trust—(1) Election required. To be considered an electing foreign trust, so that the foreign trust is treated as a domestic trust solely for purposes of the section 2801 tax, a valid election is required.

    (2) Effect of election. (i) A valid election subjects the electing foreign trust to the section 2801 tax on (A) all covered gifts and covered bequests received by the foreign trust during that calendar year, (B) the portion of the trust attributable to covered gifts and covered bequests received by the trust in prior years, as determined in paragraph (d)(3)(iii) of this section, and (C) all covered gifts and covered bequests received by the foreign trust during calendar years subsequent to the first year in which the election is effective, unless and until the election is terminated. To the extent that covered gifts and covered bequests are subject to the section 2801 tax under the prior sentence, those trust receipts are no longer treated as a covered gift or covered bequest for purposes of determining the portion of the trust attributable to covered gifts and covered bequests. Therefore, upon making a valid election, the foreign trust's section 2801 ratio described in paragraph (c)(1)(ii) of this section will be zero until the effective date of any termination of the election and the subsequent receipt of any covered gift or covered bequest, and a distribution made from the foreign trust while this election is in effect is not taxable under section 2801 to the recipient trust beneficiary.

    (ii) This election has no effect on any distribution from the foreign trust that was made to a U.S. recipient in a calendar year prior to the calendar year for which the election is made. Thus, even after a valid election is made, a distribution to a U.S. recipient in a calendar year prior to the calendar year for which the election is made that was attributable to one or more covered gifts or covered bequests continues to be a distribution attributable to one or more covered gifts or covered bequests and the section 2801 ratio in place at the time of the distribution continues to apply to that distribution. Furthermore, an election under this section does not relieve the U.S. recipient from the information reporting requirements of section 6048(c).

    (3) Time and manner of making the election—(i) When to make the election. The election is made on a timely filed Form 708 for the calendar year for which the foreign trust seeks to subject itself to the section 2801 tax as described in paragraph (d)(2)(i) of this section. The election may be made for a calendar year whether or not the foreign trust received a covered gift or covered bequest during that calendar year. See § 28.6071-1.

    (ii) Requirements for a valid election. To make a valid election to be treated as a domestic trust for purposes of section 2801, the electing foreign trust must timely file a Form 708 and must, on such form—

    (A) Make the election, timely pay the section 2801 tax, if any, as determined under paragraph (d)(3)(iii) of this section, and include a computation illustrating how the trustee of the electing foreign trust calculated both the section 2801 ratio described in paragraph (c)(1)(ii) of this section and the section 2801 tax;

    (B) Designate and authorize a U.S. agent as provided in paragraph (d)(3)(iv) of this section;

    (C) Agree to file Form 708 annually;

    (D) List the amount and year of all prior distributions attributable to covered gifts and covered bequests made to a U.S. recipient and provide the name, address, and taxpayer identification number of each U.S. recipient; and

    (E) Notify each permissible distributee that the trustee is making the election under this paragraph (d) and provide to the IRS a list of the name, address, and taxpayer identification number of each permissible distributee. For this purpose, a permissible distributee is any U.S. citizen or resident who:

    (1) Currently may or must receive distributions from the trust, whether of income or principal;

    (2) May withdraw income or principal from the trust, regardless of whether the right arises or lapses upon the occurrence of a future event; or

    (3) Would have been described in paragraph (d)(3)(ii)(E)(1) of this section if either the interests of all persons described in (d)(3)(ii)(E)(1) or (E)(2) had just terminated or the trust had just terminated.

    (iii) Section 2801 tax payable with the election. To make a valid election to be treated as a domestic trust for purposes of section 2801, the electing foreign trust must timely pay the section 2801 tax on all covered gifts and covered bequests received by the electing foreign trust in the calendar year for which the Form 708 is being filed. In some cases, an electing foreign trust may have received covered gifts or covered bequests in prior calendar years during which no such election was in effect. In those cases, the trustee must also, at the same time, report and pay the tax on the fair market value, determined as of the last day of the calendar year immediately preceding the year for which the Form 708 is being filed, of the portion of the trust attributable to covered gifts and covered bequests received by such trust in prior calendar years (except as provided in paragraph (d)(6)(iii) of this section with regard to an imperfect election). That portion is determined by multiplying the fair market value of the trust, as of the December 31 immediately preceding the year for which the election is made, by the section 2801 ratio in effect on that date, as calculated under paragraph (c)(1)(ii) of this section. If the trustee does not have sufficient books and records to determine what amount of the corpus and undistributed income is attributable to undistributed prior covered gifts and covered bequests, then that amount is deemed to be the entire fair market value of the trust as of that December 31. See paragraph (c)(3) of this section.

    (iv) Designation of U.S. agent—(A) In general. The trustee of an electing foreign trust must designate and authorize a U.S. person, as defined in section 7701(a)(30), to act as an agent for the trust solely for purposes of section 2801. By designating a U.S. agent, the trustee of the foreign trust agrees to provide the agent with all information necessary to comply with any information request or summons issued by the Secretary. Such information may include, without limitation, copies of the books and records of the trust, financial statements, and appraisals of trust property.

    (B) Role of designated agent. Acting as an agent for the trust for purposes of section 2801 includes serving as the electing foreign trust's agent for purposes of section 7602 (“Examination of books and witnesses”), section 7603 (“Service of summons”), and section 7604 (“Enforcement of summons”) with respect to—

    (1) Any request by the Secretary to examine records or produce testimony related to the proper identification or treatment of covered gifts or covered bequests contributed to the electing foreign trust and distributions attributable to such contributions; and

    (2) Any summons by the Secretary for records or testimony related to the proper identification or treatment of covered gifts or covered bequests contributed to the electing foreign trust and distributions attributable to such contributions.

    (C) Effect of appointment of U.S. agent. An electing foreign trust that appoints such an agent is not considered to have an office or a permanent establishment in the United States, or to be engaged in a trade or business in the United States, solely because of the agent's activities as an agent pursuant to this section.

    (4) Annual certification or filing requirement. The trustee of an electing foreign trust must file a timely Form 708 annually either to report and pay the section 2801 tax on all covered gifts and covered bequests received by the trust during the calendar year, or to certify that the electing foreign trust did not receive any covered gifts or covered bequests during the calendar year.

    (5) Duration of status as electing foreign trust—(i) In general. A valid election (one that meets all of the requirements of paragraph (d)(3) of this section) is effective as of January 1 of the calendar year for which the Form 708 on which the election is made is filed. The election, once made, applies for all calendar years until the election is terminated as described in paragraph (d)(5)(ii) of this section.

    (ii) Termination. An election to be treated as a domestic trust for purposes of section 2801 is terminated either by the failure of the foreign trust to make the annual filing, together with any payment of the section 2801 tax, as required by paragraph (d)(4) of this section, or by the failure of the foreign trust to timely pay any additional amount of section 2801 tax (in accordance with the requirements of paragraph (d)(6)(ii) of this section) with respect to recalculations described in paragraph (d)(6) of this section (a failure that results in an imperfect election). A termination, if any, is effective as of the beginning of the calendar year for which the trustee fails to make the annual filing required by paragraph (d)(4) of this section or for which the trustee fails to pay any of the amounts described in this paragraph (d)(5)(ii). In the case of a terminated election, the trustee should notify promptly each permissible distributee, as defined in paragraph (d)(3)(ii)(E) of this section, that the foreign trust's election was terminated as of January 1 of the applicable year (with the actual year of the termination being set forth in the notice), and that each U.S. recipient of a distribution made from the foreign trust on and after that date is subject to the section 2801 tax on the portion of each such distribution that is attributable to covered gifts and covered bequests. See paragraph (d)(6)(iii)(B) of this section for an additional notification requirement in the case of an imperfect election.

    (iii) Subsequent elections. If a foreign trust's election is terminated under paragraph (d)(5)(ii) of this section, the foreign trust is not prohibited from making another election in a future year, subject to the requirements of paragraph (d)(3) of this section.

    (6) Dispute as to amount of section 2801 tax owed by electing foreign trust—(i) Procedure. If the Commissioner disputes the value of a covered gift or covered bequest, or otherwise challenges the computation of the section 2801 tax, that is reported on the electing foreign trust's timely filed Form 708 for any calendar year, the Commissioner will issue a letter (but not a notice of deficiency as defined in section 6212) to the trustee of the electing foreign trust and the appointed U.S. agent that details the disputed information and the proper amount of section 2801 tax as recalculated. The foreign trust must pay the additional amount of section 2801 tax including interest and penalties, if any, in accordance with the requirements of paragraph (d)(6)(ii) of this section, on or before the due date specified in the letter to maintain its election.

    (ii) Effect of timely paying the additional section 2801 tax amount. If the trustee of the foreign trust timely pays the additional amount(s) specified in the Commissioner's letter, or such other amount as agreed to by the Commissioner, and enters into a closing agreement with the IRS as described in section 7121, then the foreign trust's election to be treated as a domestic trust under paragraph (d) of this section remains in effect. In addition, in the absence of fraud, malfeasance, or misrepresentation of a material fact, that payment, in conjunction with the closing agreement, will be deemed to render any determination of value to which the closing agreement applies as final and binding on both the IRS and the foreign trust. Thus, subsequently, the IRS will not be able to challenge the section 2801 tax due from either the foreign trust or any of its beneficiaries who are U.S. citizens or residents for the year for which that Form 708 was filed by the foreign trust, except with respect to any covered gifts or covered bequests not reported on that return, and neither the foreign trust nor any of its beneficiaries will be able to file a claim for refund with respect to section 2801 tax paid by the foreign trust on the covered gifts and covered bequests reported on that Form 708.

    (iii) Effect of failing to timely pay the additional section 2801 tax amount (imperfect election)—(A) In general. If the foreign trust fails to timely pay the additional amount of section 2801 tax with interest and penalties, if any, claimed to be due by the IRS in accordance with the requirements of paragraph (d)(6)(ii) of this section, then the foreign trust's valid election is terminated and becomes an imperfect election. The foreign trust's election is terminated, and is converted into an imperfect election, retroactively as of the first day of the calendar year for which was filed the Form 708 with respect to which the additional amount of section 2801 tax is claimed to be due by the IRS. Thus, the value the foreign trust has reported on the Form 708 and on which the trust has paid the section 2801 tax is no longer considered to be attributable to covered gifts or covered bequests when computing the section 2801 ratio described in paragraph (c)(1)(ii) of this section applicable to distributions made by the foreign trust to U.S. recipients during the calendar year for which the Form 708 was filed and thereafter. The U.S. recipients of distributions from the foreign trust, however, should take into consideration the additional value determined by the IRS, on which the foreign trust did not timely pay the section 2801 tax, when computing the section 2801 ratio to be applied to a distribution from the trust. See paragraph (c) of this section. Any disagreement with regard to that additional value will be an issue to be resolved as part of the review of that U.S. recipient's own Form 708 reporting a distribution.

    (B) Notice to permissible beneficiaries. If the trustee of the foreign trust fails to remit the additional payment of the section 2801 tax including all interest and penalties, if any, in accordance with the requirements of paragraph (d)(6)(ii) of this section, by the due date stated in the IRS letter, the trustee should notify promptly each permissible distributee, as defined in paragraph (d)(3)(ii)(E) of this section, of the amount of additional value on which the foreign trust did not timely pay the section 2801 tax as determined by the IRS and that:

    (1) The foreign trust's election was terminated as of January 1 of the applicable year (with the actual year of the termination being set forth in the notice); and

    (2) Each U.S. recipient of a distribution made from the foreign trust on and after that termination date is subject to the section 2801 tax on the portion of each such distribution attributable to covered gifts and covered bequests.

    (C) Reasonable cause. If a U.S. recipient received a distribution from such trust on or after January 1 of the year for which the election was terminated and the election became an imperfect election, provided the U.S. recipient files a Form 708 and pays the section 2801 tax within a reasonable period of time after being notified by the trustee of the foreign trust or otherwise becoming aware that a valid election was not in effect when the distribution was made, the U.S. recipient's failure to timely file and pay are due to reasonable cause and not willful neglect for purposes of section 6651. For this purpose, a reasonable period of time is not more than six months after the U.S. recipient is notified by the trustee or the U.S. recipient otherwise becomes aware that a valid election is not in effect.

    (D) Interim period. If a foreign trust's valid election is terminated and becomes an imperfect election, there is a period of time (interim period) after the effective date of the termination of the election during which both the foreign trust and its U.S. beneficiaries are likely to continue to comply with section 2801 as it applies to an electing foreign trust with a valid election in place. The interim period begins on the effective date of the termination of the foreign trust's election that resulted in an imperfect election as described in paragraph (d)(6)(iii)(A) of this section, and ends on December 31 of the calendar year immediately preceding the calendar year in which the additional section 2801 tax claimed by the IRS is due. As under the rule in paragraph (d)(6)(iii)(A) of this section regarding imperfect elections, the covered gifts and covered bequests received by the foreign trust during this interim period, which the foreign trust has reported on its timely filed Form 708 and on which the foreign trust has timely paid the section 2801 tax, are no longer considered to be covered gifts and covered bequests for purposes of computing the section 2801 ratio described in paragraph (c)(1)(ii) of this section as it applies to distributions made by non-electing foreign trusts to their U.S. beneficiaries. In addition, each distribution made by the foreign trust to a U.S. citizen or resident during this interim period must be reported on that U.S. recipient's Form 708 by applying the section 2801 ratio to that distribution. Once the interim period has ended, the foreign trust has no election in place and the rules of section 2801(e)(4)(B)(i) will apply until the foreign trust subsequently (if ever) makes another valid election to be treated as a domestic trust for purposes of section 2801.

    (7) No overpayment caused solely by virtue of defect in election. Any remittance of section 2801 tax made by a foreign trust electing to be treated as a domestic trust does not become an overpayment solely by virtue of a defect in the election. Instead, if at some subsequent time the IRS determines that the election was not in fact a valid election, then the election shall be considered valid only with respect to the covered gifts or covered bequests on which the section 2801 tax was timely paid by the foreign trust and each covered gift and covered bequest on which the section 2801 tax has been timely paid is no longer treated as a covered gift or covered bequest for purposes of determining the portion of the foreign trust attributable to covered gifts and covered bequests. See paragraphs (d)(2)(i) and (d)(6)(iii) of this section.

    (e) Examples. The provisions of this section are illustrated by the following examples.

    Example 1.

    Computation of section 2801 ratio. A and B each contribute $100,000 to a foreign trust. A (but not B) is a covered expatriate and A's contribution is a covered gift. The section 2801 ratio immediately after these two contributions is 0.50, computed as follows: The pre-contribution value of the trust ($0) times the pre-contribution section 2801 ratio (-0-), plus the current covered gift ($100,000), divided by the post-contribution fair market value of the trust ($200,000). See § 28.2801-5(c). Therefore, 50 percent of each distribution from the trust is subject to the section 2801 tax until the next contribution is made to the trust. If the trustee distributes $40,000 to C, a U.S. citizen, before the trust receives any other contributions, then $20,000 ($40,000 × 0.5) is a covered gift to C.

    Example 2.

    Computation of section 2801 ratio when multiple contributions are made to foreign trust. (i) In 2005, A, a U.S. citizen, established and funded an irrevocable foreign trust with $200,000 and reported the transfer as a completed gift. On January 1 of each of the following three years (2006 through 2008), A contributed an additional $100,000 to the foreign trust. A reported A's contributions to the foreign trust as completed gifts on timely filed Forms 709, for calendar years 2005 through 2008. On August 8, 2008, a date after the effective date of section 2801 (June 17, 2008), A expatriated and became a covered expatriate. On January 1 of a year after 2008 (Year X), A makes an additional $100,000 contribution to the trust. The aggregate $600,000 contributed to the trust by A, both before and after expatriation, are the only contributions to the trust. Each year, the trustee of the foreign trust provides beneficiary B, a U.S. citizen, with an accounting of the trust showing each receipt and disbursement of the trust during that year, including the date and amount of each contribution by A.

    (ii) The fair market value of the trust was $610,000 immediately prior to A's contribution to the trust on January 1, Year X. Therefore, upon the Year X contribution of A's first and only covered gift, the portion of the trust attributable to covered gifts and covered bequests (covered portion) changed from zero to 0.14 ([(section 2801 ratio of 0 × $610,000 fair market value pre-contribution) plus the $100,000 covered gift]/$710,000 fair market value post-contribution). See paragraph (c) of this section.

    (iii) In February of Year X, B received a distribution of $225,000 from the foreign trust. Although A contributed a total of $600,000 to the foreign trust, A contributed only $100,000 while A was a covered expatriate. Under paragraph (c) of this section, the portion of the $225,000 distribution from the foreign trust attributable to a covered gift is $31,500 ($225,000 × 0.14 (section 2801 ratio)) because the distribution is made proportionally from the covered and non-covered portions of the trust. See paragraph (c)(1) of this section. Accordingly, B received a covered gift of $31,500.

    (iv) Pursuant to the terms of the foreign trust, the trust made a terminating distribution on August 5, Year X, when B turned 35, and B received the balance of the appreciated trust, $505,000. The portion of this distribution attributable to covered gifts and covered bequests is $70,700 ($505,000 × 0.14). Therefore, B has received covered gifts from the foreign trust during Year X in the total amount of $102,200 ($31,500 + $70,700).

    Example 3.

    Termination of foreign trust election. The trustee of a foreign trust that received a covered gift makes a valid election to be treated as a domestic trust under § 28.2801-5(d) for Year 1. However, the trustee fails to file timely the Form 708 for the next year, Year 2. The foreign trust election is terminated as of January 1, Year 2, under paragraph (d)(5)(ii) of this section. Thus, any distributions made to U.S. recipients during Year 1 have a section 2801 ratio of zero and are not subject to the section 2801 tax. However, any such distributions made during Year 2 are subject to the section 2801 tax to the extent the distributions are attributable to a covered gift or covered bequest received by the trust during Year 2. Unless the trustee makes a new election as described in paragraph (d)(5)(iii) of this section, beginning in Year 2, the foreign trust's section 2801 ratio must be recomputed each time the foreign trust receives a contribution.

    Example 4.

    Imperfect election by foreign trust. (i) In Year 1, CE, a covered expatriate, gives a 20 percent limited partnership interest in a closely held business to a foreign trust created for the benefit of CE's child, A, who is a U.S. citizen. The limited partnership interest is a covered gift. The trustee of the foreign trust makes a valid election to have the trust treated as a domestic trust for purposes of section 2801, trustee timely files a Form 708, and timely pays the section 2801 tax on the reported fair market value of the covered gift ($500,000). Later in Year 1, the trust makes a $100,000 distribution to A.

    (ii) In Year 2, CE contributes $200,000 in cash to the foreign trust. The cash is a covered gift. The trustee of the foreign trust timely files a Form 708 reporting the transfer and pays the section 2801 tax. The trust does not make a distribution to any beneficiary during Year 2. Late in Year 3, the IRS disputes the reported value of the partnership interest transferred in Year 1 and determines that the proper valuation on the date of the gift was $800,000. In Year 3, the IRS issues a letter to the trustee of the foreign trust detailing its finding of the increased valuation and of the resulting additional section 2801 tax including accrued interest, if any, due on or before a later date in Year 3 specified in the letter. The foreign trust fails to pay the additional section 2801 tax liability on or before that due date.

    (iii) Under paragraph (d)(6)(iii) of this section, the foreign trust's election for Year 1 is an imperfect election; although it timely filed its return reporting the transfer and paid the tax, it failed to timely pay the additional section 2801 tax when the IRS notified the trust of an additional amount of section 2801 tax claimed to be due. Accordingly, the foreign trust's election is deemed to have terminated as of January 1 of Year 1. In computing the foreign trust's section 2801 ratio upon the receipt of the covered gift in Year 1, the $500,000 of value on which the section 2801 tax was timely paid is no longer deemed to be a covered gift. See paragraph (d)(6)(iii) of this section. When the trustee advises A of the letter from the IRS, A must file a late Form 708 reporting the portion of the Year 1 distribution attributable to covered gifts and covered bequests. Although A may owe section 2801 tax and interest, A will not owe any penalties under section 6651 as long as A files the Form 708 and pays the tax within a reasonable period of time after A receives notice of the termination of the election from the trustee of the foreign trust or otherwise becomes aware of the termination of the election. See paragraph (d)(6)(iii)(C) of this section.

    (iv) When A files the Form 708, the IRS will verify whether A treated the $300,000 undervaluation claimed by the IRS as a covered gift in computing the section 2801 ratio. As with any other item reported on that return, A has the burden to prove the value of the covered gift to the foreign trust, and the IRS may challenge that value. If A treats the $300,000 as a covered gift to the trust, under paragraph (c)(1)(ii) of this section, the section 2801 ratio after the Year 1 contribution is 0.375 ($0 + ($300,000)/$800,000)). Thus, 37.5 percent of all distributions made to A from the foreign trust during Year 1 are subject to the section 2801 tax.

    (v) The foreign trust's timely filing of the Form 708 for Year 2 and the timely payment of the section 2801 tax shown on that return is not a valid election under paragraph (d)(5)(iii) of this section because the trust did not timely pay the section 2801 tax on all covered gifts and covered bequests in prior years as required in paragraph (d)(3) of this section; that is, the tax on the additional $300,000 of value of the Year 1 transfer. However, under paragraph (d)(6)(iii)(D) of this section, because the foreign trust timely filed and paid the section 2801 tax on the Year 2 covered gift of $200,000, and the additional unpaid tax was not due until Year 3, the $200,000 amount is no longer considered a covered gift for purposes of computing the section 2801 ratio.

    Example 5.

    Subsequent election after termination of foreign trust election. The facts are the same as in Example 4. In Year 3, the foreign trust does not receive a covered gift or covered bequest. However, the trustee decides that making another election to be treated as a domestic trust would be in the best interests of the trust's beneficiaries. Accordingly, by the due date for the Form 708 for Year 3, the trustee timely files the return and pays the section 2801 tax on the portion of the trust attributable to covered gifts and covered bequests. See paragraph (d)(5)(iii) of this section. The trustee calculates the portion of the trust attributable to covered gifts and covered bequests received by the trust in prior calendar years by multiplying the fair market value of the trust on December 31, Year 2, by the section 2801 ratio in effect on that date. See paragraph (d)(3)(iii) of this section. The foreign trust is an electing foreign trust in Year 3.

    (f) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Once these regulations have been published as final regulations in the Federal Register, taxpayers may rely upon the final rules of this part for the period beginning June 17, 2008, and ending on the date preceding the date these regulations are published as final regulations in the Federal Register.

    § 28.2801-6 Special rules and cross-references.

    (a) Determination of basis. For purposes of determining the U.S. recipient's basis in property received as a covered gift or covered bequest, see sections 1015 and 1014, respectively. However, section 1015(d) does not apply to increase the basis in a covered gift to reflect the tax paid under this section. For purposes of determining a U.S. recipient's basis in property received as a covered bequest from a decedent who died during 2010 and whose executor elected under section 301(c) of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 not to have the estate tax provisions apply, see section 1022.

    (b) Generation-skipping transfer tax. Transfers made by a nonresident not a citizen of the United States (NRA transferor) are subject to generation-skipping transfer (GST) tax only to the extent those transfers are subject to federal estate or gift tax as defined in § 26.2652-1(a)(2). In applying this rule, taxable distributions from a trust and taxable terminations are subject to the GST tax only to the extent the NRA transferor's contributions to the trust were subject to federal estate or gift tax as defined in § 26.2652-1(a)(2). See § 26.2663-2. A transfer is subject to federal estate or gift tax, regardless of whether a federal estate or gift tax return reporting the transfer is timely filed and regardless of whether chapter 15 applies because of a covered expatriate's failure to timely file and pay the section 2801 tax, if applicable.

    (c) Information returns—(1) Gifts and bequests. Pursuant to section 6039F and the corresponding regulations, and to the extent provided in Notice 97-34, 1997-1 CB 422, and Form 3520, Part IV, each U.S. person (other than an organization described in section 501(c) and exempt from tax under section 501(a)) who treats an amount received from a foreign person (other than through a foreign trust) as a gift or bequest (including a covered gift or covered bequest) must report such gift or bequest on Part IV of Form 3520 if the value of the total of such gifts and bequests exceeds a certain threshold. A U.S. citizen or resident, as defined in § 28.2801-2(b) but not including a foreign trust that elects to be treated as a domestic trust, is included within the definition of a U.S. person for purposes of section 6039F.

    (2) Foreign trust distributions. Pursuant to section 6048(c) and the corresponding regulations, and to the extent provided in Notice 97-34 and Part III of Form 3520, U.S. persons must report each distribution received during the taxable year from a foreign trust on Part III of Form 3520. Under section 6677(a), a penalty of the greater of $10,000 or 35 percent of the gross value of the distribution may be imposed on a U.S. person who fails to timely report the distribution. A U.S. citizen or resident as defined in § 28.2801-2(b), but not including a foreign trust that elects to be treated as a domestic trust, generally is required to report such a distribution under section 6048(c).

    (3) Penalties and use of information. The filing of Form 706, Form 706-NA, Form 708, or Form 709 does not relieve a U.S. citizen or resident who is required to file Form 3520 from any penalties imposed under section 6677(a) for failure to comply with section 6048(c), or from any penalties imposed under section 6039F(c) for failure to comply with section 6039F(a). Pursuant to section 6039F(c)(1)(A), the Secretary may determine the tax consequences of the receipt of a purported foreign gift or bequest.

    (d) Application of penalties—(1) Accuracy-related penalties on underpayments. The section 6662 accuracy-related penalty may be imposed upon any underpayment of tax attributable to—

    (i) A substantial valuation understatement under section 6662(g) of a covered gift or covered bequest; or

    (ii) A gross valuation misstatement under section 6662(h) of a covered gift or covered bequest.

    (2) Penalty for substantial and gross valuation misstatements attributable to incorrect appraisals. The section 6695A penalty for substantial and gross valuation misstatements attributable to incorrect appraisals may be imposed upon any person who prepares an appraisal of the value of a covered gift or covered bequest.

    (3) Penalty for failure to file a return and to pay tax. See section 6651 for the application of a penalty for the failure to file Form 708, or the failure to pay the section 2801 tax.

    (e) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Once these regulations have been published as final regulations in the Federal Register, taxpayers may rely upon the final rules of this part for the period beginning June 17, 2008, and ending on the date preceding the date these regulations are published as final regulations in the Federal Register.

    § 28.2801-7 Determining responsibility under section 2801.

    (a) Responsibility of recipients of gifts and bequests from expatriates. It is the responsibility of the taxpayer (in this case, the U.S. citizen or resident receiving a gift or bequest from an expatriate or a distribution from a foreign trust funded at least in part by an expatriate) to ascertain the taxpayer's obligations under section 2801, which includes making the determination of whether the transferor is a covered expatriate and whether the transfer is a covered gift or covered bequest.

    (b) Disclosure of return and return information—(1) In general. In certain circumstances, the Internal Revenue Service (IRS) may be permitted, upon request of a U.S. citizen or resident in receipt of a gift or bequest from an expatriate, to disclose to the U.S. citizen or resident return or return information of the donor or decedent expatriate that may assist the U.S. citizen or resident in determining whether the donor or decedent was a covered expatriate and whether the transfer was a covered gift or covered bequest. The U.S. citizen or resident may not rely upon this information, however, if the U.S. citizen or resident knows, or has reason to know, that the information received from the IRS is incorrect. The circumstances under which such information may be disclosed to a U.S. citizen or resident, and the procedures for requesting such information from the IRS, will be as provided by publication in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(b)).

    (2) Rebuttable presumption. Unless a living donor expatriate authorizes the disclosure of his or her relevant return or return information to the U.S. citizen or resident receiving the gift, there is a rebuttable presumption that the donor is a covered expatriate and that the gift is a covered gift. A taxpayer who reasonably concludes that a gift or bequest is not subject to section 2801 may file a protective Form 708 in accordance with § 28.6011-1(b) to start the period for the assessment of any section 2801 tax.

    (c) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Once these regulations have been published as final regulations in the Federal Register, taxpayers may rely upon the final rules of this part for the period beginning June 17, 2008, and ending on the date preceding the date these regulations are published as final regulations in the Federal Register.

    § 28.6001-1 Records required to be kept.

    (a) In general. Every U.S. recipient as defined in § 28.2801-2(e) subject to taxation under chapter 15 of the Internal Revenue Code must keep, for the purpose of determining the total amount of covered gifts and covered bequests, such permanent books of account or records as are necessary to establish the amount of that person's aggregate covered gifts and covered bequests, and the other information required to be shown on Form 708, “United States Return of Tax for Gifts and Bequests from Covered Expatriates.” All documents and vouchers used in preparing the Form 708 must be retained by the person required to file the return so as to be available for inspection whenever required.

    (b) Supplemental information. In order that the Internal Revenue Service (IRS) may determine the correct tax, the U.S. recipient as defined in § 28.2801-2(e) must furnish such supplemental information as may be deemed necessary by the IRS. Therefore, the U.S. recipient must furnish, upon request, copies of all documents relating to the covered gift or covered bequest, appraisals of any items included in the aggregate amount of covered gifts and covered bequests, copies of balance sheets and other financial statements obtainable by that person relating to the value of stock or other property constituting the covered gift or covered bequest, and any other information obtainable by that person that may be necessary in the determination of the tax. See section 2801 and the corresponding regulations. For every policy of life insurance listed on the return, the U.S. recipient must procure a statement from the insurance company on Form 712 and file it with the IRS office where the return is filed. If specifically requested by the Commissioner, the insurance company must file this statement directly with the Commissioner.

    § 28.6011-1 Returns.

    (a) Return required. The return of any tax to which this part 28 applies must be made on Form 708, “United States Return of Tax for Gifts and Bequests from Covered Expatriates,” according to the instructions applicable to the form. With respect to each covered gift and covered bequest received during the calendar year, the U.S. recipient as defined in § 28.2801-2(e) must include on Form 708 the information set forth in § 25.6019-4. The U.S. recipient must file Form 708 for each calendar year in which a covered gift or covered bequest is received. The U.S. recipient who receives the covered gift or covered bequest during the calendar year is the person required to file the return. A U.S. recipient is not required to file such form, however, for a calendar year in which the total fair market value of all covered gifts and covered bequests received by that person during that calendar year is less than or equal to the section 2801(c) amount, which is the dollar amount of the per-donee exclusion in effect under section 2503(b) for that calendar year.

    (b) Protective return. (i) A U.S. citizen or resident (as defined in § 28.2801-2(b)) that receives a gift or bequest from an expatriate and reasonably concludes that the gift or bequest is not a covered gift or a covered bequest from a covered expatriate may file a protective Form 708 in order to start the period for assessment of tax. To be a protective Form 708, it must provide all of the information otherwise required on Form 708, along with an affidavit, signed under penalties of perjury, setting forth the information on which that U.S. citizen or resident has relied in concluding that the donor or decedent, as the case may be, was not a covered expatriate, or that the transfer was not a covered gift or a covered bequest, as well as that person's efforts to obtain other information that might be relevant to these determinations. If that U.S. citizen or resident has obtained information from the Internal Revenue Service (IRS) (as described in § 28.2801-7(b)(1)), it must attach a copy of such information. The U.S. citizen or resident also must attach a copy of a completed Form 3520, Part III, for all trust distributions, or Part IV for all gifts and bequests, if applicable. If the return meets the requirements of this paragraph (b)(i), and if the IRS does not assess a section 2801 tax liability for that tax year within the limitations period for assessment stated in section 6501, the IRS may not later assess a section 2801 tax with regard to any transfer reported on that Form 708.

    (ii) A U.S. citizen or resident who receives a gift or bequest from an expatriate and who files a protective Form 708 meeting the requirements of paragraph (b)(i) of this section showing no tax due, absent fraud or other special factors, will not be subject to any additions to tax for late filing under section 6651(a)(1) or for late payment under section 6651(a)(2), even if the gift or bequest is determined to be a covered gift or covered bequest from a covered expatriate within the limitations period for assessment stated in section 6501. Notwithstanding the foregoing, however, if a U.S. citizen or resident knows, or has reason to know, that the information provided by the IRS or any other source is incorrect or incomplete, that U.S. citizen or resident may not rely on that information, and except as provided in the preceding paragraph (b)(i) of this section, may be subject to all of the generally applicable provisions governing assessment of tax, collection of tax, and penalties. See sections 6501, 6502, 6651 and 6662.

    (c) Effective/applicability dates. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6060-1 Reporting requirements for tax return preparers.

    (a) In general. A person that employs one or more signing tax return preparers to prepare a return or claim for refund of any tax to which this part 28 applies, other than for the person, at any time during a return period, must satisfy the recordkeeping and inspection requirements in the manner stated in § 1.6060-1 of this chapter.

    (b) Effective/applicability date. This section applies to returns and claims for refund filed on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6071-1 Time for filing returns.

    (a) In general—(1) A U.S. recipient as defined in § 28.2801-2(e) must file Form 708, “U.S. Return of Gifts or Bequests from Covered Expatriates,” on or before the fifteenth day of the eighteenth calendar month following the close of the calendar year in which the covered gift or covered bequest was received. Notwithstanding the preceding sentence, the due date for a Form 708 reporting a covered bequest that is not received on the decedent's date of death under § 28.2801-4(d)(3) is the later of—

    (i) The fifteenth day of the eighteenth calendar month following the close of the calendar year in which the covered expatriate died; or

    (ii) The fifteenth day of the sixth month of the calendar year following the close of the calendar year in which the covered bequest was received.

    (2) If a U.S. recipient receives multiple covered gifts and covered bequests during the same calendar year, the rule in paragraph (a)(1) of this section may result in different due dates and the filing of multiple returns reporting the different transfers received during the same calendar year.

    (b) Migrated foreign trust. The due date for a Form 708 for the year in which a foreign trust becomes a domestic trust is the fifteenth day of the sixth month of the calendar year following the close of the calendar year in which the foreign trust becomes a domestic trust.

    (c) Certain returns by foreign trusts—(1) Election under § 28.2801-5(d) for calendar year in which no covered gift or covered bequest received. A foreign trust making an election to be treated as a domestic trust for purposes of section 2801 under § 28.2801-5(d) for a calendar year in which the foreign trust received no covered gifts or covered bequests must file a Form 708 on or before the fifteenth day of the sixth month of the calendar year following the close of the calendar year for which the election is made.

    (2) Certification to maintain election under § 28.2801-5(d) for calendar year in which no covered gift or covered bequest received. An electing foreign trust filing a Form 708 to certify that the electing foreign trust did not receive any covered gifts or covered bequests during the calendar year must file the Form 708 on or before the fifteenth day of the sixth month of the calendar year following the close of that calendar year. See § 28.2801-5(d)(4).

    (d) Transition period. The Form 708 reporting covered gifts or covered bequests received on or after June 17, 2008, and before the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register, will be due within a reasonable period of time after the date of that publication as specified in the final regulations, but in no event before the due date of the first return required under the final regulations for covered gifts or covered bequests received after the final regulations are published.

    (e) Effective/applicability dates. This section applies to each Form 708 filed on or after the date on which a Treasury decision is published adopting these rules as final regulations in the Federal Register.

    § 28.6081-1 Automatic extension of time for filing returns reporting gifts and bequests from covered expatriates.

    (a) In general. A U.S. recipient as defined in § 28.2801-2(e) may request an extension of time to file a Form 708, “U.S. Return of Gifts or Bequests from Covered Expatriates,” by filing Form 7004, “Application for Automatic Extension of Time To File Certain Business Income Tax, Information, and Other Returns.” A U.S. recipient must include on Form 7004 an estimate of the amount of section 2801 tax liability and must file Form 7004 with the Internal Revenue Service office designated in the Form's instructions (except as provided in § 301.6091-1(b) of this chapter for hand-carried documents).

    (b) Automatic extension. A U.S. recipient as defined in § 28.2801-2(e) will be allowed an automatic six-month extension of time beyond the date prescribed in § 28.6071-1 to file Form 708 if Form 7004 is filed on or before the due date for filing Form 708 in accordance with the procedures under paragraph (a) of this section.

    (c) No extension of time for the payment of tax. An automatic extension of time for filing a return granted under paragraph (b) of this section will not extend the time for payment of any tax due with such return.

    (d) Penalties. See section 6651 regarding penalties for failure to file the required tax return or failure to pay the amount shown as tax on the return.

    (e) Effective/applicability dates. This section applies to applications for an extension of time to file Form 708 filed on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6091-1 Place for filing returns.

    A U.S. recipient as defined in § 28.2801-2(e) must file Form 708, “U.S. Return of Gifts and Bequests from Covered Expatriates,” with the Internal Revenue Service office designated in the instructions applicable to the Form.

    § 28.6101-1 Period covered by returns.

    See § 28.6011-1 for the rules relating to the period covered by the return.

    § 28.6107-1 Tax return preparer must furnish copy of return or claim for refund to taxpayer and must retain a copy or record.

    (a) In general. A person who is a signing tax return preparer of any return or claim for refund of any tax to which this part 28 applies must furnish a completed copy of the return or claim for refund to the taxpayer and retain a completed copy or record in the manner stated in § 1.6107-1 of this chapter.

    (b) Effective/applicability dates. This section applies to returns and claims for refund filed on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6109-1 Tax return preparers furnishing identifying numbers for returns or claims for refund.

    (a) In general. Each tax return or claim for refund of the tax under chapter 15 of subtitle B of the Internal Revenue Code prepared by one or more signing tax return preparers must include the identifying number of the preparer required by § 1.6695-1(b) of this chapter to sign the return or claim for refund in the manner stated in § 1.6109-2 of this chapter.

    (b) Effective/applicability date. This section applies on and after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6151-1 Time and place for paying tax shown on returns.

    The tax due under this part 28 must be paid at the time prescribed in § 28.6071-1 for filing the return, and at the place prescribed in § 28.6091-1 for filing the return.

    § 28.6694-1 Section 6694 penalties applicable to return preparer.

    (a) In general. For general rules regarding section 6694 penalties applicable to preparers of returns or claims for refund of the tax under chapter 15 of subtitle B of the Internal Revenue Code (Code), see § 1.6694-1 of this chapter.

    (b) Effective/applicability date. This section applies to returns and claims for refund filed, and advice provided, on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6694-2 Penalties for understatement due to an unreasonable position.

    (a) In general. A person who is a tax return preparer of any return or claim for refund of any tax under chapter 15 of subtitle B of the Code is subject to penalties under section 6694(a) in the manner stated in § 1.6694-2 of this chapter.

    (b) Effective/applicability date. This section applies to returns and claims for refund filed, and advice provided, on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6694-3 Penalty for understatement due to willful, reckless, or intentional conduct.

    (a) In general. A person who is a tax return preparer of any return or claim for refund of any tax under chapter 15 of subtitle B of the Code is subject to penalties under section 6694(b) in the manner stated in § 1.6694-3 of this chapter.

    (b) Effective/applicability date. This section applies to returns and claims for refund filed, and advice provided, on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6694-4 Extension of period of collection when tax return preparer pays 15 percent of a penalty for understatement of taxpayer's liability and certain other procedural matters.

    (a) In general. For rules relating to the extension of the period of collection when a tax return preparer who prepared a return or claim for refund of tax under chapter 15 of subtitle B of the Code pays 15 percent of a penalty for understatement of taxpayer's liability, and for procedural matters relating to the investigation, assessment, and collection of the penalties under section 6694(a) and (b), the rules under § 1.6694-4 of this chapter apply.

    (b) Effective/applicability date. This section applies to returns and claims for refund filed, and advice provided, on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6695-1 Other assessable penalties with respect to the preparation of tax returns for other persons.

    (a) In general. A person who is a tax return preparer of any return or claim for refund of any tax under chapter 15 of subtitle B of the Internal Revenue Code (Code) is subject to penalties for failure to furnish a copy to the taxpayer under section 6695(a) of the Code, failure to sign the return under section 6695(b) of the Code, failure to furnish an identification number under section 6695(c) of the Code, failure to retain a copy or list under section 6695(d) of the Code, failure to file a correct information return under section 6695(e) of the Code, and negotiation of a check under section 6695(f) of the Code, in the manner stated in § 1.6695-1 of this chapter.

    (b) Effective/applicability date. This section applies to returns and claims for refund filed on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.6696-1 Claims for credit or refund by tax return preparers and appraisers.

    (a) In general. For rules regarding claims for credit or refund by a tax return preparer who prepared a return or claim for refund for any tax under chapter 15 of subtitle B of the Internal Revenue Code (Code), or by an appraiser that prepared an appraisal in connection with such a return or claim for refund under section 6695A of the Code, the rules under § 1.6696-1 of this chapter will apply.

    (b) Effective/applicability date. This section applies to returns and claims for refund filed, appraisals, and advice provided, on or after the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

    § 28.7701-1 Tax return preparer.

    For the definition of the term tax return preparer, see § 301.7701-15 of this chapter.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2015-22574 Filed 9-9-15; 8:45 am] BILLING CODE 4830-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2009-0805; FRL-9933-66-Region 5] Wisconsin; Disapproval of Infrastructure SIP With Respect to Oxides of Nitrogen as a Precursor to Ozone Provisions for the 2006 PM2.5 NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to disapprove an element of State Implementation Plan (SIP) submissions from Wisconsin regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM2.5) National Ambient Air Quality Standard (NAAQS). 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. This action pertains specifically to an infrastructure requirement for states to correctly address oxides of nitrogen (NOX) as a precursor to ozone in their respective prevention of significant deterioration (PSD) programs.

    DATES:

    Comments must be received on or before October 13, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0805 by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (312) 408-2279.

    4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Instructions: Direct your comments to Docket ID. EPA-R05-OAR-2009-0805. 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.

    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 U.S. Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Sarah Arra, Environmental Scientist, at (312) 886-9401, before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What should I consider as I prepare my comments for EPA? II. What is the background of this SIP submission? III. What is EPA's review of this SIP submission? IV. What action is EPA taking? V. Statutory and Executive Order Reviews. I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:

    1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

    2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

    3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

    4. Describe any assumptions and provide any technical information and/or data that you used.

    5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

    6. Provide specific examples to illustrate your concerns, and suggest alternatives.

    7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    8. Make sure to submit your comments by the comment period deadline identified.

    II. What is the background of this SIP submission?

    This rulemaking addresses a January 24, 2011, submission supplemented on June 29, 2012, from the Wisconsin Department of Natural Resources (WDNR) intended to address all applicable infrastructure requirements for the 2006 PM2.5 NAAQS.

    The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

    This specific rulemaking is only taking action on a specific requirement of PSD, NOX as a precursor to ozone, which is a component under the infrastructure elements described in CAA sections 110(a)(2)(C), (D)(i)(II), and (J). The majority of the other infrastructure elements were approved in an October 29, 2012 (77 FR 65478) rulemaking.

    III. What is EPA's review of this SIP submission?

    On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 Memo). As noted in the 2013 Memo, pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. WDNR provided public comment opportunities on both its January 24, 2011 and October 29, 2012 submittals. EPA is also soliciting comments on the specific requirement we are evaluating in this proposed rulemaking. WDNR provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in section 110(a)(2) for the 2006 PM2.5 NAAQS, as applicable. The following review only evaluates the state's submissions for PSD provisions that explicitly identify NOX as a precursor to ozone in the PSD program.

    EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (see 70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOx as a precursor to ozone (70 FR 71612 at 71679, 71699-71700). This requirement was codified in 40 CFR 51.166.

    The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including those identifying NOX as a precursor to ozone, by June 15, 2007 (see 70 FR 71612 at 71683, November 29, 2005).

    During the comment period following the proposed approval for the infrastructure requirements of the 1997 ozone and PM2.5 NAAQS (76 FR 23757), two commenters observed that although EPA proposed to approve Wisconsin's infrastructure SIP as meeting the correct requirements for NOx as a precursor to ozone in the State's PSD program, Wisconsin's PSD SIP does not contain the most recent PSD program revisions required by EPA for this purpose. A subsequent review of Wisconsin's PSD SIP indicated that the commenters were correct in their assertion. Specifically, Wisconsin had not made necessary revisions to its PSD program with respect to the identification of NOX as a precursor to ozone, consistent with the explicit requirements of the Phase 2 Rule. This led EPA to disapprove Wisconsin's infrastructure SIP in June 2012 for this narrow portion of section 110(a)(2)(C) with respect to the 1997 ozone and PM2.5 (77 FR 35870).

    This final disapproval triggered the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the effective date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan revision before the Administrator promulgates such FIP. Wisconsin has taken multiple steps to address NOX as a precursor to ozone in its PSD rules, starting in June 2012 with a note in rule. The state followed up with rule changes, effective August 2014, and SIP approved on October 6, 2014. (79 FR 60064) Prior to the effective date of the August 2014 rules, four additional areas requiring updated language were identified by EPA. Wisconsin was too far in the rule process to add additional changes at that point. Wisconsin immediately started a new rule package to address these additional areas, but these changes will not be effective until approximately August 2016 due to the length of the administrative rule process in Wisconsin.

    In our initial rulemaking on Wisconsin's 2006 PM2.5 infrastructure SIP, we did not take action on this provision because of our previous disapproval. However, a proposed consent decree 1 between the Sierra Club and EPA requires EPA to take action on this portion of Wisconsin's submittal by November 30, 2015. Today's disapproval does not trigger a new FIP clock because the missing provisions are the same as those disapproved in the 1997 ozone and PM2.5 action. The evaluation of a state's PSD program is a requirement under the elements described in section 110 (a)(2)(C) and (J), and the most common way to comply with section 110(a)(2)(D)(i)(II). Therefore, EPA is proposing to narrowly disapprove the PSD provision of NOX as a precursor to ozone in the PSD portion of these three elements.

    1 Case 3:12-cv-06472-CRB, filed on January 21, 2015.

    IV. What action is EPA taking?

    EPA is proposing to narrowly disapprove portions of a submission from Wisconsin certifying that its current SIP is sufficient to meet required infrastructure elements. Specifically, EPA is proposing to disapprove the NOX as a precursor to ozone provisions for the PSD portions of infrastructure elements under CAA sections 110(a)(2)(C), (D)(i)(II), and (J) for the 2006 PM2.5 NAAQS.

    V. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

    Paperwork Reduction Act

    This rulemaking does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    Regulatory Flexibility Act

    This action merely proposes to disapprove state law as not meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

    Unfunded Mandates Reform Act

    Because this rulemaking proposes to disapprove pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

    Executive Order 13132: Federalism

    This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to disapprove a state rule, and does not alter the relationship or the distribution of power and responsibilities established in the CAA.

    Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and would not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it proposes to disapprove a state rule.

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

    Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

    National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

    Dated: August 28, 2015. Susan Hedman, Regional Administrator, Region 5.
    [FR Doc. 2015-22863 Filed 9-9-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2015-0198; FRL-9933-38-Region 1] Approval and Promulgation of Air Quality Implementation Plans; Connecticut; Infrastructure State Implementation Plan Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) submissions from Connecticut regarding the infrastructure requirements of Clean Air Act (CAA or Act) for the 2008 lead (Pb), 2008 8-hr ozone, 2010 nitrogen dioxide (NO2), and 2010 sulfur dioxide (SO2) National Ambient Air Quality Standards (NAAQS). EPA is also proposing to convert conditional approvals for several infrastructure requirements for the 1997 8-hour ozone NAAQS and for the 1997 and 2006 fine particle (PM2.5) NAAQS to full approval under the CAA. Furthermore, we are proposing to newly conditionally approve elements of Connecticut's infrastructure requirements of the Clean Air Act regarding prevention of significant deterioration requirements to treat nitrogen oxides as a precursor to ozone and to establish a minor source baseline date for PM2.5 emissions. Lastly, EPA is proposing to approve three statutes submitted by Connecticut in support of their demonstration that the infrastructure requirements of the CAA have been met.

    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.

    DATES:

    Comments must be received on or before October 13, 2015.

    ADDRESSES:

    Submit your comments, identified by the appropriate Docket ID number as indicated in the instructions section below, by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (617) 918-0047.

    4. Mail: Anne Arnold, Manager, Air Quality Planning Unit, Air Programs Branch, Mail Code OEP05-2, U.S. Environmental Protection Agency, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109-3912.

    5. Hand Delivery: Anne Arnold, Manager, Air Quality Planning Unit, Air Programs Branch, Mail Code OEP05-2, U.S. Environmental Protection Agency, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109-3912. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Instructions: Direct your comments to Docket ID. EPA-R01-OAR-2015-0198. 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.

    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 at http://www.regulations.gov or in hard copy at U.S. Environmental Protection Agency, EPA New England Regional Office, Air Programs Branch, 5 Post Office Square, Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Alison Simcox, Environmental Scientist, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109-3912; (617) 918-1684; [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What should I consider as I prepare my comments for EPA? II. What is the background of these State Implementation Plan submissions? A. What Connecticut SIP submissions does this rulemaking address? B. Why did the state make these SIP submissions? C. What is the scope of this rulemaking? III. What guidance is EPA using to evaluate these SIP submissions? IV. What is the result of EPA's review of these SIP submissions? A. Section 110(a)(2)(A)—Emission Limits and Other Control Measures B. Section 110(a)(2)(B)—Ambient Air Quality Monitoring/Data System C. Section 110(a)(2)(C)—Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources i. Sub-Element 1: Enforcement of SIP measures ii. Sub-Element 2: Prevention of Significant Deterioration Program for Major Sources and Major Modifications iii. Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor Modifications D. Section 110(a)(2)(D)—Interstate Transport i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)—Contribute to Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2) ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)—PSD (Prong 3) iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)—Visibility Protection (Prong 4) iv. Sub-Element 4: Section 110(a)(2)(D)(ii)—Interstate Pollution Abatement v. Sub-Element 5: Section 110(a)(2)(D)(ii)—International Pollution Abatement E. Section 110(a)(2)(E)—Adequate Resources F. Section 110(a)(2)(F)—Stationary Source Monitoring System G. Section 110(a)(2)(G)—Emergency Powers H. Section 110(a)(2)(H)—Future SIP Revisions I. Section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D J. Section 110(a)(2)(J)—Consultation with Government Officials; Public Notifications; PSD; Visibility Protection i. Sub-Element 1: Consultation With Government Officials ii. Sub-Element 2: Public notification iii. Sub-Element 3: PSD iv. Sub-Element 4: Visibility Protection K. Section 110(a)(2)(K)—Air Quality Modeling/Data L. Section 110(a)(2)(L)—Permitting Fees M. Section 110(a)(2)(M)—Consultation/Participation by Affected Local Entities N. Connecticut Statutes for Inclusion into the Connecticut SIP V. What action is EPA taking? VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:

    1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number). 2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the comment period deadline identified. II. What is the background of these State Implementation Plan submissions? A. What Connecticut SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the Connecticut Department of Energy and Environmental Protection (CT DEEP). The state submitted its infrastructure SIP for each NAAQS on the following dates: 2008 Pb—October 13, 2011; 2008 ozone—December 28, 2012; 2010 NO2—January 2, 2013; and, 2010 SO2—May 30, 2013. This rulemaking also addresses certain infrastructure SIP elements for the 1997 and 2006 PM2.5 1 NAAQS for which EPA previously issued a conditional approval. See 77 FR 63228 (October 16, 2012). The state submitted these infrastructure SIPs on September 4, 2008, and September 18, 2009, respectively. Lastly, this rulemaking addresses one infrastructure SIP element for the 1997 8-hour ozone NAAQS for which EPA previously issued a conditional approval. See 76 FR 40248 (July 8, 2011). The state submitted this infrastructure SIP on December 28, 2007.

    1 PM2.5 refers to particulate matter of 2.5 microns or less in diameter, oftentimes referred to as “fine” particles.

    B. Why did the state make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for the NAAQS already meet those requirements.

    EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, EPA issued an additional guidance document pertaining to the 2006 PM2.5 NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (2009 Memo), followed by the October 14, 2011, “Guidance on infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Memo). Most recently, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013 (2013 Memo). The SIP submissions referenced in this rulemaking pertain to the applicable requirements of section 110(a)(1) and (2) and address the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, and to elements of Connecticut's infrastructure SIP submittals for the 1997 PM2.5 and 2006 PM2.5 NAAQS which we previously conditionally approved. See 77 FR 63228 (October 16, 2012). To the extent that the PSD program is comprehensive and non-NAAQS specific, a narrow evaluation of other NAAQS, such as the 1997 8-hour ozone NAAQS, will be included in the appropriate sections.

    C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Connecticut that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Additionally, we are proposing to convert conditional approvals for several infrastructure requirements for the 1997 8-hour ozone NAAQS (see 76 FR 40248 (July 8, 2011)) and for the 1997 and 2006 PM2.5 NAAQS (see 77 FR 63228 (October 16, 2012)) to full approval, proposing approval of three statutes submitted by Connecticut that support the infrastructure SIP submittals, and proposing to conditionally approve certain aspects of the infrastructure SIP which pertain to the State's PSD program.

    The requirement for states to make a SIP submission of this type arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these sections, each state must submit a SIP that provides for the implementation, maintenance, and enforcement of each primary or secondary NAAQS. States must make such SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a new or revised NAAQS.” This requirement is triggered by the promulgation of a new or revised NAAQS and is not conditioned upon EPA's taking any other action. Section 110(a)(2) includes the specific elements that “each such plan” must address.

    EPA commonly refers to such 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 planning requirements of part D of title I of the CAA.

    This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (“SSM” emissions) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas separately. A detailed history, interpretation, and rationale for EPA's approach to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” See 79 FR 27241 at 27242-27245 (May 13, 2014).

    III. What guidance is EPA using to evaluate these SIP submissions?

    EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. Historically, EPA has elected to use non-binding guidance documents to make recommendations for states' development and EPA review of 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. EPA guidance applicable to these infrastructure SIP submissions is embodied in several documents. Specifically, attachment A of the 2007 Memo (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. The 2009 Memo provides additional guidance for certain elements regarding the 2006 PM2.5 NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects of infrastructure SIPs that are not NAAQS specific.

    IV. What is the result of EPA's review of these SIP submissions?

    Pursuant to section 110(a), and as noted in the 2011 Memo and the 2013 Memo, states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. CT DEEP held public hearings for each infrastructure SIP on the following dates: 2008 Pb—September 20, 2011; 2008 ozone—December 20, 2012; 2010 NO2—December 20, 2012; and, 2010 SO2—May 1, 2013. Connecticut received comments from EPA on each of its proposed infrastructure SIPs, and also received comments from a U.S. Army Regulatory Affairs Specialist on its proposed ozone and NO2 infrastructure SIPs, and from a consultant with Enhesa in Washington, DC on its proposed SO2 infrastructure SIP. EPA is also soliciting comment on our evaluation of the state's infrastructure SIP submissions in this notice of proposed rulemaking. Connecticut provided detailed synopses of how various components of its SIP meet each of the requirements in section 110(a)(2) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, as applicable. The following review evaluates the state's submissions in light of section 110(a)(2) requirements and relevant EPA guidance. The review also evaluates certain infrastructure requirements for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS for which EPA previously issued conditional approvals. See 76 FR 40248 (July 8, 2011) and 77 FR 63228 (October 16, 2012.)

    A. Section 110(a)(2)(A)—Emission Limits and Other Control Measures

    This section requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.2 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.

    2 See, e.g., EPA's final rule on “National Ambient Air Quality Standards for Lead.” 73 FR 66964, 67034 (Nov. 12, 2008).

    Connecticut Public Act No. 11-80 established the Connecticut Department of Energy and Environmental Protection (CT DEEP), and Connecticut General Statutes (CGS) Section 22a-6(a)(1) provides the Commissioner of CT DEEP authority to adopt, amend or repeal environmental standards, criteria and regulations. It is under this general grant of authority that the Commissioner has adopted emissions standards and control measures for a variety of sources and pollutants. Connecticut also has SIP-approved provisions for specific pollutants. For example, CT DEEP has adopted primary and secondary ambient air quality standards for each of these pollutants in Regulations of Connecticut State Agencies (RCSA) Section 22a-174-24 as follows: For SO2, Section 22a-174-24(d); for PM2.5, Section 22a-174-24(f); for ozone, Section 22a-174-24(i); for NO2, 22a-174-24(k); and for lead, Section 22a-174-24(l). As noted in EPA's approval of Connecticut's Section 22a-174-24, Ambient Air Quality Standards, on June 24, 2015 (80 FR 36242), Connecticut's standards are consistent with the current federal NAAQS. Therefore, EPA proposes that Connecticut meets the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    In addition, we previously issued a conditional approval for Connecticut's infrastructure SIP submittal made for the 1997 and 2006 PM2.5 NAAQS because portions of Connecticut's section 22a-174-24, Ambient Air Quality Standards were outdated. See 77 FR 63228 (October 16, 2012). However, as noted in our June 24, 2014 action mentioned above, Connecticut has revised their standards and they are now consistent with the federal NAAQS. In light of this, we propose to convert the conditional approval for this infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS (see 77 FR 63228 (October 16, 2012)) to full approval. As previously noted, EPA is not proposing to approve or disapprove any existing state provisions or rules related to SSM or director's discretion in the context of section 110(a)(2)(A).

    B. Section 110(a)(2)(B)—Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

    CT DEEP continues to operate a monitoring network, and EPA approved the state's 2015 Annual Air Monitoring Network Plan for PM2.5, Pb, ozone, NO2, and SO2 on July 10, 2015. Furthermore, CT DEEP populates AQS with air quality monitoring data in a timely manner, and provides EPA with prior notification when considering a change to its monitoring network or plan. EPA proposes that CT DEEP has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    C. Section 110(a)(2)(C)—Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.

    The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and, (iii) permitting program for minor sources and minor modifications. A discussion of GHG permitting and the “Tailoring Rule” 3 is included within our evaluation of the PSD provisions of Connecticut's submittals.

    3 In EPA's April 28, 2011 proposed rulemaking for infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS, we stated that each state's PSD program must meet applicable requirements for evaluation of all regulated NSR pollutants in PSD permits (see 76 FR 23757 at 23760). This view was reiterated in EPA's August 2, 2012 proposed rulemaking for infrastructure SIPs for the 2006 PM2.5 NAAQS (see 77 FR 45992 at 45998). In other words, if a state lacks provisions needed to adequately address Pb, NOX as a precursor to ozone, PM2.5 precursors, PM2.5 and PM10 condensables, PM2.5 increments, or the Federal GHG permitting thresholds, the provisions of section 110(a)(2)(C) requiring a suitable PSD permitting program must be considered not to be met irrespective of the NAAQS that triggered the requirement to submit an infrastructure SIP, including the 2008 Pb NAAQS.

    i. Sub-Element 1: Enforcement of SIP Measures

    CT DEEP staffs and implements an enforcement program pursuant to CGS section 22a. Specifically, CGS section 22a-6 authorizes the Commissioner of CT DEEP to inspect and investigate to ascertain whether violations of any statute, regulation, or permit may have occurred and to impose civil penalties. CGS section 22a-171 requires the Commissioner to “adopt, amend, repeal, and enforce regulations . . . and do any other act necessary to enforce the provisions of” CGS sections 22a-170 through 22a-206, which provide CT DEEP with the authority to, among other things, enforce its regulations, issue orders to correct violations of regulations or permits, impose state administrative penalties, and seek judicial relief. EPA proposes that Connecticut has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    ii. Sub-Element 2: Prevention of Significant Deterioration Program for Major Sources and Major Modifications

    Prevention of significant deterioration (PSD) permitting requirements apply to new major sources or major modifications made to major sources, for pollutants where the area in which the source is located is in attainment with, or unclassifiable with regard to, the relevant NAAQS. CT DEEP's EPA-approved PSD rules in RCSA sections 22a-174-1, 22a-174-2a, and 22a-174-3a contain provisions that address the majority of the applicable infrastructure SIP requirements related to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOX as a precursor to ozone (see 70 FR 71612 at 71679, 71699-71700 (November 29, 2005)). This requirement was codified in 40 CFR 51.166, and requires that states submit SIP revisions incorporating the requirements of the rule, including provisions that would treat nitrogen oxides (NOX) as a precursor to ozone. These SIP revisions were to have been submitted to EPA by states by June 15, 2007. See 70 FR 71612 at 71683 (November 29, 2005).

    Connecticut's PSD rules do not currently contain the provisions needed to ensure that NOX be treated as a precursor to ozone, and the State's PSD rules must be changed in the future to meet this requirement. To correct this deficiency, the CT DEEP has committed, by letter dated August 5, 2015, to submit for EPA approval into the SIP provisions that meet the requirements at 40 CFR 51.166(b)(1) and (b)(2) relating to the requirement to treat NOX as a precursor pollutant to ozone. Accordingly, as we articulate further on in our discussion of this sub-element, while the majority of Connecticut's submittals pertaining to section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, 1997 PM2.5, and 2006 PM2.5 NAAQS are consistent with the federal requirements, we are proposing to conditionally approve Connecticut's PSD regulations as to those specific regulatory provisions that will need to be amended by Connecticut in order to treat NOX emissions as precursor emissions to ozone formation.

    On October 20, 2010 (75 FR 64864), EPA issued a final rule entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM2.5, including adding the required elements for PM2.5 into a state's existing system of “increment analysis,” which is the mechanism used in the PSD permitting program to estimate significant deterioration of ambient air quality for a pollutant in relation to new source construction or modification. The maximum allowable increment increases for different pollutants are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).

    The 2010 NSR Rule described in the preceding paragraph revised the existing system for determining increment consumption by establishing a new “major source baseline date” for PM2.5 of October 20, 2010, and by establishing a trigger date for PM2.5 in relation to the definition of “minor source baseline date.” These revisions to the federal PSD rules are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance of 0.3 micrograms per cubic meter, annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 52.21(b)(15)(i). States were required to revise their SIPs consistent with these changes to the federal regulations.

    On October 9, 2012, Connecticut submitted revisions to its PSD program incorporating two of the four changes addressed by the 2010 NSR Rule. The two changes were 1) a revised definition of “Major source baseline date” that included a date for PM2.5 specifically; and 2) the addition of the maximum allowable increment for PM2.5. EPA approved Connecticut's October 9, 2012 SIP revision on July 24, 2015 (80 FR 43960). Therefore, we propose to convert to a full approval the earlier conditional approval as it applies to these two elements of the EPA's 2010 rulemaking in the context of the infrastructure requirements for the 1997 and 2006 PM2.5 NAAQS. See 77 FR 63228 (October 16, 2012).

    CT DEEP's October 9, 2012 SIP revision did not specifically address the two other changes EPA made to the PSD rules in 2010, and for the following reasons EPA did not intend for those two issues to be part of the conditional approval described in our October 16, 2012 notice. One of those changes is the requirement that a State's definition of “minor source baseline date” be amended to include a trigger date for PM2.5 emissions (see EPA's definition for “minor source baseline date” at 40 CFR 51.166(b)(14)(ii)). Instead of using a specific date, EPA's definition for minor source baseline date provides that the minor source baseline date is triggered by a state's receipt of its first complete PSD application. At the time CT DEEP made its October 9, 2012 SIP revision, it would not have been possible for the State to have amended its regulation to include a specific minor source baseline date because no source had submitted a complete PSD application for PM2.5. This is also true for CT DEEP's other infrastructure SIPs addressed in this action. This is so because CT DEEP's PSD regulations are structured in a way that uses actual specific dates based on submission of a first complete PSD application for a particular pollutant. (The approach contained in EPA's regulations is somewhat different in the sense that instead of using actual specific dates, EPA articulates the concept of a first complete PSD application as the minor source baseline date trigger.) EPA understands that CT DEEP did not receive a complete PSD application for a source subject to PSD for PM2.5 emissions until September 24, 2014. Consequently, the State could not have included an actual date in its definition of “minor source baseline date” within its October 9, 2012 SIP revision.

    Although Connecticut could not establish an actual date for PM2.5 in its definition of “minor source baseline date,” at the time of its October 9, 2012 SIP revision, Connecticut is now able to revise this definition to include a specific date that is consistent with EPA's definition because a complete PSD application has been submitted to CT DEEP for a major new source of PM2.5 emissions. Accordingly, the CT DEEP has committed by letter dated August 5, 2015, to submit for EPA approval into the SIP a minor source baseline date for PM2.5 that meets the requirements at 40 CFR 51.166(b)(14)(ii)(c). Consequently, we propose to conditionally approve Connecticut's submittals for this sub-element pertaining to section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Consistent with our reasoning above, we are also proposing to newly conditionally approve Connecticut's submittals for this sub-element with respect to the 1997 and 2006 PM2.5 NAAQS.

    The fourth change to the PSD regulations that EPA made in 2010 was to add “equal or greater than 0.3 µg/m3 (annual average) for PM2.5” to the definition of “baseline area.” This requires states to determine whether another baseline area, other than the baseline area where the PSD subject source is locating, needs to be analyzed based on the air quality impact predicted from the new PSD source. The impact on another baseline area is limited to any impacts above the defined thresholds contained within the definition of “baseline area” on another area within Connecticut. In other words, under EPA's PSD requirements the baseline area evaluation does not include within it analysis of a new source's impacts in another state.

    Connecticut's current SIP and State PSD rules do not contain a definition of “baseline area.” EPA has confirmed in communications with CT DEEP that it treats the entire state as a single baseline area, which obviates the need to have a definition for this term. EPA agrees that the language EPA added to the federal definition of “baseline area” in the federal PSD requirements is not necessary in Connecticut because there is no other baseline area within the State.

    Moreover, EPA has concluded that the lack of such a specific definition of “baseline area” does not in theory, and has not in fact over many years, preclude CT DEEP from ensuring that emissions from a major new source or major modification will not consume more increment than would be available or allowable even had CT DEEP adopted a definition that was exactly the same as EPA's definition of baseline area. In other words, CT DEEP has a regulatory structure that it has used over many years to ensure that increment consumption arising from new construction comports as a practical matter with federal PSD requirements and is functionally equivalent. EPA last approved CT DEEP's increment calculation methodology on February 27, 2003 (68 FR 9009).

    Based on actual emissions data from the most recent National Emission Inventory emissions data base (2011), there are only 15 existing major stationary sources in Connecticut, all of which are major due to NOX emissions. None of these sources emitted 100 tons per year or more of PM10, PM2.5, or VOC emissions. Further, 10 of these NOX sources are the only such source in their city or town, two are located in Middletown, and three are located in Bridgeport. Typically, the determination of whether a new or modified source's emissions could potentially consume more than the available increment in an area depends on whether other significant sources of air emissions impact the same area. The facts described above show how unlikely this would be, even if theoretically possible. EPA has determined that the differences between Connecticut's mechanism for determining if emissions from the new or modified source will exceed the available increment and EPA's mechanism is negligible, if different at all, in terms of emissions. Connecticut's and EPAs mechanisms both take into account, in a manner sufficiently protective of air quality, consumption of available increment from nearby sources.

    In addition to the above, once CT DEEP addresses the conditional approval discussed earlier regarding the State's definition of “minor source baseline date,” the impact of Connecticut's approved mechanism for determining available increment most likely will result in a more conservative or protective approach than EPA's increment structure. This is because all growth within Connecticut after September 24, 2014, that would result in any increase in PM2.5 emissions will be consuming the available increment for a new or modified source required to obtain a PSD permit for PM2.5 emissions anywhere within the State. Under EPA's mechanism for determining available increment, because there has, to date, only been a PSD application submitted for a new source that constructed in New Haven County, changes to the available increment would only be evaluated from sources in New Haven County. Put differently, EPA's mechanism would allow some of the future growth in PM2.5 emissions outside of New Haven County to be considered part of the baseline concentration and, therefore, would not consume increment elsewhere in Connecticut.

    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that directly emit PM2.5 emissions and sources that emit other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursor pollutants. In the 2008 rule, EPA identified precursors to PM2.5 for the PSD program to be SO2 and NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that volatile organic compounds (VOCs) are not considered to be precursors to PM2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations.

    The explicit references to SO2, NOX, and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011. See 73 FR 28321 at 28341 (May 16, 2008).4

    4 EPA notes that on January 4, 2013, the U.S. Court of Appeals for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 NSR Rule in accordance with the CAA's requirements for PM10 nonattainment areas (Title I, Part D, subpart 4), and not the general requirements for nonattainment areas under subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). As the subpart 4 provisions apply only to nonattainment areas, the EPA does not consider the portions of the 2008 rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated by the 2008 NSR rule in order to comply with the court's decision. Accordingly, the EPA's approval of Connecticut's infrastructure SIP as to elements C, D(i)(II), or J with respect to the PSD requirements promulgated by the 2008 implementation rule does not conflict with the court's opinion.

    The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

    The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as “condensables”, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM2.5 and PM10 condensables for applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. See 73 FR 28321 at 28334. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 52.21(b)(50)(i)(a). Revisions to states' PSD programs incorporating the inclusion of condensables were required be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).

    On October 9, 2012, Connecticut submitted revisions to its PSD program incorporating the necessary changes required by the 2008 NSR Rule with respect to provisions that explicitly identify precursors to PM2.5. EPA approved Connecticut's October 9, 2012 SIP revision on July 24, 2015 (80 FR 43960).

    Connecticut's SIP-approved PSD program does not contain a specific provision that explicitly contains the language in 40 CFR 51.166(b)(49)(i) addressing the inclusion of the gaseous, condensable fraction of PM2.5 and PM10 for the purpose of PSD applicability or establishing permit emissions limits conditions.

    However, by letter submitted to EPA Region 1 and dated August 5, 2015 Connecticut explained that its major stationary source preconstruction permitting program does, in fact, require inclusion of the condensable portion of PM10 and PM2.5 for PSD applicable purposes and establishing permit emissions limits and conditions, because Section 22a-174-1 of the State's regulations defines those two pollutants in terms of an amount measured at ambient air conditions. Consequently, because the gaseous, condensable portions of PM10 and PM2.5 are, in fact, condensed at ambient air conditions, Connecticut's requirements meet the corresponding federal requirements.

    Therefore, we are proposing that Connecticut has met this set of requirements of section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS regarding the requirements of EPA's 2008 NSR Rule. Additionally, we are also proposing to convert our prior conditional approval for this infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS (see 77 FR 63228 (October 16, 2012)) to a full approval.

    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 accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway” sources. With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

    The EPA is planning to take additional steps to revise federal PSD rules in light of the Supreme Court opinion and subsequent D.C. Circuit judgment. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions. For purposes of infrastructure SIP submissions, the EPA is only evaluating such submissions to assure that the state's program addresses GHGs consistent with both court decisions.

    At present, the EPA has determined that Connecticut's SIP is sufficient to satisfy this sub-element of section 110(a)(2)(C) (as well as sub-elements (D)(i)(II) and (J)(iii)) with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT.

    The approved Connecticut PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements C, D (sub-element (i)(II)), and J. The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of Connecticut's infrastructure SIP as to the requirements of Element C (as well as sub-elements (D)(i)(II) and (J)(iii)).

    For the purposes of the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS infrastructure SIPs, EPA reiterates that NSR Reform is not in the scope of these actions. Therefore, we are not taking action on existing NSR Reform regulations for Connecticut.

    In summary, we are proposing to approve the majority of Connecticut's submittals for this sub-element pertaining to section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010 NOX, and 2010 SO2 NAAQS, but to conditionally approve the aspects pertaining to treating NOX as a precursor to ozone and to establishing a minor source baseline date for PM2.5. We are also proposing to newly conditionally approve Connecticut's submittals for this sub-element with respect to the 1997 and 2006 PM2.5 NAAQS for these same PSD requirements.

    iii. Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor Modifications

    To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulates emissions of the relevant NAAQS pollutants. EPA approved Connecticut's minor NSR program, as well as updates to that program, with the most recent approval occurring on February 28, 2003 (68 FR 9009). Since this date, Connecticut and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    We are proposing to find that Connecticut has met the requirement to have a SIP approved minor new source review permit program as required under Section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    D. Section 110(a)(2)(D)—Interstate Transport

    This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution that states must comply with. It covers the following 5 topics, categorized as sub-elements: Sub-element 1, Contribute to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the 4 prongs discussed below, 2 of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.

    i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)—Contribute to Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2)

    With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the physical properties of Pb prevent it from experiencing the same travel or formation phenomena as PM2.5 or ozone. Specifically, there is a sharp decrease in Pb concentrations as the distance from a Pb source increases. Accordingly, although it may be possible for a source in a state to emit Pb at a location and in such quantities that contribute significantly to nonattainment in, or interference with maintenance by, any other state, EPA anticipates that this would be a rare situation (e.g., sources emitting large quantities of Pb in close proximity to state boundaries). The 2011 Memo suggests that the applicable interstate transport requirements of section 110(a)(2)(D)(i)(I) with respect to Pb can be met through a state's assessment as to whether or not emissions from Pb sources located in close proximity to its borders have emissions that impact a neighboring state such that they contribute significantly to nonattainment or interfere with maintenance in that state.

    Connecticut's infrastructure SIP submission for the 2008 Pb NAAQS notes that there are no sources of Pb emissions located in close proximity to any of the state's borders with neighboring states. Additionally, Connecticut's submittal and the emissions data the state collects from its sources indicate that there is no single source of Pb, or group of sources, anywhere within the state that emits enough Pb to cause ambient concentrations to approach the Pb NAAQS. Our review of data within our National Emissions Inventory (NEI) database confirms this, and, therefore, we propose that Connecticut has met this set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.

    With respect to the 2010 NO2 NAAQS, on February 17, 2012, EPA designated the entire country as “unclassifiable/attainment” for this standard, explaining that this designation means that “available information does not indicate that the air quality in these areas exceeds the 2010 NO2 NAAQS.” See 77 FR 9532 (February 17, 2012). In other words, Connecticut and all neighboring states are currently designated as “unclassifiable/attainment” for the 2010 NO2 NAAQS.

    NOX emissions in Fairfield and New Haven Counties in Connecticut are projected to decrease by more than 50 percent between 2007 and 2025, further reducing any impacts from Connecticut on other states. Similar reductions are expected throughout the rest of the state (see Connecticut's PM2.5 Redesignation Request and Maintenance Plan, Technical Support Document, June 22, 2012 included in the docket for this notice). Furthermore, EPA examined the design values from NO2 monitors in Connecticut and neighboring states based on data collected between 2011 and 2013. In Connecticut, the highest design value was 55 parts per billion (ppb) (versus the NO2 standard of 100 ppb) at a monitor in New Haven. The highest design values in neighboring states were 60 ppb in New York (Bronx site 360050133), 52 ppb in Massachusetts (Worcester site 250270023), and 43 ppb in Rhode Island (Providence site 440070012). EPA believes that, with the continued implementation of Connecticut's SIP-approved PSD and NNSR regulations found in RCSA section 22a-174-3a, the state's low monitored values of NO2 will continue. In other words, the NO2 emissions from Connecticut are not expected to cause or contribute to a violation of the 2010 NO2 NAAQS in another state,5 and these emissions are not likely to interfere with the maintenance of the 2010 NO2 NAAQS in another state. Therefore, EPA proposes that Connecticut has met this set of requirements related to section 110(a)(2)(D)(i)(I) for the 2010 NO2 NAAQS.

    5 The highest design value for the 1 hr NO2 standard for a monitor in an adjacent state and is located nearby Connecticut is 60 ppb at a monitor in Bronx, New York.

    In summary, we are proposing that Connecticut has met section 110(a)(2)(D)(i)(I) for the 2008 Pb and 2010 NO2 NAAQS. Connecticut made a SIP submission with respect to section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS on June 15, 2015 and the 2010 SO2 NAAQS on May 30, 2013. EPA is reviewing these SIP submissions and will take actions on this infrastructure requirement for both the 2008 ozone NAAQS and the 2010 SO2 NAAQS at a later date.

    ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)—PSD (Prong 3)

    One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state. One way for a state to meet this requirement is through a comprehensive PSD permitting program that applies to all regulated NSR pollutants and that satisfies the requirements of EPA's PSD implementation rules. As has already been discussed in the paragraphs addressing the PSD sub-element of Element C, Connecticut has satisfied the majority, though not all, of the applicable PSD implementation rule requirements.

    States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. One way that this requirement can be satisfied is through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state. EPA approved Connecticut's NNSR regulations on February 27, 2003 (68 FR 9009). These regulations contain provisions for how the state must treat and control sources in nonattainment areas, consistent with 40 CFR 51.165, or appendix S to 40 CFR part 51.

    As noted above and in Element C, Connecticut's PSD program does not fully satisfy the requirements of EPA's PSD implementation rules, although Connecticut has committed to submit the required provisions for EPA approval by a date no later than one year from conditional approval of Connecticut's infrastructure submissions. Consequently, we are proposing to conditionally approve this sub-element for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Additionally, we are proposing to convert our prior conditional approval of this sub-element as it relates to certain PSD implementation rules described under Element C above for the 1997 and 2006 PM2.5 NAAQS (see 77 FR 63228 (October 16, 2012)) to a full approval. We are also proposing to newly conditionally approve this sub-element for the 1997 and 2006 PM2.5 NAAQS for certain other implementation rule requirements for the reasons discussed under Element C above.

    iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)—Visibility Protection (Prong 4)

    With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 Memo, and 2013 Memo state that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze.

    Connecticut's Regional Haze SIP was approved by EPA on July, 10, 2014 (79 FR 39322). Accordingly, EPA proposes that Connecticut has met the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2008 Pb NAAQS, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    iv. Sub-Element 4: Section 110(a)(2)(D)(ii)—Interstate Pollution Abatement

    One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 relating to interstate pollution abatement.

    Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element.

    EPA approved revisions to Connecticut's PSD program on July 24, 2015 (80 FR 43960), including the element pertaining to notification to neighboring states of the issuance of PSD permits. Therefore, we propose to approve Connecticut's compliance with the infrastructure SIP requirements of section 126(a) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. EPA also proposes to convert the previous conditional approvals for this infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS (see 77 FR 63228 (October 16, 2012)) and the 1997 ozone NAAQS (see 76 FR 40255 (July 8, 2011)) to full approval. Connecticut has no obligations under any other provision of section 126.

    v. Sub-Element 5: Section 110(a)(2)(D)(ii)—International Pollution Abatement

    One portion of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. Connecticut does not have any pending obligations under section 115 for the 2008 Pb, 2008 ozone, 2010 NO2, or 2010 SO2 NAAQS. Therefore, EPA is proposing that Connecticut has met the applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of the CAA (international pollution abatement) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    E. Section 110(a)(2)(E)—Adequate Resources

    This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP and related issues. Additionally, Section 110(a)(2)(E)(ii) requires each state to comply with the requirements with respect to state boards under section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. This sub-element, however, is inapplicable to this action, because Connecticut does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.

    Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under State Law To Carry Out Its SIP, and Related Issues

    Connecticut, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. CGS section 22a-171 authorizes the Commissioner of the CT DEEP to enforce the state's air laws, accept and administer grants, and exercise incidental powers necessary to carry out the law. The Connecticut SIP, as originally submitted on March 3, 1972, and subsequently amended, provides additional descriptions of the organizations, staffing, funding and physical resources necessary to carry out the plan. EPA proposes that Connecticut has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    Sub-element 2: State Board Requirements Under Section 128 of the CAA

    Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (i) That any board or body which approves permits or enforcement orders under this chapter shall 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 this chapter, and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

    In Connecticut, no board or body approves permits or enforcement orders; these are approved by the Commissioner of CT DEEP. Thus, Connecticut is subject only to the requirements of paragraph (a)(2) of section 128 of the CAA. Infrastructure SIPs submitted by Connecticut include descriptions of conflict-of-interest provisions in CGS section 1-85, which applies to all state employees and public officials. Section 1-85 prevents the Commissioner from acting on a matter in which the Commissioner has an interest that is “in substantial conflict with the proper discharge of his duties or employment in the public interest and of his responsibilities as prescribed in the laws of” Connecticut. Connecticut submitted CGS section 1-85 for incorporation into the SIP on December 28, 2012 with its infrastructure SIP for the 2008 ozone NAAQS,6 and we are herein proposing to approve this statute into the Connecticut SIP.

    6 CT DEEP also requested approval into the SIP of CGS section 1-85 in its January 2, 2013 infrastructure SIP for the 2002 NO2 NAAQS.

    Upon approval of CGS section 1-85 into the SIP, EPA proposes that Connecticut has met the applicable infrastructure SIP requirements for this section of 110(a)(2)(E) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. In addition, EPA previously issued a conditional approval to Connecticut for this infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS. See 77 FR 63228 (October 16, 2012). Given that Connecticut has now addressed this issue, we are also proposing to convert the prior conditional approval for this infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS to full approval.

    F. Section 110(a)(2)(F)—Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also 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 state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.

    CGS section 22a-6(a)(5) authorizes the Commissioner to enter at all reasonable times, any public or private property (except a private residence) to investigate possible violations of any statute, regulation, order or permit. Additionally, CGS section 22a-174 authorizes the Commissioner to require periodic inspection of sources of air pollution and to require any person to maintain, and to submit to CT DEEP, certain records relating to air pollution or to the operation of facilities designed to abate air pollution. For monitoring possible air violations, CT DEEP implements RCSA section 22a-174-4, “Source monitoring, record keeping and reporting,” to require the installation, maintenance, and use of emissions monitoring devices and to require periodic reporting to the Commissioner of the nature and extent of the emissions. Section 22a-174-4 has been approved into the SIP (see 79 FR 41427 (July 16, 2014). Additionally, CT DEEP implements RCSA section 22a-175-5, “Methods for sampling, emissions testing, sample analysis, and reporting,” which provides, among other things, specific test methods to be used to demonstrate compliance with various aspects of Connecticut's air regulations, and this rule has also been approved into the SIP (see 46 FR 43418 (December 19, 1980)). Furthermore, under RCSA section 22a-174-10, emissions data are to be available to the public and are not entitled to protection as a trade secret (see 37 FR 23085 (October 28, 1972)). EPA recognizes that Connecticut routinely collects information on air emissions from its industrial sources and makes this information available to the public. EPA, therefore, proposes that Connecticut has met the infrastructure SIP requirements of section 110(a)(2)(F) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    G. Section 110(a)(2)(G)—Emergency Powers

    This section requires that a plan provide for authority that is analogous to what is provided in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”

    We propose to find that Connecticut's submittals and certain state statutes provide for authority comparable to that in section 303. Connecticut's submittals specify that CGS section 22a-181, Emergency Action, authorizes the Commissioner of the CT DEEP to issue an order requiring any person to immediately reduce or discontinue air pollution as required to protect the public health or safety. In a letter dated August 5, 2015, Connecticut also specified that CGS section 22a-7 grants the Commissioner the authority, whenever he finds “that any person is causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which, in his judgment, will result in or is likely to result in imminent and substantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapter[ ] . . . 446c [Air Pollution Control] . . . [to] issue a cease and desist order in writing to such person to discontinue, abate or alleviate such condition or activity.” This section further provides the Commissioner with the authority to seek a court “to enjoin any person from violating a cease and desist order issued pursuant to [sec. 22a-7] and to compel compliance with such order.”

    Section 110(a)(2)(G) also requires that, for any NAAQS, except Pb, Connecticut have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II. A contingency plan is not required if the entire state is classified as Priority III for a particular pollutant. See 40 CFR part 51 subpart H. Classifications for the four AQCRs in Connecticut can be found at 40 CFR 52.371. Connecticut's portion of the New Jersey-New York-Connecticut Interstate AQCR is classified as a Priority I area for SOX, NO2, and ozone. In addition, Connecticut's portion of the Hartford-New Haven-Springfield Interstate AQCR is classified as a Priority I area for SOX and ozone. Consequently, Connecticut's SIP must contain an emergency contingency plan meeting the specific requirements of 40 CFR 51.151 and 51.152, as appropriate, with respect to these pollutants. As noted in Connecticut's infrastructure SIP submittals for ozone, NO2, and SO2, Connecticut has adopted “Air pollution emergency episode procedures” at RCSA section 22a-174-6. This regulation, originally numbered RCSA 19-508-6, was initially approved into the Connecticut SIP on May 31, 1972 (37 FR 23085), with amendments to the rule approved on December 23, 1980 (45 FR 84769).

    As stated in Connecticut's infrastructure SIP submittals under the discussion of public notification (Element J), Connecticut also, as a matter of practice, posts on the internet daily forecasted ozone and fine particle levels through the EPA AirNow and EPA EnviroFlash systems. Information regarding these two systems is available on EPA's Web site at www.airnow.gov. Notices are sent out to EnviroFlash participants when levels are forecast to exceed the current 8-hour ozone or 24-hour PM2.5 standard. In addition, when levels are expected to exceed the ozone or PM2.5 standard in Connecticut, the media are alerted via a press release, and the National Weather Service (NWS) is alerted to issue an Air Quality Advisory through the normal NWS weather alert system.

    Connecticut's participation in the AirNow and EnviroFlash programs addresses several of the public announcement and communications procedures and coordination with the National Weather Service included in the discussion of contingency plans in subpart H. See 40 CFR 51.152(a)(2), (b)(1), and (b)(3).

    In addition, Connecticut's infrastructure SIP submittals reference CGS section 22a-174(c) under Element F, regarding the inspection of sources. This statute, which provides the Commissioner of CT DEEP with the authority to require periodic inspection of sources of air pollution, is also relevant under Element G, since 40 CFR 51.152(b)(2) requires each contingency plan to provide for the inspection of sources to be sure they are complying with any required emergency control actions.

    Finally, with respect to Pb, we note that Pb is not explicitly included in the contingency plan requirements of subpart H. In addition, we note that there are no large sources of Pb in Connecticut. Specifically, a review of the National Emission Inventory shows that there are no sources of Pb in Connecticut that exceed EPA's reporting threshold of 0.5 tons per year. Although not expected, if that situation were to change, as noted previously, Connecticut does have general authority (e.g., CGS sections 22a-7 and 22a-181) to restrain any source from causing imminent and substantial endangerment.

    Therefore, EPA proposes that Connecticut through the combination of statutes, regulations, and participation in EPA's AirNow program discussed above, has met the applicable infrastructure SIP requirements of section 110(a)(2)(G) with respect to the 2008 Pb NAAQS, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    H. Section 110(a)(2)(H)—Future SIP Revisions

    This section 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 an EPA finding that the SIP is substantially inadequate.

    Connecticut certifies that its SIP may be revised should EPA find that it is substantially inadequate to attain a standard or to comply with any additional requirements under the CAA and notes that CGS section 22a-174(d) grants the Commissioner all incidental powers necessary to control and prohibit air pollution. EPA proposes that Connecticut has met the infrastructure SIP requirements of section 110(a)(2)(H) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    I. Section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D

    The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas. EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.

    J. Section 110(a)(2)(J)—Consultation With Government Officials; Public Notifications; PSD; Visibility Protection

    The evaluation of the submissions from Connecticut with respect to the requirements of CAA section 110(a)(2)(J) are described below.

    i. Sub-Element 1: Consultation With Government Officials

    States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.

    CGS section 22a-171, Duties of Commissioner of Energy and Environmental Protection, directs the Commissioner to consult with agencies of the United States, agencies of the state, political subdivisions and industries and any other affected groups in matters relating to air quality. Additionally, CGS section 22a-171 directs the Commissioner to initiate and supervise state-wide programs of air pollution control education and to adopt, amend, repeal and enforce air regulations. Furthermore, RCSA section 22a-174-2a, which has been approved into Connecticut's SIP (see 80 FR 43960 (July 24, 2015)), directs CT DEEP to notify relevant municipal officials and FLMs, among others, of tentative determinations by CT DEEP with respect to certain permits. In its SO2 infrastructure SIP submittal, CT DEEP submits CGS section 22a-171 for inclusion into the SIP. EPA proposes to approve this statute into the SIP and proposes that Connecticut has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    ii. Sub-Element 2: Public Notification

    Section 110(a)(2)(J) also requires states to notify the public if NAAQS are exceeded in an area and must enhance public awareness of measures that can be taken to prevent exceedances.

    As part of the fulfillment of CGS section 22a-171, Duties of Commissioner of Energy and Environmental Protection, Connecticut issues press releases and posts warnings on its Web site advising people what they can do to help prevent NAAQS exceedances and avoid adverse health effects on poor air quality days. Connecticut is also an active partner in EPA's AirNow and Enviroflash air quality alert programs. EPA proposes that Connecticut has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    iii. Sub-Element 3: PSD

    States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Connecticut's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs above addressing section 110(a)(2)(C), and EPA notes that the proposed actions for those sections are consistent with the proposed actions for this portion of section 110(a)(2)(J). Our proposed actions are reiterated below.

    As noted above in Element C, Connecticut's PSD program does not fully satisfy the requirements of EPA's PSD implementation rules, although Connecticut has committed to submit the required provisions for EPA approval by a date no later than one year from conditional approval of Connecticut's infrastructure submissions. Consequently, we are proposing to conditionally approve this sub-element for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. Additionally, we are proposing to convert our prior conditional approval of this sub-element as it relates to certain PSD implementation rules described under Element C above for the 1997 and 2006 PM2.5 NAAQS (see 77 FR 63228 (October 16, 2012)) to a full approval. We are also proposing to newly conditionally approve this sub-element for the 1997 and 2006 PM2.5 NAAQS for certain other implementation rule requirements for the reasons discussed under Element C above.

    iv. Sub-Element 4: Visibility Protection

    With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    K. Section 110(a)(2)(K)—Air Quality Modeling/Data

    To satisfy element K, the state air agency must demonstrate that it has the authority to perform air quality modeling to predict effects on air quality of emissions of any NAAQS pollutant and submission of such data to EPA upon request.

    Connecticut reviews the potential impact of major sources consistent with 40 CFR part 51, appendix W, “Guidelines on Air Quality Models.” The modeling data are sent to EPA along with the draft major permit. Pursuant to CGS section 22a-5, the Commissioner is directed to “promote and coordinate management of . . . air resources to assure their protection, enhancement and proper allocation and utilization” and to “provide for the prevention and abatement of all . . . air pollution including, but not limited to, that related to particulates, gases, dust, vapors, [and] odors.” Under RCSA section 22a-174-3a(i), Ambient Air Quality Analysis, which has been approved into the Connecticut SIP on February 27, 2003 (68 FR 3009), the Commissioner is authorized to request any owner or operator to submit an ambient air quality impact analysis using CT DEEP approved air quality models and modeling protocols. The state also collaborates with the Ozone Transport Commission (OTC), and the Mid-Atlantic Regional Air Management Association and EPA in order to perform large-scale urban airshed modeling. EPA proposes that Connecticut has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    L. Section 110(a)(2)(L)—Permitting Fees

    This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.

    EPA's full approval of Connecticut's Title V program became effective on May 31, 2002. See 67 FR 31966 (May 13, 2002). Before EPA can grant full approval, a state must demonstrate the ability to collect adequate fees. CGS section 22a-174(g) directs the Commissioner of CT DEEP to require the payment of a fee sufficient to cover the reasonable cost of reviewing and acting upon an application for, and monitoring compliance with, any state or federal permit, license, registration, order, or certificate. CT DEEP implements this directive through state regulations at RCSA sections 22a-174-26 and 22a-174-33, which contain specific requirements related to permit fees, including fees for Title V sources. EPA proposes that Connecticut has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    M. Section 110(a)(2)(M)—Consultation/Participation by Affected Local Entities

    Pursuant to element M, states must consult with, and allow participation from, local political subdivisions affected by the SIP.

    CGS section 4-168, Notice prior to action on regulations, provides a public participation process for all stakeholders that includes a minimum of a 30-day comment period and an opportunity for public hearing for all SIP-related actions. EPA proposes that Connecticut has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.

    N. Connecticut Statutes for Inclusion Into the Connecticut SIP

    As noted above in the discussion of elements E and J, Connecticut submitted, and EPA is proposing to approve, CGS sections 1-85 and 22a-171 for approval into the SIP. In addition, in its May 30, 2013 infrastructure SIP for the 2010 SO2 NAAQS, Connecticut submitted CGS section 16a-21a “Sulfur content of home heating oil and off-road diesel fuel. Suspension of requirements for emergency,” effective July 1, 2011. EPA previously approved a prior version of this statute, which had been included as a component of Connecticut's Regional Haze SIP, into the Connecticut SIP on July 10, 2014 (79 FR 39322). The updated version of the statute includes an additional provision limiting the sulfur content of number two heating oil. The sulfur content restrictions in the updated statute are more stringent than those in the previously approved version, thus meeting the anti-backsliding requirements of CAA section 110(l). Therefore, EPA is proposing to approve the updated statute into the Connecticut SIP.

    V. What action is EPA taking?

    EPA is proposing to approve SIP submissions from Connecticut certifying that its current SIP is sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, with the exception of certain aspects relating to PSD which we are proposing to conditionally approve. EPA's proposed actions regarding these infrastructure SIP requirements are contained in Table 1 below.

    Table 1—Proposed Action on CT Infrastructure SIP Submittals for Various NAAQS Element 2008
  • Pb
  • 2008
  • Ozone
  • 2010
  • NO2
  • 2010
  • SO2
  • (A): Emission limits and other control measures A A A A (B): Ambient air quality monitoring and data system A A A A (C)(i): Enforcement of SIP measures A A A A (C)(ii): PSD program for major sources and major modifications A* A* A* A* (C)(iii): Permitting program for minor sources and minor modifications A A A A (D)(i)(I): Contribute to nonattainment/interfere with maintenance of NAAQS (prongs 1 and 2) A No action A No action (D)(i)(II): PSD (prong 3) A* A* A* A* (D)(i)(II): Visibility Protection (prong 4) A A A A (D)(ii): Interstate Pollution Abatement A A A A (D)(ii): International Pollution Abatement A A A A (E)(i): Adequate resources A A A A (E)(ii): State boards A A A A (E)(iii): Necessary assurances with respect to local agencies NA NA NA NA (F): Stationary source monitoring system A A A A (G): Emergency power A A A A (H): Future SIP revisions A A A A (I): Nonattainment area plan or plan revisions under part D + + + + (J)(i): Consultation with government officials A A A A (J)(ii): Public notification A A A A (J)(iii): PSD A* A* A* A* (J)(iv): Visibility protection + + + + (K): Air quality modeling and data A A A A (L): Permitting fees A A A A (M): Consultation and participation by affected local entities A A A A Key to Table 1: Proposed action on CT infrastructure SIP submittals for various NAAQS: A—Approve. A*—Approve, but conditionally approve aspect of PSD program relating to NOX as a precursor to ozone and minor source baseline date for PM2.5. +—Not germane to infrastructure SIPs. No action—EPA is taking no action on this infrastructure requirement.7 NA—Not applicable.

    With respect to the 1997 and 2006 PM2.5 NAAQS, EPA is proposing to convert conditional approvals for infrastructure requirements pertaining to Elements A, D(ii) (interstate pollution abatement), and E(ii) (state boards) to full approval. Also with respect to the 1997 and 2006 PM2.5 NAAQS, EPA is proposing to newly conditionally approve Connecticut's submittals pertaining to Elements C(ii), D(i)(II), and J(iii) for the requirements to treat NOX as a precursor to ozone and to establish a minor source baseline date for PM2.5 in the PSD program.

    With respect to the 1997 8-hour ozone NAAQS, EPA is proposing to convert the conditional approval for the infrastructure SIP requirements of 110(a)(2)(D)(ii) pertaining to interstate pollution abatement to a full approval.

    In addition, EPA is proposing to approve, and incorporate into the Connecticut SIP, the following Connecticut statutes which were included for approval in Connecticut's infrastructure SIP submittals:

    CGS Section 1-85 (Formerly Sec. 1-68), Interest in conflict with discharge of duties, effective in 1979.

    CGS Section 22a-171, Duties of Commissioner of Energy and Environmental Protection, effective in 1971; and

    CGS Section 16a-21a, Sulfur content of home heating oil and off-road diesel fuel, effective July 1, 2011.

    As noted in Table 1, we are proposing to conditionally approve portions of Connecticut's infrastructure SIP submittals pertaining to the state's PSD program. The outstanding issues with the PSD program concern properly treating NOX as a precursor to ozone and establishing a minor source baseline date for PM2.5 emissions.

    Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to submit an update to its PSD program that fully remedies the requirements mentioned above. If the State fails to do so, this action will become a disapproval one year from the date of final approval. EPA will notify the State by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved Connecticut SIP. EPA subsequently will publish a document in the Federal Register notifying the public that the conditional approval converted to a disapproval. If the State meets its commitment, within the applicable time frame, the conditionally approved submission will remain a part of the SIP until EPA takes final action approving or disapproving the new submittal. If EPA disapproves the new submittal, the conditionally approved infrastructure SIP elements will also be disapproved at that time. In addition, a final disapproval would trigger the Federal Implementation Plan (FIP) requirement under section 110(c). If EPA approves the new submittal, the PSD program and relevant infrastructure SIP elements will be fully approved and replace the conditionally approved program in the SIP.

    EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this Federal Register, or by submitting comments electronically, by mail, or through hand delivery/courier following the directions in the ADDRESSES section of this Federal Register.

    VI. Incorporation by Reference

    In this rulemaking, 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 into the Connecticut SIP the three Connecticut statutes referenced in Section V above. The EPA has made, and will continue to make, these documents generally available through http://www.regulations.gov and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (see 65 FR 67249 (November 9, 2000)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Reporting and recordkeeping requirements.

    Dated: August 13, 2015. H. Curtis Spalding, Regional Administrator, EPA New England.
    [FR Doc. 2015-22027 Filed 9-9-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Parts 401, 403, and 404 [USCG-2015-0497] RIN 1625-AC22 Great Lakes Pilotage Rates—2016 Annual Review and Changes to Methodology AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking; public meeting.

    SUMMARY:

    The Coast Guard proposes revisions to the annual ratemaking methodology (“procedural changes”) and several Great Lakes pilotage regulations, and proposes new base pilotage rates and surcharges (“rate changes”), using that proposed revised methodology. The changes would take effect 30 days after publication of a final rule. Rates for pilotage services on the Great Lakes were last revised in February 2015 and by law must be reviewed annually. The Coast Guard intends for the proposed revised methodology to be understandable and transparent, and to encourage investment in pilots, infrastructure, and training while helping ensure safe, efficient, and reliable service on the Great Lakes. In addition, the Coast Guard announces a public meeting on September 17, 2015, at which the public may ask questions about the proposals and comment on them. This rulemaking promotes the Coast Guard's maritime safety and stewardship (environmental protection) missions by promoting safe shipping on the Great Lakes.

    DATES:

    Comments and related material must either be submitted to the online docket via www.regulations.gov on or before November 9, 2015 or reach the Docket Management Facility by that date. The public meeting will be held on September 17, 2015, from 1:00 p.m. to 4:00 p.m., but may end sooner depending on the extent to which the public has questions or comments.

    ADDRESSES:

    The September 17, 2015 public meeting will be held at the Detroit Metro Airport Marriott, 30559 Flynn Dr., Romulus, MI 48174 (telephone 734-729-7555 or Marriott.com). Submit written comments using one of the listed methods, and see SUPPLEMENTARY INFORMATION for more information on public comments.

    Onlinehttp://www.regulations.gov following Web site instructions.

    Fax—202-493-2251.

    Mail or hand deliver—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. Hand delivery hours: 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays (telephone 202-366-9329).

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this proposed rule, call or email Mr. Todd Haviland, Director, Great Lakes Pilotage, Commandant (CG-WWM-2), Coast Guard; telephone 202-372-2037, email [email protected], or fax 202-372-1914. If you have questions on viewing or submitting material to the docket, call Ms. Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    The purpose of this rulemaking is to amend the Coast Guard's Great Lakes pilotage regulations by revising the current methodology by which the Coast Guard sets base rates for U.S. pilotage service. The legal basis for the rulemaking is provided by Great Lakes pilotage statutes in 46 U.S.C. chapter 93. The proposed changes would take effect 30 days after publication of a final rule; this would coincide closely with the start of the 2016 shipping season and be several months earlier than in past rulemakings, which set changes that took effect on August 1 of each year.

    The Coast Guard is proposing a complete revision of the current methodology for two reasons. First, over many years both pilots and industry have identified certain methodology issues that they believe significantly distort ratemaking calculations. Pilot associations believe those distortions result in low rates that contribute to their difficulty in retaining pilots and attracting applicant pilots. Second, only one union's contract data has ever been made available to the Coast Guard for the purpose of determining the benchmark for pilot compensation. The union now regards that data as proprietary and will no longer disclose it to the Coast Guard. The union is not subject to our Great Lakes pilotage regulatory oversight and therefore we respect and accept their decision. However, as a result of this decision, the Coast Guard no longer has access to the detailed breakdown of compensation calculations that our current methodology relies on, and the public cannot review the union's calculations or the manner in which we apply those calculations in setting pilotage rates. Therefore, we have decided we must select another benchmark for our ratemaking purposes. In 2014, the Coast Guard's Great Lakes Pilotage Advisory Committee (GLPAC) recommended significant changes to address stakeholder issues with the current methodology and to adapt to the unavailability of benchmark contract data.1 This rulemaking would build a new ratemaking methodology around the GLPAC recommendations, the 2013 Bridge Hour Study, and numerous comments we have received over the past decade from previous rulemakings to revise this proposed methodology. Also, we believe the proposed methodology addresses the issues raised with the 2014 Appendix A Final Rule lawsuit, St. Lawrence Seaway Pilots Association, Inc., et al., v. U.S. Coast Guard. 2 The pilots successfully challenged the 2014 Appendix A Final Rule and their recommendation for target pilot compensation is discussed in this proposed rule.

    1See 46 U.S.C. 9307.

    2 Docket No. 1:14-cv-00392-TSC.

    As is done in the current ratemaking methodology, the proposed new methodology would follow a series of steps, which we describe in Part V. Step 1 reviews and recognizes previous operating expenses based on audits of records provided by the pilot associations. Step 2 projects each association's future operating expenses, adjusting for inflation or deflation. Step 3 projects the number of pilots needed based on each area's peak pilotage demand data and the pilot work cycle. Step 4 sets target pilot compensation using a compensation benchmark. Step 5 projects each association's return on investment by adding the projected adjusted operating expenses from Step 2 and the total target pilot compensation from Step 4 and multiplying by the preceding year's average annual rate of return for new issues of high grade corporate securities. Step 6 calculates each association's needed revenue by adding the projected adjusted operating expenses from Step 2, the total target pilot compensation from Step 4 and the projected return on investment from Step 5. Step 7 calculates initial base rates based on the preceding steps. Step 8 adjusts the Step 7 initial rates if necessary and reasonable to do so for supportable circumstances, and sets final rates.

    In Part VI, the Coast Guard uses the proposed methodology described in Part V to calculate proposed base rates for the 2016 shipping season.

    In Step 1 we propose accepting the independent accountant's final findings from the 2013 audits of each association's expenses.

    In Step 2 we project next year's operating expenses and adjust them for inflation, using actual inflation data for 2014 and 2015 and the Federal Reserve target inflation rate as a proxy for actual 2016 inflation.

    In Step 3, we determine that 50 pilots are needed next year, up from the 36 pilots we currently authorize. This number is based on data for four shipping seasons, 2010 through 2013, instead of the normal five seasons, because we do not have reliable source data for 2009 or 2014. The number is also based average pilot assignment cycle time based on our 2013 Bridge Hour Definition and Methodology Final Report though we intend to use Great Lakes Pilotage Management System (GLPMS) source data in the future.

    In Step 4 we propose individual target pilot compensation of $312,500 and total target pilot compensation for 42 pilots of $13,125,000. Though we find that 50 pilots are needed over the period for which 2016 base rates would be in effect, based on our best current information we project there to be only 42 fully working and fully compensated pilots (“working pilots”) in 2016. The figures were set after considering various possible compensation benchmarks, including the compensation figures proposed by the pilot associations, and selecting 2013 Canadian Great Lakes Pilotage Authority (GLPA) registered pilot compensation as the most appropriate benchmark.

    In Steps 5 and 6 we calculate the return on investment and project each pilot association's needed revenue.

    In Step 7, we calculate initial base rates using the multi-year base period used above, covering the 2010 through 2013 shipping seasons.

    Finally, in Step 8, we finalize the Step 7 rates, but propose imposing a temporary surcharge of $300,000 per district in 2016. The surcharge would reimburse pilot associations for the anticipated expenses of providing necessary training for current pilots and applicant pilots.

    In addition to the proposed methodology revisions and proposed 2016 rates, we also propose an additional location for beginning and ending pilot assignments (a “change point”) at Iroquois Lock. This would enhance safety by mitigating fatigue associated with long pilotage runs of 10 hours or more in the St. Lawrence River.

    The proposed rule would not be economically significant under E.O. 12866. It would affect 36 U.S. Great Lakes pilots, 3 pilot associations, and the owners and operators of an average of 126 vessels that journey the Great Lakes on an average 396 visits to various ports annually. The Coast Guard estimates that the proposed rate changes would result in shippers paying pilot associations a net 2016 shipping season increase from 2015 of $6,521,205. The proposed $6,521,205 represents a roughly 50% increase over the revenue the 2015 Appendix A Final Rule should generate. The Coast Guard also proposes authorizing temporary surcharges to reimburse pilot associations for training costs. These surcharges would add an estimated $900,000 in costs, for a total 2016 cost increase from 2015 of $7,421,205. Since the Coast Guard must review and prescribe rates for Great Lakes Pilotage annually, the effects are estimated as single year costs rather than annualized over a ten-year period. This rulemaking would not result in a change to Coast Guard's budget and it would not increase Federal spending. A summary of the regulatory analysis can be found in Part VII.

    Table of Contents for Preamble I. Public Participation and Request for Comments II. Abbreviations III. Basis and Purpose IV. Background V. Discussion of Proposed Procedural Changes A. Summary B. Discussion of Methodology VI. Discussion of Proposed Rate Changes VII. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments

    We encourage you to submit comments (or related material) on this rulemaking. We will consider all submissions and may adjust our final action based on your comments. Comments should be marked with docket number USCG-2015-0497 and should provide a reason for each suggestion or recommendation. You should provide personal contact information so that we can contact you if we have questions regarding your comments; but please note that all comments will be posted to the online docket without change and that any personal information you include can be searchable online (see the Federal Register Privacy Act notice regarding our public dockets, 73 FR 3316, Jan. 17, 2008).

    Mailed or hand-delivered comments should be in an unbound 81/2 x 11 inch format suitable for reproduction. The Docket Management Facility will acknowledge receipt of mailed comments if you enclose a stamped, self-addressed postcard or envelope with your submission.

    Documents mentioned in this proposed rule and all public comments are in our online docket at http://www.regulations.gov and can be viewed by following the Web site's instructions. You can also view the docket at the Docket Management Facility (see the mailing address under ADDRESSES) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    On September 17, 2015, members of the public are invited to attend a meeting in Detroit, Michigan, at which we will answer questions and take comments on this NPRM. See DATES and ADDRESSES for further information on the meeting. A transcript of the meeting will be prepared and placed in the docket for this rulemaking.

    II. Abbreviations AMOU American Maritime Officers Union APA American Pilots Association BLS Bureau of Labor Statistics CAD Canadian dollars CFR Code of Federal Regulations GLPA Great Lakes Pilotage Authority (Canadian) CPA Certified public accountant E.O. Executive Order GLPAC Great Lakes Pilotage Advisory Committee GLPMS Great Lakes Pilotage Management System LPA Laurentian Pilotage Authority (Canadian) MISLE Marine Information for Safety and Law Enforcement NAICS North American Industry Classification System NPRM Notice of proposed rulemaking OMB Office of Management and Budget § Section symbol U.S.C. United States Code USD United States dollars III. Basis and Purpose

    The legal basis of this rulemaking is the Great Lakes Pilotage Act of 1960 (“the Act”),3 which requires U.S. vessels operating “on register” 4 and foreign vessels to use U.S. or Canadian registered pilots while transiting the U.S. waters of the St. Lawrence Seaway and the Great Lakes system.5 For the U.S. registered Great Lakes pilots (“pilots”), the Act requires the Secretary to “prescribe by regulation rates and charges for pilotage services, giving consideration to the public interest and the costs of providing the services.” 6 The Act requires that rates be established or reviewed and adjusted each year, not later than March 1.7 The Act requires that base rates be established by a full ratemaking at least once every 5 years, and in years when base rates are not established, they must be reviewed and, if necessary, adjusted.8 The Secretary's duties and authority under the Act have been delegated to the Coast Guard.9

    3 Public Law 86-555, 74 Stat. 259, as amended; currently codified as 46 U.S.C. Chapter 93.

    4 “On register” means that the vessel's certificate of documentation has been endorsed with a registry endorsement, and therefore, may be employed in foreign trade or trade with Guam, American Samoa, Wake, Midway, or Kingman Reef. 46 U.S.C. 12105, 46 CFR 67.17.

    5 46 U.S.C. 9302(a)(1).

    6 46 U.S.C. 9303(f).

    7 Id.

    8 Id.

    9 DHS Delegation No. 0170.1, para. II (92.f).

    The purpose of this notice of proposed rulemaking (NPRM) is to propose revisions to the annual ratemaking methodology and several Great Lakes pilotage regulations; to propose the addition of a new pilot change point; and to propose new base pilotage rates and surcharges, using the proposed revised ratemaking methodology.

    IV. Background

    The vessels affected by this NPRM are those engaged in foreign trade upon the U.S. waters of the Great Lakes. United States and Canadian “lakers,” which account for most commercial shipping on the Great Lakes, are not affected.10

    10 46 U.S.C. 9302. A “laker” is a commercial cargo vessel especially designed for and generally limited to use on the Great Lakes. The vessels affected by this rule are commonly known as “salties.”

    The U.S. waters of the Great Lakes and the St. Lawrence Seaway are divided into three pilotage districts. Pilotage in each district is provided by an association certified by the Coast Guard Director of Great Lakes Pilotage (“the Director”) to operate a pilotage pool. The Coast Guard does not control the actual compensation that pilots receive. The actual compensation is determined by each of the three district associations, which use different compensation practices.

    District One, consisting of Areas 1 and 2, includes all U.S. waters of the St. Lawrence River and Lake Ontario. District Two, consisting of Areas 4 and 5, includes all U.S. waters of Lake Erie, the Detroit River, Lake St. Clair, and the St. Clair River. District Three, consisting of Areas 6, 7, and 8, includes all U.S. waters of the St. Mary's River; Sault Ste. Marie Locks, and Lakes Huron, Michigan, and Superior. Area 3 is the Welland Canal, which is serviced exclusively by the Canadian GLPA and, accordingly, is not included in the United States pilotage rate structure. Areas 1, 5, and 7 have been designated by Presidential Proclamation, pursuant to the Act, to be waters in which pilots must, at all times, be fully engaged in the navigation of vessels in their charge. Areas 2, 4, 6, and 8 have not been so designated because they are open bodies of water. While working in those undesignated areas, pilots must “be on board and available to direct the navigation of the vessel at the discretion of and subject to the customary authority of the master.” 11

    11 46 U.S.C. 9302(a)(1)(B).

    The Coast Guard is required 12 to establish new pilotage rates by March 1 of each year, employing a “full ratemaking . . . at least once every 5 years,” and an annual review and adjustment in the intervening years. Currently, the methodology for an “every 5 years” full ratemaking appears in 46 CFR part 404, appendix A, and the methodology for annual review and adjustment appears in part 404, appendix C. Definitions and formulas applicable to both methodologies appear in part 404, appendix B. We have not used the appendix C methodology since the 2011 ratemaking, and instead we have conducted a full appendix A ratemaking each year.

    12 46 U.S.C. 9303(f).

    V. Discussion of Proposed Changes to Ratemaking Methodology

    As we do each year, the NPRM for the 2016 ratemaking proposes new rates. In addition, this year's NPRM must also propose procedural changes to the ratemaking methodology, for two reasons.

    First, each year our ratemakings draw pilot and industry comments urging fundamental changes in our current ratemaking methodology.13 Based on our review of such comments over many years, we understand that these stakeholders believe the current methodology is unnecessarily complex and based on an inaccurate understanding of how pilotage actually operates within the Great Lakes system. The stakeholders believe the methodology produces improper rates, and wide annual rate variations that frustrate long term planning. In response, in 2009 we solicited public comments to better understand stakeholder perceptions of the ratemaking methodology,14 and promised to refer those comments to the Great Lakes Pilotage Advisory Committee (GLPAC),15 a stakeholder group that advises us on Great Lakes pilotage matters, for GLPAC's review and recommendations. Ever since, we have worked closely with GLPAC to identify ways in which the methodology might be improved.

    13 The current methodology was first proposed in 1989 (54 FR 11930), and made final in 1995 (60 FR 18366). It has not been significantly amended in the subsequent 20 years. For a discussion of the most recent cycle of public comments on our ratemaking methodology, and Coast Guard responses to those comments, see the 2015 final rule, 80 FR 10365 (Feb. 26, 2015), beginning at p. 10366, col. 3.

    14 74 FR 35838 (July 21, 2009).

    15 Statutorily mandated by 46 U.S.C. 9307 and operating pursuant to the Federal Advisory Committee Act, 5 U.S.C. Appendix 2.

    Second, we seek to ensure a safe, efficient, and reliable pilotage system for the Great Lakes and to eliminate possible barriers to achieving that goal. According to the pilot associations, the variance between projected revenue and actual revenue represents a significant challenge, because failure to achieve published revenue projections deprives them of the resources they need to provide safe, efficient, and reliable pilotage service. The associations cite challenges in making capital investments, recruiting and retaining adequately qualified pilots, achieving professional development and training schedules recommended by the American Pilots Association, updating technology, and achieving target compensation goals. The associations say that as a result, several experienced pilots have left the system, and that other desirable mariners have been discouraged from applying to become pilots. In this rulemaking, we propose specific regulatory changes intended to address these issues.

    The procedural changes we propose here were discussed in general at GLPAC's public meetings on July 23 and 24, 2014. Many of the specific changes we propose in this NPRM were submitted for GLPAC consideration at those meetings, and GLPAC unanimously recommended them for adoption.16 We consider GLPAC recommendations to have significant weight because the three pilot associations members represent pilots' interest and three U.S. shipping agent members represent owners. Although foreign citizens may not serve on GLPAC and therefore the foreign vessel owners are not GLPAC members, we believe the U.S. shipping agents are aware of and can adequately represent their interests. Also, the foreign vessel owners can and do to attend GLPAC meetings and raise their concerns during each meeting's public comment period.

    16See full transcript in our docket and also available at http://www.facadatabase.gov. Under 46 U.S.C. 9307(d)(1), the Coast Guard “shall, whenever practicable, consult with the Committee before taking any significant action relating to Great Lakes pilotage.”

    Please note that we propose making the following procedural and rate changes effective 30 days after publication of a final rule, almost half a year earlier than the August 1 effective date we have used in previous rulemakings. We specifically request comments on this proposed change. The change is justified for two reasons. First, the traditional August 1 date was tied to the August 1 effective date for annual changes in benchmark union contract rates. As we subsequently discuss, we are no longer using the contract in question and hence there is no inherent reason why we should continue following the traditional practice. Second, annual Great Lakes pilotage rate adjustments are required by law 17 to be set by March 1 of the year in which those adjustments take effect. By applying the normal Administrative Procedure Act effective date, 30 days following publication of a final rule,18 we will ensure that new rates will be announced prior to the usual early spring opening of the annual Great Lakes shipping season, and take effect near the opening date, thereby providing a single rate scheme for all shipping traffic affected by the adjusted rates.

    17 46 U.S.C. 9303(f).

    18 5 U.S.C. 553(d).

    We propose the following procedural changes. Please note that, for each of the amended sections in the following discussion, we propose extensive rewording in the interest of greater clarity and to remove unnecessary verbiage.

    46 CFR 401.405, 401.407, and 401.410. These sections contain rate tables and additional charges for specified Great Lakes waters. These rates and charges are subject to our annual rate reviews and revisions. Currently, the rate tables calculate rates differently for each area. Most of the pilotage costs charged in designated waters are for transits between two specified points. For example, as shown in current § 401.407(b), the current charge for transiting Lake Erie between Toledo and Southeast Shoal is $2,637. However, in undesignated waters, most of the pilotage charges are set at an hourly rate. For example, current § 401.407(a) shows that the cost for 6 hours of pilotage service on the undesignated waters of Lake Erie is $934. In addition, rates are set in designated and undesignated waters for miscellaneous services like vessel docking or undocking, cancellation of service, or the use of pilot boarding points other than those specified in § 401.450.

    This mixed approach complicates an otherwise simple transaction of paying for a pilot's service, either when the pilot is piloting on a vessel's bridge, or is at the vessel master's disposal to provide piloting. We propose eliminating the mixed approach in favor of setting, for each district, one hourly rate for designated waters, and another hourly rate for undesignated waters. Those rates would be different for each district based on differences across the districts in the infrastructure maintained by each district association (for example, differences in numbers and types of pilot boat, or in office arrangements) and in the distances that pilots must travel to and from assignments.

    Currently, some rates published in 46 CFR part 401 are based on hours, and others are based on the distance between two geographical points. GLPAC recommended re-baselining this billing scheme by a 5-1 vote in July 2014, and we propose doing so by basing all rates on hours.19 In addition to simplifying billing, an hourly-based approach recognizes the scarcity of pilots as a resource, and charges shippers for drawing on the limited number of these trained professionals.

    19 Transcript, “United States Coast Guard—Great Lakes Pilotage Advisory Committee—Thursday, July 24, 2014” (7/24/2014), p. 16. Discussion of this change, referred to by GLPAC members as “re-baselining” of rates, begins on July 23, 2014. See Transcript (7/23/2014), “United States Coast Guard—Great Lakes Pilotage Advisory Committee—Wednesday, July 23, 2014,” p. 277. Discussion resumes: Transcript, “United States Coast Guard—Great Lakes Pilotage Advisory Committee—Thursday, July 24, 2014” (7/24/2014), p. 5.

    Proposed § 401.405 would set each district's new base hourly rates. The proposed changed to § 401.405 would replace the current text in §§ 401.407 and 401.410 so those section would be removed.

    46 CFR 401.420 and 401.428. We propose amending § 401.420 (charges for a vessel's canceling, delaying, or interrupting pilotage service) and § 401.428 (charges for picking up or discharging a pilot other than at a pilot change point designated in § 401.450), and basing those charges on the applicable hourly rates we would specify in § 401.405. Billing under § 401.420 would preclude any additional charges for pilotage service during the hours in question.

    We would not retain § 401.428's current per diem allowance for a pilot who is picked up or discharged at a point other than a designated change point. Instead, if the pilot is kept aboard for the convenience of or at the request of the ship, the pilot would bill the vessel for the extra time involved, at the § 401.405 hourly rates, in addition to reasonable travel costs. If the pilot is kept aboard for circumstances outside of the ship's control, for example because a pilot boat is out of service, the pilot would bill the vessel only for reasonable travel costs. Finally, we would specify that for both sections, the “reasonable travel costs” cover travel to and from the pilot's base.

    In both sections we propose maintaining a similar calendar-based authorization for delays and charges associated with weather, traffic and ice. These are expected conditions at the beginning and end of the season; thus, our rate structure allows them as acceptable charges after November 30th or before May 1st each year.

    46 CFR 401.450. We propose adding the Iroquois Lock in the St. Lawrence Seaway as a new pilot change point, joining those currently listed in this section. The St. Lawrence Seaway transit often requires pilots to spend more than ten hours aboard a vessel. Such long assignments contribute to pilot fatigue, and have led the National Transportation Safety Board to recommend that we amend our Great Lakes pilotage regulations to promulgate “hours-of-service rules that prevent fatigue resulting from extended hours of service, insufficient rest within a 24-hour period, and disruption of circadian rhythms.” 20 We currently authorize a pilot to request a new pilot at the Iroquois Lock for overnight assignments, but our proposed addition of the Iroquois Lock as a permanent pilot change point would further help mitigate the problem of long assignments in the St. Lawrence Seaway. We would closely monitor the impact of the proposed change on the number of pilots needed in District One.

    20 Letter of June 29, 2015, Christopher A. Hart, Chairman of the National Transportation Safety Board to Adm. Paul F. Zukunft, Commandant, U.S. Coast Guard.

    46 CFR 403.120. We propose removing this section, which discusses notes to financial reports. Under our current financial reporting system those notes are not necessary.

    46 CFR 403.300. The accuracy of our pilotage rates depends on the accuracy of our information on each pilotage association's expenses and revenue. In the past, we have had difficulty validating the accuracy of this information, because some associations did not use a uniform financial reporting system. Therefore, we would require each association to use the current Coast Guard-approved and provided financial reporting system to certify their financial data annually. Currently, we approve the GLPMS for this purpose. We would continue to require an annual audit prepared by an independent certified public accountant.

    46 CFR 403.400. Currently, this section details how forms must be filled out to report pilot transaction records. Although GLPMS allows for paper reporting, in the near future it will also provide an electronic reporting feature. Therefore we would amend the section to remove language that could suggest paper reporting is required. We accept reports made in any medium supported by our currently-approved financial reporting system.

    46 CFR 404.1. Currently, this section explains the purpose of part 404, and summarizes ratemaking procedures that are described in the part 404 appendices. Because the remainder of part 404 would describe our procedures in detail, we propose removing these provisions. Instead, § 404.1 would state that our intention is to provide maximum ratemaking transparency and simplicity. It would state that the goal of ratemaking is to promote safe, efficient, and reliable pilotage service on the Great Lakes, by generating for each pilotage association sufficient revenue to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide an appropriate reserve to use for improvements. The section would provide for the annual audit of association expenses, which we have conducted for many years. It would also require annual audits of association revenue. Revenue audits promote transparency and help us gauge, and if necessary adjust, the way in which we try to align our revenue projections with an association's actual revenue. GLPAC endorsed revenue audits in July 2014,21 and they were first used in our 2015 ratemaking.

    21 Transcript (7/23/2014), p. 180.

    The section would also provide for a full ratemaking to establish base pilotage rates at least once every five years, with annual rate reviews and adjustments in the interim years, in accordance with the procedures described in part 404.

    46 CFR 404.2. We would close the numbering gap between current §§ 404.1 and 404.5, and redesignate § 404.5 as § 404.2. Section 404.5 currently describes which pilot association expenses can or cannot be recognized as appropriate to recover through the charging of pilotage rates. New § 404.2 would do the same thing, and make no substantive changes except with respect to the recognition of pilot benefits as an element of pilot compensation. Current § 404.5 states that the amounts paid for benefits will be recognized to the extent benefits are included in “the most recent union contract for first mates on Great Lakes vessels.” Sufficiently detailed and itemized access to relevant union contracts is no longer available for Coast Guard or public review. Therefore, instead of linking benefits to union contracts, we would recognize pilot compensation as covering all association-paid pilot benefits, including medical and pension benefits and profit sharing.

    46 CFR 404.100. We propose redesignating current § 404.10 as § 404.100. Section 404.10 currently provides a general introduction to the part 404 appendices on ratemaking methodology, but it contains no substantive requirements. It also currently describes the seven areas of the Great Lakes that are covered by the three pilotage districts, but since that information already appears in part 401, subpart D, it need not be repeated. We would replace this current content with general rules for the conduct of full ratemakings and rate reviews.

    Currently, and as we have done since 2012, each year we conduct a full appendix A ratemaking to establish base pilotage rates. However, we believe establishing base rates for multi-year periods would produce more predictable rates for both pilots and industry. GLPAC recommended this approach in July 2014.22

    22 Transcript (7/23/2014), p. 274. Discussion begins on p. 258.

    Under our proposed multi-year approach, we would conduct full ratemakings to establish base rates at least once every 5 years, with base rate reviews and necessary adjustments in interim years.23 In the interim years the Director would review the existing rates to ensure that they continue to promote safe, efficient, and reliable pilotage service. If interim-year adjustments are needed, they would be set either through automatic annual adjustments, pre-set during the previous full ratemaking in anticipation of economic trends over the multi-year term; or to reflect U.S. Bureau of Labor Statistics (BLS) Consumer Price Index (CPI-U); or, if neither of those methods would produce appropriate adjustments, through a new full ratemaking. Reviews and adjustments would be proposed for public comment.

    23 Per 46 U.S.C. 9303(f), full ratemakings are required at least once every 5 years, with reviews and adjustments of the base rate in the intervening years.

    For a transitional period over the next several years, we would conduct annual reviews of the rate and change the base rates, as needed, to ensure the new methodology's efficacy. This would also allow time for the pilots and industry to become familiar with the new ratemaking methodology (including the new hourly billing scheme). Following the transitional period, we would propose interim-year adjustments using any of the three methods described in the preceding paragraph.

    Ratemaking methodology. We propose simplifying the current appendix A ratemaking methodology, and replacing it with new §§ 404.101 through 404.108. In part, the new sections are similar to the “Steps” described in appendix A, but they would depart from those Steps in significant respects. We also propose removing current appendix B (ratemaking definitions and formulas) and appendix C (annual rate reviews; which has not been used since 2011) as these are no longer necessary. Table 1 shows how we propose to change appendix A's Steps in the new regulatory text.

    Table 1—Proposed Treatment of Appendix A Steps in 446 CFR 404.101-404.108 Appendix A step Proposed change Comments 1 Omit Unnecessary summary of substeps. 1.A Omit Move substance to § 404.2. 1.B Reword and move Move substance to new § 404.101 and move Step 1.B's second sentence to § 404.2. 1.C Reword and move Add similar language to § 404.102. 1.D Reword and move Add similar language to § 404.102. 2 Omit Unnecessary summary of substeps. 2.A Reword and move Add similar language to § 404.104. 2.B Reword and move Add similar language to § 404.103. 2.C Reword and move Add similar language to § 404.104. 3 Omit Unnecessary summary of substep 3.A. 3.A Reword and move Cover substance in § 404.106. 4 Omit Per recommendation approved by GLPAC 24 5 Add similar language to § 404.105. 6 Reword and move Per recommendation approved by GLPAC.25 Add similar language to § 404.106. 7, except last sentence of first paragraph Reword and move Add similar language to § 404.107. 7, last sentence of first paragraph Reword and move Add similar language to § 404.108.

    In the discussion that follows, we explain how our proposed new methodology would replace each Step of the appendix A methodology. Our calculations for 2016 rates, using the proposed methodology, appear in Part VI.

    24 Transcript (7/23/2014), p. 255. Discussion begins on p. 237.

    25 Id.

    46 CFR 404.101—Recognize previous operating expenses. Section 404.101 would correspond generally to current Steps 1.A and 1.B (pilot association submission of financial information and Coast Guard recognition of costs). We would describe our criteria for recognizing costs in § 404.2. The section proposes that the recognition of costs be based on independent third party audits, as has been the case for many years.

    46 CFR 404.102—Project operating expenses, adjusting for inflation or deflation. Section 404.102 would correspond to current Steps 1.C and 1.D and describe, as those Steps do, how we calculate an association's projected base non-compensation operating expenses. As we do today, we would apply a cost change factor for inflation or deflation, based on BLS Midwest Region CPI-U changes, to any of the operating expenses recognized under § 404.101 that could be affected by inflation or deflation.

    This NPRM proposes base rates to take effect in 2016. It considers audited pilot association expenses from 2013, the last full year for which reported and audited financial information is available. Current Step 1.C allows us to apply a cost change factor only for the first year after that (2014). This does not take into account consumer price index changes in subsequent years (2015 and 2016). In July 2014 GLPAC recommended that we take the subsequent years into account,26 and we propose doing so, using BLS, and the target inflation rate set by the Federal Reserve as a proxy for the Midwest Region CPI-U if BLS projection data is unavailable.

    26 Transcript (7/23/2014), p. 200. Discussion begins on p. 192.

    46 CFR 404.103—Determine number of pilots needed. Section 404.103 would correspond to current Step 2.B, which determines how many pilots are needed based on our projections of the bridge hours that pilots will serve during the upcoming shipping season. Because bridge hours represent only the time that a pilot is on board a vessel and providing basic pilotage service, pilots frequently have commented in previous years' ratemaking rules that we should also take into account necessary demands on pilot time that go beyond bridge hours. They have also commented that Step 2.B does not specify sources for our bridge hour projections and that inaccurate projections distort the rest of our ratemaking calculations. We agree and propose changing how we calculate the number of pilots needed.

    Instead of projecting future bridge hours to calculate the number of pilots needed, we would rely on an average of actual past data, as recommended by GLPAC in July 2014.27 Also as recommended by GLPAC,28 we would identify the number of pilots needed to meet each shipping season's peak pilotage demand periods without interruption to service. To do this, we would determine each area's peak demand over an historical multi-year base period, and the pilot assignment cycle time to determine how many pilots would have been needed to meet that peak demand. For both determinations, we use averages to compensate for normal year-to-year fluctuation in traffic and pilot availability over the historical multi-year base period. We would divide the peak demand figures by the per-pilot cycle time to determine the number of pilots needed to meet peak demand.

    27 Transcript (7/23/2014), p. 258. Discussion begins on p. 255.

    28 Transcript (7/23/2014), p. 237. Discussion begins on p. 201.

    Historical multi-year base period. Normally, the base period would cover the five most recent full shipping seasons, and our data source would be pilot association entries in a system approved under proposed § 403.300. Using a five year period should give us a reliable picture of recent Great Lakes traffic trends, and taking data from an approved system should ensure the use of consistent data across the three districts.

    If within the five most recent seasons data are unavailable or unreliable, we would consider substituting available and reliable data from another past shipping season or from a source other than an approved system, such as pilot association submitted data or Canadian GLPA data. Examples of unavailable or unreliable data are situations where data have not been recorded in an approved system, or come from an outlier year in which traffic was abnormally low or high and so could significantly distort our calculations. Generally, a traffic distortion of significant proportion, one that we would not expect be replicated within the next decade, would form the basis of this determination. That year's NPRM would explain, for public comment, our determination that normal data sources are unavailable or unreliable, and our selection of an alternate source. We specifically request public comment on whether there is an objective standard that we can and should use in each annual ratemaking, to determine whether a particular shipping season should be treated as an “outlier.”

    For our first historical multi-year base period, we do not think we have sufficient reliable data for five recent shipping seasons, and therefore we propose using only four seasons' data, as we explain in Part VI.

    Base seasonal work standard. This standard is intended to ensure that we consider all the time reasonably needed for a pilot to provide safe, efficient, and reliable pilotage service. We start by recognizing that pilots must provide pilotage whenever traffic demands it, and that the timing of this traffic is often unpredictable. Current regulations ensure only a minimum 10-hour rest period between a pilot's assignments.29 Historically, peak traffic demand is concentrated at the beginning of a shipping season, to handle the traffic buildup created by the previous season's closure, and at the end of the season, when vessels seek to complete their voyages before closure. During these peak periods, pilots are often on assignment nearly continuously. However, even in off-peak months, pilots frequently provide pilotage over many weeks without any significant rest, which over time threatens to degrade their ability to provide safe service. The pilots, GLPAC, and the Coast Guard agree that proper rest is an important concern to address.

    29 46 CFR 401.451.

    In July 2014, GLPAC recommended that we “take a serious look” at scheduling monthly 10 day recuperative rest periods for pilots.30 We believe a reasonable goal is to provide each pilot with 10 days' recuperative rest each month during the off-peak months of the season, if it is possible to do so and still meet traffic demands safely, efficiently, and reliably. A typical shipping season runs 270 or more days of availability; 10 days scheduled time off each month is line with other pilot associations that require pilot availability of 180-200 days per year. Many pilot associations work a multi-team concept of 2 weeks on followed by 2 weeks off but we find this problematic because of the compressed shipping season in the Great Lakes. Thus, we propose building into our base seasonal work standard only 200 workdays per pilot per season. The 70-day difference should facilitate a 10-day recuperative rest period for each pilot in each of the seven months (mid-April to mid-November) between peak traffic periods.

    30 Transcript (7/24/2014), p. 240. Discussion begins on p. 225. The seven non-peak months run from mid-April to mid-November. Recuperative rest would be available “up to” 10 days per month during those months, dependent on actual traffic patterns and the need to provide reliable pilotage service. Our goal is to regulate the pilotage system to maximize the likelihood of providing the full 10 days per month.

    In addition, we would determine, based on our analysis of best available data 31 and for each area, the reasonably necessary average work cycle associated with each pilot assignment. We propose including in the work cycle not only the pilot assignment itself (“bridge hours”), but also time for pilot travel time from the pilot's home or other base to and from assignments (including time spent on pilot boats to and from assignments), vessel delays and detention, the 10-hour mandatory rest between assignments,32 and administrative time for district association presidents who also serve as pilots.33

    31 Figures for 2016 are based on analysis from the June 28, 2013 Bridge Hour Definition and Methodology Final Report conducted for the Coast Guard by MicroSystems Integration, Inc., available in the docket and at http://www.uscg.mil/hq/cg5/cg552/pilotage.asp. This analysis is detailed in Appendix B, on page B-10 and presented in the Part VI calculations for proposed § 404.103.

    32 46 CFR 401.451. Note that this is not the same rest allowance as the previously-discussed 10 days' recuperative rest per month.

    33 This time is necessary to ensure effective and efficient association management and communication with industry and the Coast Guard.

    Adjustment of results. Dividing peak demand figures by per-pilot assignment figures usually will result in a fractional number that we would round either up or down, as seems most reasonable, to the nearest whole integer. Area totals would be added to determine each district's needed pilots. We could also make reasonable and necessary adjustments to take into account anticipated supportable circumstances that could affect the district's need for pilotage over the years for which base pilotage rates are being established.

    Needed vs. projected working pilots. In addition to showing the number of pilots needed in each district, we would also project the number of pilots we expect to be actually working full-time and fully compensated during the first shipping season of the new base period for which rates are being established. This projection becomes a key component of our calculations under proposed § 404.104. We believe the projection will closely match the first shipping season's actual pilot population, because our regulatory role gives us accurate data on the number of current applicant pilots and on the progress of those applicants through the application, training, and certificating processes,34 and because the continuous communication between the Coast Guard and the pilot association ensures that we are aware of its near-term hiring expectations.

    34 These processes are described in 46 CFR part 401, subpart B, and are sufficiently time-consuming that the number of new pilots likely to enter the system in the year for which base rates are being established can be ascertained with reasonable accuracy when we issue the NPRM proposing those rates. The NPRM's projections, of course, can be modified in the final rule, in response to public comments on the NPRM.

    46 CFR 404.104—Determine target pilot compensation. This step would correspond to current Steps 2.A (individual target compensation) and 2.C (total target compensation) except in three respects.

    First, Step 2.A sets two different target compensation figures, one for undesignated waters and the other for designated waters. Although we propose (in § 401.405) to set different rates for each district's designated and undesignated waters, we see no reasonable basis for discriminating between the target compensation of pilots on the basis of the distinction between designated or undesignated waters. In any waters and in any district, pilots need the same skills, and therefore we propose a single individual target pilot compensation figure across all three districts.

    Second, as we explained in discussing § 404.2, our compensation benchmark can no longer rely (as it does under Step 2.A) on contract compensation information that now is treated as proprietary and therefore not fully available for Coast Guard or public review. Instead, we propose considering only the most relevant current data that are available for Coast Guard and public review. Sources for such data may vary from one full ratemaking to another, and for supportable circumstances we would be able to make reasonable and necessary adjustments to the data. We review the sources we considered for this NPRM in Part VI.

    Third, we propose changing the way in which Step 2.C determines total pilot compensation in each district, which currently is to multiply individual target pilot compensation by the number of pilots needed. That assumes that a district has a full complement of pilots to share the district's target compensation, and it incorrectly increases the district's total compensation when not fully staffed. This may act as a disincentive for the district to reach the full complement that we think necessary for providing safe, efficient, and reliable pilotage. Instead, we propose multiplying individual target pilot compensation by the number of pilots we project, in § 404.103, to be working full time35 and compensated fully in the first shipping season of the new base period for which rates are being established.

    35 At various times during the season, typically during seasonal peaks, associations engage contract registered pilots to temporarily increase staffing and meet traffic demand requirements.

    46 CFR 404.105—Project return on investment. Currently, appendix A contains three complex steps related to a district association's return on investment: Steps 4 (calculation of investment base), 5 (determination of target rate of return on investment), and 6 (adjustment determination). In July 2014, GLPAC recommended eliminating Steps 4 and 6 entirely, as being unclear and having minimal effect on the final rates, and revising Step 5 as we now propose.36 We would project an association's return on investment by taking the sum of operating expenses from § 404.102 and target pilot compensation from § 404.104, and multiplying that sum by the preceding year's average annual rate of return for new high grade corporate securities (the same multiplier used in Step 5).

    36 Transcript (7/23/2014), p. 255. Discussion begins on p. 237.

    46 CFR 404.106—Project needed revenue. As discussed in connection with proposed § 404.105, we are not replicating the current Step 6 procedure for projecting each association's needed revenue for the next year. Instead, we propose calculating base needed revenue by adding projected base operating expenses from proposed § 404.102, the total base target pilot compensation from proposed § 404.104, and the base return on investment from proposed § 404.105. We believe this is a more transparent procedure and that it adequately projects an association's needed revenue.

    46 CFR 404.107—Initially calculate base rates. This would correspond to current Step 7 of appendix A and initially set base rates for the designated and undesignated waters of each district, subject to modification or finalization under proposed § 404.108.

    Currently, Step 7 takes projected revenue needed and divides it by projected revenue. The resulting rate multiplier is the percentage by which rates should be changed, subject to adjustment as explained in the last sentence of Step 7's first paragraph (we propose discussing that adjustment in § 404.108). This bases the rate multiplier on a calculation that depends on the accuracy of our revenue projection.

    Instead, we propose initially calculating rates by dividing the projected needed revenue (§ 404.106) by available and reliable data for actual hours worked by pilots in each district's designated and undesignated waters during a multi-year base period. We would average this data to compensate for normal traffic fluctuation from one season to another.

    As we propose for § 404.103, the base period would normally consist of the five most recent full shipping seasons. Normally, our data source would be pilot association entries in the GLPMS, or another system we would approve under proposed § 403.300. If, within the five most recent seasons, data are unavailable or unreliable, we would substitute available and reliable data from another past shipping season or from a source other than GLPMS, including pilot association data or Canadian GLPA data. For example, if data has not been recorded in a system approved under § 403.300, or comes from an outlier year in which traffic was abnormally low or high it could significantly distort our calculations; we would look to an alternative source of available shipping data.

    In some years and in some districts, dividing needed revenue by the multi-year average hours could produce significantly higher rates for designated waters than for undesignated waters. This imbalance could create unnecessary financial risk to the pilot associations by focusing revenue generation too narrowly in designated waters at the expense of undesignated waters. To ensure safe, efficient, and reliable pilotage in all Great Lakes waters whether designated or undesignated, we therefore propose applying a ratio to adjust the balance between rates, limiting the designated-water rate to no more than twice the undesignated-water rate. This would correct the undesirable rate imbalance, without affecting the total needed revenue projected for each district.

    46 CFR 404.108—Review and finalize rates. This would correspond to the last sentence in the first paragraph of appendix A's Step 7, which for “supportable circumstances” permits discretionary adjustments to initial rate calculations. Supportable circumstances include factors defined in current U.S.-Canadian agreements relating to Great Lakes pilotage.37 Pilots and industry have commented unfavorably on past exercises of “Step 7 discretion.” We propose specifying that any modification to the initial rates set under § 404.107 must be necessary and reasonable, as well as justified by supportable circumstances. Under proposed § 404.100, we would continue to submit any proposed adjustment for public comment, which could result in our omitting or modifying the proposed adjustment. Any adjustment would be subject to § 404.107's limitation on the disparity between rates for designated and undesignated waters.

    37 The Memorandum of Understanding can be viewed at http://www.uscg.mil/hq/cg5/cg552/docs/2013%20MOU%20English.PDF

    VI. Discussion of Proposed Rate Changes

    We propose new rates and 46 CFR 401.401 surcharges for 2016. We reviewed the independent accountant's financial reports for each association's 2013 expenses and revenues. Those reports, which include pilot comments on draft versions and the accountant's response to those comments, appear in the docket.38

    38See “Summary—Independent Accountant's Report on Pilot Association Expenses, with Pilot Association Comments and Accountant's Responses.”

    The following discussion applies the proposed ratemaking methodology that is discussed in section V of this preamble.

    Recognize previous year's operating expenses (proposed § 404.101). We reviewed and accepted the accountant's final findings on the 2013 audits of association expenses.

    Tables 2 through 4 show each association's recognized expenses.

    Table 2—Recognized Expenses for District One Reported expenses for 2013 District One Area 1 designated St. Lawrence River Area 2
  • undesignated
  • Lake Ontario Total
    Operating Expenses: Other Pilotage Costs: Pilot subsistence/Travel $281,488 $168,508 $449,996 License insurance 26,976 25,010 51,986 Payroll taxes 65,826 51,244 117,070 Other 6,925 5,460 12,385 Total other pilotage costs 381,215 250,222 631,437 Pilot Boat and Dispatch Costs: Pilot boat expense 131,193 102,077 233,270 Dispatch expense Payroll taxes 9,169 7,230 16,399 Total pilot and dispatch costs 140,362 109,307 249,669 Administrative Expenses Legal—general counsel 631 498 1,129 Legal—shared counsel (K&L Gates) 12,736 10,040 22,776 Insurance 22,525 17,756 40,281 Employee benefits 11,063 7,868 18,931 Payroll taxes 5,190 4,093 9,283 Other taxes 22,175 17,486 39,661 Travel 524 413 937 Depreciation/auto leasing/other 42,285 33,333 75,618 Interest 15,151 11,943 27,094 APA Dues 13,680 10,830 24,510 Dues and subscriptions 280 220 500 Utilities 4,920 3,878 8,798 Salaries 54,153 42,691 96,844 Accounting/Professional fees 5,091 4,009 9,100 Pilot Training Other 8,834 6,954 15,788 Total Administrative Expenses 219,238 172,012 391,250 Total Operating Expenses (Other Costs + Pilot Boats + Admin) 740,815 531,541 1,272,356 Proposed Adjustments (Independent CPA) Payroll taxes (1,855) (1,750) (3,605) TOTAL CPA ADJUSTMENTS (1,855) (1,750) (3,605) Proposed Adjustments (Director): Dues and subscriptions (280) (220) (500) APA Dues (2,052) (1,625) (3,677) Legal—shared counsel (K&L Gates) (12,736) (10,040) (22,776) Dock Adjustment * 11,936 9,409 21,345 Surcharge Adjustment ** (54,481) (42,948) (97,429) TOTAL DIRECTOR'S ADJUSTMENTS (57,613) (45,424) (103,037) Total Operating Expenses (OpEx + Adjustments) 681,347 484,368 1,165,715 * Based on the discussion without objection in the 2014 GLPAC meeting on this subject, this adjustment allocates $21,345 to District 1 to ensure complete recoupment of costs associated with upgrading the dock in Cape Vincent. Revenue projection shortfalls, confirmed by the revenue audits, resulted in District 1 not fully recouping the costs of the dock through previous rulemakings. ** District One collected $146,424.01 with an authorized 3% surcharge in 2014. The adjustment represents the difference between the collected amount and the authorized amount of $48,995 authorized in the 2014 final rule. Note: Numbers may not total due to rounding.
    Table 3—Recognized Expenses for District Two Reported expenses for 2013 District Two Area 4
  • undesignated
  • Lake Erie Area 5 designated Southeast Shoal to Port Huron, MI Total
    Operating Expenses: Other Pilotage Costs: Pilot subsistence/Travel $84,164 $126,246 $210,410 License insurance 6,168 9,252 15,420 Payroll taxes 44,931 67,397 112,328 Other 33,021 49,532 82,553 Total other pilotage costs 168,284 252,427 420,711 Pilot Boat and Dispatch Costs: Pilot boat expense 142,936 214,405 357,341 Dispatch expense 7,080 10,620 17,700 Employee benefits 60,665 90,997 151,662 Payroll taxes 8,316 12,474 20,790 Total pilot and dispatch costs 218,997 328,496 547,493 Administrative Expenses: Legal—general counsel 3,414 5,122 8,536 Legal—shared counsel (K&L Gates) 7,304 10,956 18,260 Legal—USCG litigation 231 346 577 Office rent 26,275 39,413 65,688 Insurance 9,175 13,762 22,937 Employee benefits 20,586 30,879 51,465 Payroll taxes 4,899 7,349 12,248 Other taxes 14,812 22,217 37,029 Depreciation/auto leasing/other 22,956 34,434 57,390 Interest 3,439 5,159 8,598 APA Dues 8,208 12,312 20,520 Utilities 14,310 21,465 35,775 Salaries 42,633 63,949 106,582 Accounting/Professional fees 9,294 13,940 23,234 Pilot Training Other 9,757 14,638 24,395 Total Administrative Expenses 197,293 295,941 493,234 Total Operating Expenses (Other Costs + Pilot Boats + Admin) 584,574 876,864 1,461,438 Proposed Adjustments (Independent CPA): Insurance (2,362) (3,544) (5,906) Employee benefits (360) (541) (901) Depreciation/auto leasing/other (6,391) (9,587) (15,978) TOTAL CPA ADJUSTMENTS (9,113) (13,672) (22,785) Proposed Adjustments (Director): APA Dues (1,231) (1,847) (3,078) Legal—shared counsel (K&L Gates) (7,304) (10,956) (18,260) Legal—USCG litigation (231) (346) (577) TOTAL DIRECTOR'S ADJUSTMENTS (8,766) (13,149) (21,915) Total Operating Expenses (OpEx + Adjustments) 566,695 850,043 1,416,738
    Table 4—Recognized Expenses for District Three Recognizable expenses Reported expenses for 2013 District Three Areas 6 and 8
  • undesignated
  • Lakes Huron, Michigan, and
  • Superior
  • Area 7 Designated St. Mary's River Total
    Operating Expenses: Other Pilotage Costs: Pilot subsistence/Travel $337,978 $112,660 $450,638 License insurance 13,849 4,616 18,465 Payroll taxes Other 15,664 5,221 20,885 Total other pilotage costs 367,491 122,497 489,988 Pilot Boat and Dispatch Costs: Pilot boat expense 435,353 145,118 580,471 Dispatch expense 140,440 46,814 187,254 Payroll taxes 15,680 5,227 20,907 Total pilot and dispatch costs 591,473 197,159 788,632 Administrative Expenses: Legal—general counsel 567 189 756 Legal—shared counsel (K&L Gates) 20,260 6,754 27,014 Office rent 7,425 2,475 9,900 Insurance 8,098 2,699 10,797 Employee benefits 123,002 41,001 164,003 Payroll taxes 10,272 3,424 13,696 Other taxes 1,383 461 1,844 Depreciation/auto leasing/other 24,237 8,079 32,316 Interest 2,403 801 3,204 APA Dues 18,895 6,299 25,194 Dues and subscriptions 4,275 1,425 5,700 Utilities 32,672 10,891 43,563 Salaries 89,192 29,731 118,923 Accounting/Professional fees 20,682 6,894 27,576 Pilot Training Other 11,260 3,753 15,013 Total Administrative Expenses 374,623 124,876 499,499 Total Operating Expenses (Other Costs + Pilot Boats + Admin) 1,333,587 444,532 1,778,119 Proposed Adjustments (Independent CPA): Pilot subsistence/Travel (5,183) (1,728) (6,911) Payroll taxes 103,864 34,621 138,485 Dues and subscriptions (4,275) (1,425) (5,700) TOTAL CPA ADJUSTMENTS 94,406 31,468 125,874 Proposed Adjustments (Director): APA Dues (2,834) (945) (3,779) Legal—shared counsel (K&L Gates) (20,260) (6,754) (27,014) TOTAL DIRECTOR'S ADJUSTMENTS (23,094) (7,699) (30,793) Total Operating Expenses (OpEx + Adjustments) 1,404,899 468,301 1,873,200

    Project next year's operating expenses, adjusting for inflation or deflation (proposed § 404.102). We based our 2014 and 2015 inflation adjustments on BLS data from the Consumer Price Index for the Midwest Region of the United States,39 and projected it for 2016 based on the target inflation rate set by the Federal Reserve.40 The adjustments are shown in Tables 5 through 7.

    39 Available at http://www.bls.gov/data. Select “One Screen Data Search” under “All Urban Consumers (Current Series) (Consumer Price Index—CPI)”. Then select “Midwest urban” from Box 1 and “All Items” from Box 2. Our numbers for 2014 and 2015 are generated through this query and formatted to show annual percentage changes.

    40 Further discussion available on the Federal Reserve target inflation rate is on their Web site at http://www.federalreserve.gov/newsevents/press/monetary/20120125c.htm and http://www.federalreserve.gov/faqs/money_12848.htm.

    Table 5—Inflation Adjustment, District One District 1 Designated Undesignated Total Total Operating Expenses (Step 1) $681,347 $484,368 $1,165,715 2014 Inflation Modification (@1.4%) 9,539 6,781 16,320 2015 Inflation Modification (@1.5%) 10,363 7,367 17,731 2016 Inflation Modification (@2%) 14,025 9,970 23,995 Adjusted 2016 Operating Expenses 715,274 508,486 1,223,760 Table 6—Inflation adjustment, District Two District 2 Undesignated Designated Total Total Operating Expenses (Step 1) $566,695 $850,043 $1,416,738 2014 Inflation Modification (@1.4%) 7,934 11,901 19,834 2015 Inflation Modification (@1.5%) 8,619 12,929 21,549 2016 Inflation Modification (@2%) 11,665 17,497 29,162 Adjusted 2016 Operating Expenses 594,913 892,370 1,487,283 Table 7—Inflation adjustment, District Three District 3 Undesignated Designated Total Total Operating Expenses (Step 1) $1,404,899 $468,301 $1,873,200 2014 Inflation Modification (@1.4%) 19,669 6,556 26,225 2015 Inflation Modification (@1.5%) 21,369 7,123 28,491 2016 Inflation Modification (@2%) 28,919 9,640 38,558 Adjusted 2016 Operating Expenses 1,474,855 491,620 1,966,474

    Determine number of pilots needed (proposed § 404.103). We first consider if reliable data are available from the five most recent full shipping seasons, in this case the 2010-2014 seasons, to populate a five-season historical multi-year base period. For the reasons we have discussed extensively with stakeholders, we consider 2014 to have been an unreliable outlier season, because of an abnormal 17% increase in shipping traffic, extended ice conditions,41 and associated significant delays. The 2014 season also made extensive use of double pilotage, the practice of assigning two pilots to a vessel, normally because of unusually hazardous conditions such as ice and the seasonal removal of aids to navigation. We then consider 2009, the most recent season before 2010. Again based on discussions with stakeholders, we must consider 2009 to have been an outlier too, because of abnormally low traffic from the 2008 global recession.42 We then consider if reliable source data is available before 2009, and conclude that it is not available for years prior to the introduction of GLPMS in 2009. We specifically request public comment on other possible sources of available and reliable data for shipping seasons prior to 2009. Pending receipt of such information, we restrict our multi-year base period to the four shipping seasons 2010 through 2013.

    41 The Canadian Great Lakes Pilotage Authority's Annual Report for 2014 states, p. 3: “Traffic in 2014 increased by 17% over 2013 mainly due to the significant movement of the 2013 Western Canadian grain crop to export markets overseas. The economic recovery of the American economy has also accounted for increased trade in the Great Lakes corridor.” The Annual Report also states, p. 7, “[d]elays due to shortages in pilots experienced in 2014 was directly attributable to the increase in traffic being serviced by the existing pool of pilots as well as a higher level of over carried pilots due to the extreme ice conditions experienced at the start of the navigation season.”

    42See [Canadian] Great Lakes Pilotage Authority, Annual Report 2009, p. 2: “The world economic recession which began in late 2008 and manifested itself in 2009 had a significant effect on ship traffic in the St. Lawrence Seaway/Great Lakes Region where traffic and cargo volumes decreased by 25% from the previous year.”

    Next, we calculate the average cycle time associated with each pilot assignment, in each area, over the 2010-2013 base period. In the future, we intend to use GLPMS data to track cycle time, but that data is not available for 2010 through 2014. We consider our best source for that base period's cycle time to be the Bridge Hour Definition and Methodology Final Report prepared on the Coast Guard's behalf in June 2013.43 Although we expect GLPMS data to produce better data in the future, the 2013 report relied heavily on pilot input and drafts were made widely available to the pilots for their review and comment. Table 8 shows the 2013 report's calculation of the pilot work cycle for each area.

    43Bridge Hour Definition and Methodology Final Report, MicroSystems Integration, Inc. (June 25, 2013), available in the docket and at http://www.uscg.mil/hq/cg5/cg552/pilotage.asp. This analysis is detailed in Appendix B of the report, on page B-10.

    Table 8—Cycle Time, 2013 Report Trip time
  • (hrs)
  • Travel
  • (hrs)
  • Pilot boat
  • transit
  • (hrs)
  • Delay
  • (hrs)
  • Admin
  • (hrs)
  • Total
  • time on
  • assignment
  • (hrs)
  • Mandatory
  • rest
  • (hrs)
  • Pilot
  • assignment
  • cycle
  • (hrs)
  • D1 Area 1 7.7 2.9 0.3 0.7 0.5 12.1 10 22.1 Area 2 10.4 4.0 0.6 0.9 0.5 16.4 10 26.4 Area 3 Welland Canal Exclusive to Canadian Pilots D2 Area 4 11.1 4.2 0.4 0.7 0.5 16.9 10 26.9 Area 5 6.1 2.3 0.9 0.4 0.5 10.2 10 20.2 D3 Area 6 22.5 1.6 0.8 1.0 0.5 26.4 10 36.4 Area 7 7.1 1.4 2.2 0.3 0.5 11.5 10 21.5 Area 8 21.6 1.8 1.9 3.3 0.5 29.1 10 39.1

    We then determine the average peak late-season traffic demand over the base period, as shown in Table 9. Table 9 also shows the average number of pilots that would have been needed to meet the peak demand, and for comparison purposes shows the average number of needed pilots for the 2010-2013 time period (38) authorized for the pilot associations.

    Table 9—Average Peak Traffic Demand and Pilot Requirements, 2010-2013 District 1 Area 1
  • (designated)
  • Area 2
  • (undesignated)
  • District 2 Area 4
  • (undesignated)
  • Area 5
  • (designated)
  • District 3 Area 6
  • (undesignated)
  • Area 7
  • (designated)
  • Area 8
  • (undesignated)
  • Average late-season peak assignments per day 5 5 5 5 4 4 4 Average number of pilots needed to meet peak demand (total = 50) 10 5 5 10 6 8 6 Average authorized pilots, 2010-2013 (total = 38) 6 5 4 6 7 4 6 Authorized pilots, 2015 (total = 36) 6 5 4 6 6 4 5

    As shown in Table 8, according to the 2013 report cycle time for pilots in designated waters is a little over 20 hours. This implies that, on average in late seasons over the base period, one pilot could move one vessel per day. However, to fully meet peak season demand, the pilot associations must be staffed to provide double pilotage, and Table 9 reflects that doubling in the number of pilots needed in the designated waters of Areas 1, 5, and 7.

    Except in extreme circumstances, double pilotage is not required in the open and undesignated waters of Areas 2, 4, 6, and 8, and Table 9 shows no doubling in those areas. However, the Table does show a 50% increase from the one pilot-one vessel standard in undesignated Areas 6 and 8, which are located in the large western Great Lakes. Areas 6 and 8 are not contiguous, but both flank the designated waters of Area 7. Travel times in Areas 6 and 8 are greater than they are in the undesignated waters of smaller Lakes Erie and Ontario, and on average a pilot needs 1.5 days per vessel, not just 1, to move a vessel. Therefore, Table 9 shows 6 pilots, not 4, in each of Areas 6 and 8. This number will ensure that the four ships shown as moving daily through Area 7 could be moved through the undesignated waters at the same rate.

    Please note that the addition of Iroquois Lock to the District One change points, previously discussed in connection with our proposed amendment to § 401.450, could eventually support adding pilots in that district, but is not factored into Table 9.

    Based on our Table 9 figures, and as shown in Table 10, we find that 50 pilots are needed over the period for which 2016 base rates would be in effect, as opposed to the 36 currently authorized pilots shown in Table 9. Table 10 also shows that based on our best current information we project there to be only 42 fully working and fully compensated pilots (“working pilots”) in 2016. Our goal is to help the pilot associations close the gap between needed pilots and working pilots as soon as possible.

    Table 10—Pilots Needed; Pilots Projected To Be Working District One District Two District Three Needed pilots, period for which 2016 rates are in effect (total = 50) 15 15 20 Working pilots projected for 2016 (total = 42) 13 12 17

    At this time, we see no need to adjust the number of pilots shown in Table 10.

    Determine target pilot compensation (proposed § 404.104). Our discussion of our calculations under this section contains two sections, the first section limited to the Coast Guard's own analysis, and the second section discussing target compensation figures proposed by the pilot associations.

    Coast Guard analysis and calculations. For this 2016 ratemaking, we considered three sources for possible benchmark compensation data that provide compensation data for occupations similar to that of a Great Lakes pilot. All of these sources provide current and available data that is open for public review: Canadian Laurentian Pilotage Authority (LPA) pilot compensation data; masters, mates and pilots wage data from the BLS, and Canadian GLPA registered pilot compensation. We specifically request public comments suggesting any other current, reliable, and publicly available sources we should consider in setting the 2016 season's target pilot compensation.

    Table 11 presents average recent compensations for each of these three sources.

    44http://www.glpa-apgl.com/annualReports_e.asp.

    45http://www.pilotagestlaurent.gc.ca/publications_e.asp.

    46http://www.bls.gov/oes—Captains, Mates, and Pilots of Water Vessels (http://www.bls.gov/oes/current/naics4_483100.htm—53-5021).

    Table 11—Comparing Pilot Compensation and Wage Information Average Canadian registered pilot compensation 44
  • (CAD)
  • Average
  • Laurentian pilot
  • compensation
  • (CAD) 45
  • Bureau of Labor Statistics Wages 46
  • (USD)
  • 2011 $233,567 $335,864 $73,590 2012 247,145 347,615 78,030 2013 268,552 349,022 80,960 2014 323,641 75,000 Average 268,226 344,167 76,895

    We evaluated the suitability of each of these sources as a benchmark for setting our target pilot compensation.

    The LPA services all vessels that ultimately transit through the Saint Lawrence River and Great Lakes. The majority of their pilotage service is provided primarily to vessels that stop in Montreal, which are typically larger than vessels that proceed upbound into the Great Lakes. The LPA also provides service throughout the year, whereas Great Lakes navigation is closed for a portion of the year due to ice conditions and lock maintenance. Due to these differences between LPA and U.S. Great Lakes pilotage conditions, we find LPA compensation information unsuitable as a benchmark for setting target U.S. pilot compensation.

    BLS data for masters, mates, and pilots cover officers whose duties and responsibilities are different from those of a U.S. Great Lakes pilot. For example, unlike U.S. Great Lakes pilots, most of these officers are not directly responsible for the safe navigation of vessels of any tonnage through restricted waters. Further, this data is skewed downward by the higher number of lower wage mates, who do not hold the same licenses as masters and pilots. Therefore, we find this information is also unsuitable as a benchmark for setting target pilot compensation.

    Canadian GLPA pilots provide service that is almost identical to the service provided by U.S. Great Lakes pilots. However, unlike the U.S. pilots, Canadian GLPA pilots are Canadian government employees and therefore have guaranteed minimum compensation with increases for high-traffic periods, retirement, healthcare and vacation benefits, and limited professional liability. In addition, GLPA pilots have guaranteed time off while U.S. pilots must be available for service throughout the shipping season and without any guaranteed time off; and due to historic staffing differences U.S. pilots get less time off than GLPA pilots. Nevertheless, because they work under the same conditions, months, and vessels (sometimes concurrently) as the U.S. pilots, we find that GLPA compensation information is the most suitable available benchmark for establishing target pilot compensation.

    The calculations shown in Tables 12 through 14 take the last four years of GLPA data (covering actual compensation, 2011 through 2014), adjust for foreign exchange differences and inflation,47 and project future GLPA compensation for 2015 and 2016.

    47 Based on Midwest CPI-U from BLS. Available at http://www.bls.gov/data. Select “One Screen Data Search” under “All Urban Consumers (Current Series) (Consumer Price Index—CPI)”. Then select “Midwest urban” from Box 1 and “All Items” from Box 2. Our numbers for 2011-2014 are generated through this query and formatted to show annual percentage changes.

    Table 12 shows GLPA compensation for 2011 through 2014, adjusted for exchange rates in each year.

    Table 12—Recent History of Canadian GLPA Pilot Compensation Year Canadian Great Lakes pilot
  • compensation
  • (CAD)
  • Average annual currency
  • conversion
  • (CAD to USD)*
  • Canadian Great Lakes pilot
  • compensation
  • (USD)
  • 2014 $323,641 1.149 $281,672 2013 268,552 1.071 250,749 2012 247,145 1.04 237,639,639 2011 233,567 1.029 226,984 *All figures reflect annual average currency conversions for the time periods provided. CAD is divided by the listed currency conversion factor to convert to USD. A complete table of these exchange rates is provided by the Internal Revenue Service here: http://www.irs.gov/Individuals/International-Taxpayers/Yearly-Average-Currency-Exchange-Rates.

    Table 13 takes the figures from Table 12 and adjusts them for inflation in each year, similar to way Tables 5-7 adjust U.S. pilot association operating expenses.

    Table 13—Inflation Adjustments Year USD
  • (from Table 11)
  • 2012
  • Inflation
  • adjustment
  • (@3.2%)
  • 2013
  • Inflation
  • adjustment
  • (@2%)
  • 2014
  • Inflation
  • adjustment
  • (@1.4%)
  • 2015
  • Inflation
  • adjustment
  • (@1.5%)
  • 2016
  • Inflation
  • projection
  • (@2%) *
  • Total (2016 USD)
    2014 $281,672 $4,225 $5,633 $291,531 2013 250,749 $3,510 3,761 5,015 263,036 2012 237,639 $4,753 3,327 3,565 4,753 254,036 2011 226,984 $7,263 4,540 3,178 3,405 4,540 249,909 See footnote 44 on previous page for supporting inflation data. *See previous discussion on Federal Reserve target inflation rate for 2016 projections. See also policy statement of the Bank of Canada regarding their 2% target inflation rate at http://www.bankofcanada.ca/core-functions/monetary-policy/inflation/.

    Using this data, converted to 2016 USD, we then review the percentage change in Canadian compensation.

    Table 14—Analysis of Canadian GLPA Pilot Compensation Year Canadian Great
  • Lakes pilot
  • compensation
  • (from Table 12)
  • Percent change
    2014 $291,531 10.8 2013 63,036 3.5 2012 254,037 1.7 2011 249,910
    We are basing our target pilot compensation calculations on 2013 GLPA compensation. We think 2013 provides more reliable current benchmark information than 2014. There is a moderate annual growth in compensation between 2011 and 2013, but a significant nearly 11% increase in 2014. We believe that increase is attributable to a 17% Canadian traffic increase in 2014, compounded by extended ice conditions.

    Table 14 shows that, from the 2013 figure of $263,036, we project forward an annual 2.6% increase to align with the general trend of compensation increases for Canadian pilots. This is an average of the increases from 2012 and 2013. Table 15 shows the results of these calculations:

    Table 15—Projected Increases in Canadian Great Lakes Pilot Compensation Year Projected
  • Canadian
  • Great Lakes
  • pilot
  • compensation
  • (2016 USD) *
  • 2016 $284,091 2015 276,892 2014 269,875 2013 263,036 *All figures from 2014 forward are projections only for the purposes of this rulemaking and do not reflect actual Canadian compensation. Each year is increased 2.6% in line with average compensation increases in 2012 and 2013.

    As previously discussed, the difference in status between GLPA employees and independent U.S. pilots creates significant differences in their relative compensation. These differences constitute supportable circumstances for adjusting U.S. target pilot compensation by increasing it 10% over our projected 2016 GLPA compensation figure, taking our proposed U.S. individual target pilot compensation to $312,500. Although the appropriateness of 10% as an adjustment figure was not put to a vote, that figure and no other was cited by several speakers at GLPAC's July 2014 meeting 48 as balancing the different status of the U.S. and GLPA pilots. We invite public comment on whether the 10% adjustment figure is appropriate for the 2016 rate.

    48 Transcript (7/24/2014), pp. 43-45.

    Table 16 shows the total target compensation for each district, the result of multiplying our proposed individual target compensation of $312,500 by the number of working pilots shown in Table 10. Our proposed total target pilot compensation for 2016 is $13,125,000.

    Table 16—Total Target Pilot Compensation per District District One District Two District Three Target compensation per pilot $312,500 $312,500 $312,500 Number of working pilots 13 12 17 Total target pilot compensation (total, all districts = $13,125,000) $4,062,500 $3,750,000 $5,312,500

    At this time, and subject to the public comments that we specifically request on this point, we find no economic data that supplies supportable circumstances for additional adjustments to target pilot compensation.

    Pilot association proposals. Prior to preparing this NPRM, we discussed the determination of target pilot compensation with GLPAC and with the pilot associations. At its July 2014 meetings, GLPAC considered and rejected, by a vote of 4 to 2 with no abstentions, a proposed individual target pilot compensation starting at $295,000. We interpreted the $295,000 figure to represent total compensation, including both wages and benefits.49

    49 Transcript (7/24/2014), p. 45. Discussion begins on p. 20. Under 46 U.S.C. 9307(d)(3), GLPAC recommendations require approval by “at least all but one of the members then serving on the committee;” hence a 4-2 vote does not pass. For the Coast Guard's grounds for interpreting “compensation” to include both wages and benefits, and not wages alone, see pp. 43-45 of the transcript.

    On May 8, 2015, the pilot associations requested that we consider $355,000 as an individual target pilot compensation figure, which they said would not guarantee, but might ensure, a sufficient amount to attract reasonable pilot candidates and retain current pilots. This request was accompanied by an enclosure supporting a minimum target figure of almost $394,000.50 In support of the $394,000 figure, the pilots cite the $295,000 compensation that a majority (but not the required super-majority) 51 of GLPAC members supported in July 2014. The pilots interpreted the $295,000 figure to include wages only, not benefits. To that figure, they add the benefit amounts used in our 2012 ratemaking, which ranged from $64,678 in undesignated waters to $73,639 in designated waters. They then adjust the wage and benefit figures for inflation to arrive at a total minimum compensation of approximately $394,000.

    50 Email, Capt. John Boyce, President, St. Lawrence Seaway Pilots Association, to Director, Great Lakes Pilotage, May 8, 2015. The actual figure stated in the enclosure to this email is $393,996, which we round for convenience to $394,000.

    51 46 U.S.C. 9307(d)(3).

    At this time, we decline to adopt either of the pilots' proposed amounts. To the extent they rely on the $295,000 compensation figure considered, and majority-approved but officially rejected by GLPAC, we do not accept the pilots' contention that GLPAC discussed that figure in the context of wages only, and not benefits; we believe the discussion considered total compensation, both wages and benefits. We also note that our proposed individual target pilot compensation, $312,500, is 10% higher than what we project as 2016 GLPA individual pilot compensation. By contrast, $355,000 would be about 25% higher than the GLPA compensation, and $394,000 would be about 39% higher; we question whether such large disparities can be justified. We specifically request public comment and supporting data on the pilot associations' proposal for setting the 2016 individual target pilot compensation.

    Determine return on investment (proposed § 404.105). The 2013 average annual rate of return for new issues of high-grade corporate securities was 4.24 percent.52 We apply that rate to each district's projected total operating and compensation expenses (from §§ 404.102 and 404.104) to determine the allowed return on investment for the shipping season, as shown in Table 17.

    52 Based on Moody's AAA corporate bonds, which can be found at: http://research.stlouisfed.org/fred2/series/AAA/downloaddata?cid=119.

    Table 17—Determination of Return on Investment District 1 Designated Undesignated District 2 Undesignated Designated District 3 Undesignated Designated Adjusted Operating Expenses (Step 2) $715,274 $508,486 $594,913 $892,370 $1,474,855 $491,620 Total Target Pilot Compensation (Step 4) 2,187,500 1,875,000 1,562,500 2,187,500 3,437,500 1,875,000 Total 2016 Expenses 2,902,774 2,383,486 2,157,413 3,079,870 4,912,355 2,366,620 Return on Investment (4.24%) 123,078 101,060 91,474 130,587 208,284 100,345

    Project needed revenue for next year (proposed § 404.106). Table 18 shows each association's needed revenue, determined by adding the proposed § 404.102 operating expense, the proposed § 404.104 total target compensation, and the proposed § 404.105 return on investment. Across all three districts, the projected needed revenue for 2016 is $18,557,345, up actual revenue of $10,899,506 reported in our 2013 audits.

    Table 18—Revenue Needed District 1 Designated Undesignated District 2 Undesignated Designated District 3 Undesignated Designated Adjusted Operating Expenses (Step 2) $715,274 $508,486 $594,913 $892,370 $1,474,855 $491,620 Total Target Pilot Compensation (Step 4) 2,187,500 1,875,000 1,562,500 2,187,500 3,437,500 1,875,000 Return on Investment (Step 5) 123,078 101,060 91,474 130,587 208,284 100,345 Total Revenue Needed (Total for all districts = $18,557,345) 3,025,852 2,484,546 2,248,887 3,210,457 5,120,638 2,466,965

    Make initial base rate calculations (proposed § 404.107). To make our initial base rate calculations, we first establish a multi-year base period from which available and reliable data for actual pilot hours worked in each district's designated and undesignated waters can be drawn. As discussed in connection with our calculations for proposed § 404.103, and for the same reasons, for 2016 our multi-year base period covers the four shipping seasons from 2010 through 2013.

    Table 19—Hours Worked, 2010-2013, Designated and Undesignated Waters Year Pilotage district D1 Designated waters
  • (hours)
  • D1 Undesignated waters
  • (hours)
  • D2 Designated waters
  • (hours)
  • D2 Undesignated waters
  • (hours)
  • D3 Designated waters
  • (hours)
  • D3 Undesignated waters
  • (hours)
  • 2010 4,839 5,649 5,235 5,565 2,461 20,211 2011 5,045 5,377 3,680 3,708 1,678 16,012 2012 4,771 5,121 3,922 3,848 2,163 15,906 2013 5,864 5,529 4,750 4,603 2,361 17,115 Average 5,130 5,419 4,397 4,431 2,166 17,311

    Table 20 calculates new rates by dividing each association's projected needed revenue, from § 404.106, by the average hours shown in Table 19 and rounding to the nearest whole number.

    Table 20—Rate Calculations District 1 Designated Undesignated District 2 Undesignated Designated District 3 Undesignated Designated Revenue Needed (Step 66) $3,025,852 $2,484,546 $2,248,887 $3,210,457 $5,120,638 $2,466,965 Average time on task 2010-2013 5,130 5,419 4,431 4,397 17,311 2,166 Hourly Rate $590 $458 $508 $730 $296 $1,139

    Table 20 shows that the District 3 rate for designated waters would be more than twice the rate for undesignated waters. Therefore, as discussed earlier under this proposed section, we apply a ratio to adjust the balance between these rates so that the rate for designated waters is no more than twice the rate for undesignated waters, as shown in Table 21, rounded to the nearest whole number.

    Table 21—District 3—Capped Designated Waters Rate District 3 Areas 6, 8
  • undesignated
  • Area 7
  • designated
  • Revenue Needed $6,068,890 $1,518,713 Projected Pilotage Demand 17,311 2,166 Hourly Rate $351 $701

    Review and finalize rates (proposed § 404.108). As we noted in our discussion of Table 9 under proposed § 404.103, we are working with the pilotage associations to close a significant gap between the number of pilots needed and the working pilots we expect to be working full-time and fully compensated in 2016. Closing the gap entails training new applicant pilots, at considerable expense to the associations. Ongoing training for current pilots is also an important element of providing safe, efficient, and reliable pilotage service. Ordinarily, current training expenses would not be recognized for several years, which would reduce funds available for other immediate association expenses. We find that the importance of training, both to help achieve a full complement of needed pilots and to ensure skill maintenance and development for current pilots, is a supportable circumstance for imposing a necessary and reasonable temporary surcharge for 2016, as authorized by 46 CFR 401.401, allowing each association to recoup necessary and reasonable training expenses incurred. We anticipate that there will be 2 applicant pilots in each district for 2016, as we continue advancing towards our pilot strength goals. Based on historic pilot costs, the stipend, per diem, and training costs for each applicant pilot are approximately $150,000. Thus, we estimate that the training expenses that each association will incur will be approximately $300,000. Table 22 derives the proposed percentage surcharge for each district by comparing this estimate to each district's projected needed revenue.

    Table 22—Surcharge Calculation by District District 1 District 2 District 3 Projected Needed Revenue (§ 404.106) $5,510,398 $5,459,344 $7,587,603 Anticipated Training Expenses $300,000 $300,000 $300,000 Surcharge Needed * 6% 6% 4% * All surcharge calculations are rounded up to the nearest whole percentage. At the conclusion of the 2016 shipping season, we would account for actual surcharge revenue and make adjustments as necessary to the operating expenses for the following year. VII. Regulatory Analyses

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

    A. Regulatory Planning and Review

    Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

    This proposed rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this proposed rule has not been reviewed by the Office of Management and Budget (OMB). We consider all estimates and analysis in this Regulatory Analysis to be subject to change in consideration of public comments.

    The following table summarizes the affected population, costs, and benefits of the proposed rule.

    Table 23—Summary of Regulatory Economic Impacts Proposed changes Description Affected population Costs Benefits Rate Changes Under the Great Lakes Pilotage Act of 1960, Coast Guard is required to review and adjust base pilotage rates annually 126 vessels journeying the Great Lakes system annually $7,168,152 —New rates cover an association's necessary and reasonable operating expenses.
  • —Provides fair compensation, adequate training, and sufficient rest periods for pilots.
  • —Ensures the association makes enough money to fund future improvements.
  • Procedural Changes Proposed changes to the annual ratemaking methodology 3 pilot associations No additional cost —Provide maximum transparency and simplicity in the ratemaking methodology.
  • —Make submitting data easier for pilots and more accurate.
  • The Coast Guard is required to review and adjust pilotage rates on the Great Lakes annually. See Parts III and IV of this preamble for detailed discussions of the Coast Guard's legal basis and purpose for this rulemaking and for background information on Great Lakes pilotage ratemaking. Based on our annual review for this proposed rulemaking, we are adjusting the pilotage rates for the 2016 shipping season to generate for each district sufficient revenues to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide an appropriate profit to use for improvements. The rate changes in this proposed rule would, if codified, lead to an increase in the cost per unit of service to shippers in all three districts, and result in an estimated annual cost increase to shippers of approximately $6,268,152 across all three districts over 2015 payments (Table 24).

    In addition to the increase in payments that would be incurred by shippers in all three districts from the previous year as a result of the proposed rate changes, we propose authorizing a temporary surcharge to allow the pilotage associations to recover training expenses that would be incurred in 2016. We estimate that each district will incur $300,000 in training expenses. These temporary surcharges would generate a combined $900,000 in revenue for the pilotage associations across all three districts.

    Therefore, after accounting for the implementation of the temporary surcharges across all three districts, the annual payments made by shippers during the 2016 shipping season are estimated to be approximately $7,168,152 more than the payments that were made in 2015 (Table 24).53

    53 Total payments across all three districts are equal to the increase in payments incurred by shippers as a result of the rate changes plus the temporary surcharges applied to traffic in Districts One, Two, and Three.

    A draft regulatory assessment follows.

    This proposed rulemaking proposes revisions to the annual ratemaking methodology (procedural changes), and applies the proposed ratemaking methodology to increase Great Lakes pilotage rates and surcharges from the current rates set in the 2015 final rule (rate changes). The proposed methodology is discussed and applied in detail in Parts V and VI of this preamble. The last full ratemaking was concluded in 2015. The last annual rate review, conducted under 46 CFR part 404, appendix C, was completed early in 2011.

    The shippers affected by these rate changes are those owners and operators of domestic vessels operating on register (employed in foreign trade) and owners and operators of foreign vessels on routes within the Great Lakes system. These owners and operators must have pilots or pilotage service as required by 46 U.S.C. 9302. There is no minimum tonnage limit or exemption for these vessels. The statute applies only to commercial vessels and not to recreational vessels.

    We used 2012-2014 vessel arrival data from the Coast Guard's Ship Arrival Notification System (SANS) to estimate the average annual number of vessels affected by the rate adjustment. Using that period, we found that a mean of 126 vessels journeyed into the Great Lakes system annually from the years 2012-2014. These vessels entered the Great Lakes by transiting at least one of the three pilotage districts before leaving the Great Lakes system. These vessels often make more than one distinct stop, docking, loading, and unloading at facilities in Great Lakes ports. Of the total trips for the 126 vessels, there were 396 annual U.S. port arrivals before the vessels left the Great Lakes system, based on 2012-2014 vessel data from SANS.

    The procedural changes are the proposed revisions to the annual ratemaking methodology and several Great Lakes pilotage regulations. These procedural changes are intended to clarify and simplify the current methodology, and increase the accuracy of collecting information on each pilot association's expenses and revenues in order to lower the variance between projected revenue and actual revenue. However, the rate changes resulting from the new methodology would generate costs on industry in the form of higher payments for shippers. The effect of the rate changes on shippers is estimated from the District pilotage revenues. These revenues represent the costs that shippers must pay for pilotage services. The Coast Guard sets rates so that revenues equal the estimated cost of pilotage for these services.

    We estimate the effect of the rate changes by comparing the total projected revenues needed to cover costs in 2015 with the figures for 2016, plus the temporary surcharges authorized by the Coast Guard. The last full year for which we have reported and audited financial information for the pilot association expenses is 2013, as discussed in Section VI of this preamble. We projected 2015 revenues using the rate increases set in the 2014 and 2015 final rules. The 2014 final rule 54 increased rates by 2.5 percent and the 2015 final rule 55 increased rates by 10 percent. Table 24 shows the 2015 revenue projections.

    54 See 79 FR 12084, Great Lakes Pilotage Rates-2014 Annual Review and Adjustment (https://www.federalregister.gov/articles/2014/03/04/2014-04591/great-lakes-pilotage-rates-2014-annual-review-and-adjustment).

    55 See 80 FR 10365, Great Lakes Pilotage Rates-2015 Annual Review and Adjustment (https://www.federalregister.gov/articles/2015/02/26/2015-04036/great-lakes-pilotage-rates-2015-annual-review-and-adjustment).

    Table 24—Revenue Adjustment Area 2013 Revenue
  • (audited)
  • 2014 Revenue
  • adjustment
  • (2.5%)
  • 2015 Revenue
  • adjustment
  • (10%)
  • Total 2015
  • projected
  • revenue
  • D1 Designated $1,990,865 $49,772 $204,064 $2,244,700 D1 Undesignated 1,415,299 35,382 145,068 1,595,750 Total, District 1 3,406,164 85,154 349,132 3,840,450 D2 Undesignated 1,267,750 31,694 129,944 1,429,388 D2 Designated 1,901,627 47,541 194,917 2,144,085 Total, District 2 3,169,377 79,234 324,861 3,573,473 D3 Undesignated 3,242,971 81,074 332,405 3,656,450 D3 Designated 1,080,994 27,025 110,802 1,218,821 Total, District 3 4,323,965 108,099 443,206 4,875,271 System Total $10,899,506 $272,488 $1,117,199 $12,289,193

    Table 25 details the additional cost increases to shippers by area and district as a result of the rate changes and temporary surcharges on traffic in Districts One, Two, and Three.

    Table 25—Effect of the Proposed Rule by Area and District [$U.S.; non-discounted] Area Projected revenue needed in 2015 Projected revenue needed in 2016 Total costs 2015
  • (2016-2015)
  • Temporary
  • surcharge
  • Additional costs or savings of this proposed rule
    D1 Designated $2,244,700 $3,025,852 $781,152 D1 Undesignated 1,595,750 2,484,546 888,796 Total, District 1 3,840,450 5,510,398 1,669,948 300,000 1,969,948 D2 Undesignated 1,429,388 2,248,887 819,499 D2 Designated 2,144,085 3,210,457 1,066,372 Total, District 2 3,573,473 5,459,344 1,885,871 300,000 2,185,871 D3 Undesignated 3,656,450 5,120,638 1,464,188 D3 Designated 1,218,821 2,466,965 1,248,144 Total, District 3 4,875,271 7,587,603 2,712,332 300,000 3,012,332 System Total 12,289,193 18,557,345 6,268,152 900,000 7,168,152

    The resulting difference between the projected revenue in 2015 and the projected revenue in 2016 is the annual change in payments from shippers to pilots as a result of the rate change. This figure is equivalent to the total additional payments from the previous year that shippers would incur for pilotage services from this proposed rule.

    The effect of the rate change in this proposed rule on shippers varies by area and district. The rate changes would lead to affected shippers operating in District One, District Two, and District Three experiencing an increase in payments of $1,669,948, $1,885,871, and $2,712,332, respectively, from the previous year.

    In addition to the rate changes, temporary surcharges on traffic in District One, District Two, and District Three would be applied for the duration of the 2016 season in order for the pilotage associations to recover training expenses incurred. We estimate that these surcharges would generate an additional $300,000 in revenue for the pilotage associations in each district, for a total additional revenue of $900,000.

    To calculate an exact cost or savings per vessel is difficult because of the variation in vessel types, routes, port arrivals, commodity carriage, time of season, conditions during navigation, and preferences for the extent of pilotage services on designated and undesignated portions of the Great Lakes system. Some owners and operators would pay more and some would pay less, depending on the distance travelled and the number of port arrivals by their vessels. However, the increase in costs reported earlier in this NPRM does capture the adjustment in payments that shippers would experience from the previous year. The overall adjustment in payments, after taking into account the increase in pilotage rates and the addition of temporary surcharges would be an increase in payments by shippers of approximately $7,168,152 across all three districts.

    This proposed rule would allow the Coast Guard to meet the requirements in 46 U.S.C. 9303 to review the rates for pilotage services on the Great Lakes. The rate changes would promote safe, efficient, and reliable pilotage service on the Great Lakes by ensuring rates cover an association's operating expenses; provide fair pilot compensation, adequate training, and sufficient rest periods for pilots; and ensures the association makes enough money to fund future improvements. The procedural changes would increase the accuracy of pilotage data by utilizing a uniform financial reporting system (see discussion of 46 CFR 403.300 in Part V of the preamble). The procedural changes will also promote greater transparency and simplicity in the ratemaking methodology through annual revenue audits (see discussion of 46 CFR 404.1 in Part V of the preamble).

    B. Small Entities

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this proposed rule would have a significant economic effect on a substantial number of small entities. 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 people.

    We expect that entities affected by the proposed rule would be classified under the North American Industry Classification System (NAICS) code subsector 483—Water Transportation, which includes the following 6-digit NAICS codes for freight transportation: 483111—Deep Sea Freight Transportation, 483113—Coastal and Great Lakes Freight Transportation, and 483211—Inland Water Freight Transportation. According to the Small Business Administration's definition, a U.S. company with these NAICS codes and employing less than 500 employees is considered a small entity.

    For the proposed rule, we reviewed recent company size and ownership data for the period 2012 through 2014 in the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database, and we reviewed business revenue and size data provided by publicly available sources such as MANTA 56 and Cortera.57 We found that large, foreign-owned shipping conglomerates or their subsidiaries owned or operated all vessels engaged in foreign trade on the Great Lakes.

    56 See http://www.manta.com/.

    57 See https://www.cortera.com/.

    There are three U.S. entities affected by the proposed rule that receive revenue from pilotage services. These are the three pilot associations that provide and manage pilotage services within the Great Lakes districts. Two of the associations operate as partnerships and one operates as a corporation. These associations are designated with the same NAICS industry classification and small-entity size standards described above, but they have fewer than 500 employees; combined, they have approximately 65 total employees. We expect no adverse effect to these entities from this proposed rule because all associations receive enough revenue to balance the projected expenses associated with the projected number of bridge hours and pilots.

    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic effect on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic effect on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies, as well as how and to what degree this proposed rule would economically affect it.

    C. 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 proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Todd Haviland, Director, Great Lakes Pilotage, Commandant (CG-WWM-2), Coast Guard; telephone 202-372-2037, email [email protected], or fax 202-372-1914. 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.

    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).

    D. Collection of Information

    This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) but would adjust the burden for an existing COI number 1625-0086, as described below.

    Title: Great Lakes Pilotage.

    OMB Control Number: 1625-0086.

    Summary of the Collection of Information: The proposed rule would require continued submission of data to an electronic collection system, identified as the Great Lakes Pilotage Management System, which will eventually replace the manual paper submissions currently used to collect data on bridge hours, vessel delay, vessel detention, vessel cancellation, vessel movage, pilot travel, revenues, pilot availability, and related data. Further, this proposed rule will explicitly add the requirement for the pilot associations to provide copies of their paper source forms, or billing forms, until the transfer to electronic submission is available later in 2016. The pilot associations currently provide copies of their source forms, or billing forms, to the Great Lakes Pilotage Division on a monthly basis. These forms are generated by the pilot associations for their own billing purposes.

    Need for Information: This information is needed in order to more accurately set future rates.

    Proposed Use of Information: We would use this information to comply with the statutory and regulatory requirements regarding the ratemaking and oversight functions imposed upon the agency.

    Description of Respondents: The respondents are representatives of the three U.S. pilotage associations on the Great Lakes authorized by the Coast Guard to provide pilotage service, the 42 registered pilots we project for 2016, as well as on average the six individuals that must fill out Form CG-4509 each year to apply for certification as U.S. registered pilots.

    Number of Respondents: The estimated number of respondents increases with this proposed rule. We estimate the maximum number of respondents affected by this proposed rule to increase from 9 to 51 per year. This is the sum of three pilot association representatives, six applicant pilots applying for registration by filling out the CG-4509 and 42 projected registered pilots.

    Frequency of Response: Frequency dictated by marine traffic levels and association staffing.

    Burden of Response: We estimate the burden of response will vary by type of response, from 15 minutes for a pilot to complete the source form to one hour for the pilot association to transmit the source forms to the Coast Guard.

    Estimate of Annual Burden: We estimate the total annual burden will increase from 19 to 2129.5.

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we will submit a copy of this proposed rule to the Office of Management and Budget (OMB) for its review of the collection of information.

    We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.

    If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES, by the date under DATES.

    You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the Coast Guard could enforce the collection of information requirements in this proposed rule, OMB would need to approve the Coast Guard's request to collect this information.

    E. Federalism

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

    Congress directed the Coast Guard to establish “rates and charges for pilotage services.” 46 U.S.C. 9303(f). This regulation is issued pursuant to that statute and is preemptive of state law as specified in 46 U.S.C. 9306. Under 46 U.S.C. 9306, a “State or political subdivision of a State may not regulate or impose any requirement on pilotage on the Great Lakes.” As a result, States or local governments are expressly prohibited from regulating within this category. Therefore, the rule is consistent with the principles of federalism and preemption requirements in E.O. 13132.

    While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with implications and preemptive effect, E.O. 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this rule has implications for federalism under E.O. 13132, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

    F. Unfunded Mandates Reform Act

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

    G. Taking of Private Property

    This proposed rule would not cause a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

    H. Civil Justice Reform

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

    I. Protection of Children

    We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed 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.

    J. Indian Tribal Governments

    This proposed rule does not have tribal implications under E.O. 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.

    K. Energy Effects

    We have analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that E.O. because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

    L. Technical Standards

    The National Technology Transfer and Advancement Act (15 U.S.C. 272, note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

    M. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This proposed rule is categorically excluded under section 2.B.2, figure 2-1, paragraph 34(a) of the Instruction. Paragraph 34(a) pertains to minor regulatory changes that are editorial or procedural in nature. This proposed rule adjusts rates in accordance with applicable statutory and regulatory mandates. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    List of Subjects 46 CFR part 401

    Administrative practice and procedure, Great Lakes, Navigation (water), Penalties, Reporting and recordkeeping requirements, Seamen.

    46 CFR Part 403

    Great Lakes, Navigation (water), Reporting and recordkeeping requirements, Seamen, Uniform System of Accounts.

    46 CFR Part 404

    Great Lakes, Navigation (water), Seamen.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR parts 401, 403, and 404 as follows:

    Title 46—Shipping PART 401—GREAT LAKES PILOTAGE REGULATIONS 1. The authority citation for part 401 is revised to read as follows: Authority:

    46 U.S.C. 2103, 6101, 7701, 9303, 9304; Department of Homeland Security Delegation No. 0170.1(II)(92.a), (92.d), (92.e), (92.f).

    2. Revise § 401.405 to read as follows:
    § 401.405 Pilotage rates and charges.

    (a) The hourly rate for pilotage service on:

    (1) The St. Lawrence River is $590;

    (2) Lake Ontario is $458;

    (3) Lake Erie is $508;

    (4) The navigable waters from Southeast Shoal to Port Huron, MI is $730;

    (5) Lakes Huron, Michigan, and Superior is $351; and

    (6) The St. Mary's River is $701.

    (b) The pilotage charge is calculated by multiplying the hourly rate by the hours or fraction thereof (rounded to the nearest 15 minutes) that the registered pilot is on the bridge or available to the master of the vessel, multiplied by the weighting factor shown in § 401.400.

    § 401.407 [Removed]
    3. Remove § 401.407.
    § 401.410 [Removed]
    4. Remove § 401.410. 5. Revise § 401.420 to read as follows:
    § 401.420 Cancellation, delay, or interruption in rendition of services.

    (a) Except as otherwise provided in this section, a vessel can be charged as authorized in § 401.405 for the waters in which the event takes place, if:

    (1) A U.S. pilot is retained on board while a vessel's passage is interrupted;

    (2) A U.S. pilot's departure from the vessel after the end of an assignment is delayed, and the pilot is detained on board, for the vessel's convenience; or

    (3) A vessel's departure or movage is delayed, for the vessel's convenience, beyond the time that a U.S. pilot is scheduled to report for duty, or reports for duty as ordered, whichever is later.

    (b) When an order for a U.S. pilot's service is cancelled after that pilot has begun traveling to the designated pickup place, the vessel can be charged for the pilot's reasonable travel expenses to and from the pilot's base; and the vessel can be charged for the time between the pilot's scheduled arrival, or the pilot's reporting for duty as ordered, whichever is later, and the time of cancellation.

    (c) Between May 1 and November 30, a vessel is not liable for charges under paragraph (a)(1) or (2) of this section, if the interruption or detention was caused by ice, weather, or traffic.

    (d) A pilotage charge made under this section takes the place and precludes payment of any charge that otherwise could be made under § 401.405.

    6. Revise § 401.428 to read as follows:
    § 401.428 Boarding or discharging a pilot other than at designated points.

    For a situation in which a vessel boards or discharges a U.S. pilot at a point not designated in § 401.450, it could incur additional charges as follows:

    (a) Charges for the pilot's reasonable travel expenses to or from the pilot's base, if the situation occurs for reasons outside of the vessel's control, for example for a reason listed in § 401.420(c); or

    (b) Charges for associated hourly charges under § 401.405, as well as the pilot's travel expenses as described in paragraph (a) of this section, if the situation takes place for the convenience of the vessel.

    7. In § 401.450, redesignate paragraphs (b) through (j) as (c) through (k), and add paragraph (b) to read as follows:
    § 401.450 Pilot change points.

    (b) Iroquois Lock;

    PART 403—GREAT LAKES PILOTAGE UNIFORM ACCOUNTING SYSTEM 8. The authority citation for part 403 is revised to read as follows: Authority:

    46 U.S.C. 2103, 2104(a), 9303, 9304; Department of Homeland Security Delegation No. 0170.1(II)(92.a), (92.d), (92.e), (92.f).

    § 403.120 [Removed]
    9. Remove § 403.120. 10. Revise § 403.300 to read as follows:
    § 403.300 Financial reporting requirements.

    (a) Each association must maintain records for dispatching, billing, and invoicing, and make them available for Director inspection, using the system currently approved by the Director.

    (b) Each association must submit the compiled financial data and any other required statistical data, and written certification of the data's accuracy signed by an officer of the association, to the Director within 30 days of the end of the annual reporting period, unless otherwise authorized by the Director.

    (c) By April 1 of each year, each association must obtain an unqualified audit report for the preceding year, audited and prepared in accordance with generally accepted accounting standards by an independent certified public accountant, and electronically submit that report with any associated settlement statements to the Director by April 7.

    11. Revise § 403.400 to read as follows:
    § 403.400 Uniform pilot's source form.

    (a) Each association must record pilotage transactions using the system currently approved by the Director.

    (b) Each pilot must complete a source form in detail as soon as possible after completion of an assignment, with adequate support for reimbursable travel expenses.

    (c) Upon receipt, each association must complete the source form by inserting the rates and charges specified in 46 CFR part 401.

    12. Revise part 404 to read as follows: PART 404—GREAT LAKES PILOTAGE RATEMAKING Sec. 404.1 General ratemaking provisions. 404.2 Procedure and criteria for recognizing association expenses. 404.3 through 404.99 [Reserved] 404.100 Ratemaking and annual reviews in general. 404.101 Ratemaking step 1: Recognize previous operating expenses. 404.102 Ratemaking step 2: Project operating expenses, adjusting for inflation or deflation. 404.103 Ratemaking step 3: Determine number of pilots needed. 404.104 Ratemaking step 4: Determine target pilot compensation. 404.105 Ratemaking step 5: Project return on investment. 404.106 Ratemaking step 6: Project needed revenue. 404.107 Ratemaking step 7: Initially calculate base rates. 404.108 Ratemaking step 8: Review and finalize rates. Authority:

    46 U.S.C. 2103, 2104(a), 9303, 9304; Department of Homeland Security Delegation No. 0170.1(II)(92.a), (92.d), (92.e), (92.f).

    § 404.1 General ratemaking provisions.

    (a) The goal of ratemaking is to promote safe, efficient, and reliable pilotage service on the Great Lakes, by generating for each pilotage association sufficient revenue to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide an appropriate profit to use for improvements.

    (b) Annual reviews of pilotage association expenses and revenue will be conducted in conjunction with an independent party, and data from completed reviews will be used in ratemaking under this part.

    (c) Full ratemakings to establish multi-year base rates and interim year reviews and adjustments will be conducted in accordance with § 404.100.

    § 404.2 Procedure and criteria for recognizing association expenses.

    (a) A pilotage association must report each expense item for which it seeks reimbursement through the charging of pilotage rates, and make supporting information available to the Director. The Director must recognize the item as both necessary for providing pilotage service, and reasonable as to its amount when compared to similar expenses paid by others in the maritime or other comparable industry, or when compared with Internal Revenue Service guidelines. The association will be given an opportunity to contest any preliminary determination that a reported item should not be recognized.

    (b) The Director applies the following criteria to recognize an expense item as necessary and reasonable within the meaning of paragraph (a) of this section:

    (1) Operating or capital lease costs. Conformity to market rates, or in the absence of a comparable market, conformity to depreciation plus an allowance for return on investment, computed as if the asset had been purchased with equity capital.

    (2) Return-on-investment. A market equivalent return-on-investment is allowed for the net capital invested in the association by its members, if that investment is necessary for providing pilotage service.

    (3) Transactions not directly related to providing pilotage services. Revenues and expenses generated from these transactions are included in ratemaking calculations as long as the revenues exceed the expenses. If these transactions adversely affect providing pilotage services, the Director may make rate adjustments or take other steps to ensure pilotage service is provided.

    (4) Pilot benefits. Association-paid benefits, including medical and pension benefits and profit sharing, are treated as pilot compensation.

    (5) Profit sharing for non-pilot association employees. These association expenses are recognizable.

    (6) Legal expenses. These association expenses are recognizable except for any and all expenses associated with legal action against the U.S. government or its agents.

    (c) The Director does not recognize the following expense items as necessary and reasonable within the meaning of paragraph (a) of this section:

    (1) Unreported or undocumented expenses, and expenses that are not reasonable in their amounts or not reasonably related to providing safe, efficient, and reliable pilotage service;

    (2) Revenues and expenses from Canadian pilots that are commingled with revenues and expenses from U.S. pilots;

    (3) Lobbying expenses; or

    (4) Expenses for personal matters.

    §§ 404.3 through 404.99 [Reserved]
    § 404.100 Ratemaking and annual reviews in general.

    (a) The Director establishes base pilotage rates by a full ratemaking pursuant to §§ 404.101 through 404.108, conducted at least once every 5 years and completed by March 1 of the first year for which the base rates will be in effect. Base rates will be set to meet the goal specified in § 404.1(a).

    (b) In the interim years preceding the next scheduled full rate review, the Director will review the existing rates to ensure that they continue to meet the goal specified in § 404.1(a). If interim-year adjustments are needed, they will be set according to one of the following procedures, selected as the Director deems best suited to adjust the rates to meet that goal:

    (1) Automatic annual adjustments, set during the previous full rate review in anticipation of economic trends over the term of the rates set by that review;

    (2) Annual adjustments reflecting consumer price changes as documented in the U.S. Bureau of Labor Statistics Midwest Region Consumer Price Index (CPI-U); or

    (3) A new full ratemaking.

    § 404.101 Ratemaking step 1: Recognize previous operating expenses.

    The Director uses an independent third party to review each pilotage association's expenses, as reported and audited for the last full year for which figures are available, and determines which expense items to recognize for base ratemaking purposes in accordance with § 404.2.

    § 404.102 Ratemaking step 2: Project operating expenses, adjusting for inflation or deflation.

    The Director projects the base year's non-compensation operating expenses for each pilotage association, using recognized operating expense items from § 404.101. Recognized operating expense items subject to inflation or deflation factors are adjusted for those factors based on the subsequent year's U.S. government consumer price index data for the Midwest, projected through the year in which the new base rates take effect.

    § 404.103 Ratemaking step 3: Determine number of pilots needed.

    (a) The Director determines the base number of pilots needed by dividing each area's peak pilotage demand data by its pilot work cycle. The pilot work cycle standard includes any time that the Director finds to be a necessary and reasonable component of ensuring that a pilotage assignment is carried out safely, efficiently, and reliably for each area. These components may include but are not limited to:

    (1) Amount of time a pilot provides pilotage service or is available to a vessel's master to provide pilotage service;

    (2) Pilot travel time, measured from the pilot's base, to and from an assignment's starting and ending points;

    (3) Assignment delays and detentions;

    (4) Administrative time for a pilot who serves as a pilotage association's president;

    (5) Rest between assignments, as required by 46 CFR 401.451;

    (6) Ten days' recuperative rest per month from April 15 through November 15 each year, provided that lesser rest allowances are approved by the Director at the pilotage association's request, if necessary to provide pilotage without interruption through that period; and

    (7) Pilotage-related training.

    (b) Peak pilotage demand and the base seasonal work standard are based on averaged available and reliable data, as so deemed by the Director, for a multi-year base period. Normally, the multi-year period is the five most recent full shipping seasons, and the data source is a system approved under 46 CFR 403.300. Where such data are not available or reliable, the Director also may use data, from additional past full shipping seasons or other sources, that the Director determines to be available and reliable.

    (c) The number of pilots needed in each district is calculated by totaling the area results by district and rounding them to the nearest whole integer. For supportable circumstances, the Director may make reasonable and necessary adjustments to the rounded result to provide for changes that the Director anticipates will affect the need for pilots in the district over the period for which base rates are being established.

    (d) The Director projects, based on the number of persons applying under 46 CFR part 401 to become U.S. Great Lakes registered pilots, and on information provided by the district's pilotage association, the number of pilots expected to be fully working and compensated during the first year of the period for which base rates are being established.

    § 404.104 Ratemaking step 4: Determine target pilot compensation.

    The Director determines base individual target pilot compensation using a compensation benchmark, set after considering the most relevant currently available non-proprietary information. For supportable circumstances, the Director may make necessary and reasonable adjustments to the benchmark. The Director determines each pilotage association's total target pilot compensation by multiplying individual target pilot compensation by the number of pilots projected under § 404.103(d).

    § 404.105 Ratemaking step 5: Project return on investment.

    The Director calculates each pilotage association's allowed base return on investment by adding the projected adjusted operating expenses from § 404.102 and the total target pilot compensation from § 404.104, multiplied by the preceding year's average annual rate of return for new issues of high grade corporate securities.

    § 404.106 Ratemaking step 6: Project needed revenue.

    The Director calculates each pilotage association's base projected needed revenue by adding the projected adjusted operating expenses from § 404.102, the total target pilot compensation from § 404.104, and the projected return on investment from § 404.105.

    § 404.107 Ratemaking step 7: Initially calculate base rates.

    (a) The Director initially calculates base hourly rates by dividing the projected needed revenue from § 404.106 by averages of past hours worked in each district's designated and undesignated waters, using available and reliable data for a multi-year period set in accordance with § 404.103(b).

    (b) If the result of this calculation initially shows an hourly rate for the designated waters of a district that would exceed twice the hourly rate for undesignated waters, the initial designated-waters rate will be adjusted so as not to exceed twice the hourly undesignated-waters rate. The adjustment is a reallocation only and will not increase or decrease the amount of revenue needed in the affected district.

    § 404.108 Ratemaking step 8: Review and finalize rates.

    The Director reviews the base pilotage rates initially set in § 404.107 to ensure they meet the goal set in § 404.1(a), and either finalizes them or first makes necessary and reasonable adjustments to them based on requirements of Great Lakes pilotage agreements between the United States and Canada, or other supportable circumstances. Adjustments will be made consistently with § 404.107(b).

    Gary C. Rasicot, Director, Marine Transportation Systems, U.S. Coast Guard.
    [FR Doc. 2015-22895 Filed 9-8-15; 4:15 pm] BILLING CODE 9110-04-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 150708591-5591-01] RIN 0648-XE043 Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications AGENCY:

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

    ACTION:

    Proposed rule.

    SUMMARY:

    NMFS proposes to implement annual management measures and harvest specifications to establish the allowable catch levels (i.e. annual catch limit (ACL)/harvest guideline (HG)) for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the Pacific coast for the fishing season of July 1, 2015, through June 30, 2016. This rule is proposed pursuant to the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed 2015-2016 HG for Pacific mackerel is 21,469 metric tons (mt). This is the total commercial fishing target level. This action also proposes an annual catch target (ACT), of 20,469 mt. If the fishery attains the ACT, the directed fishery will close, reserving the difference between the HG (21,469 mt) and ACT as a 1,000 mt set-aside for incidental landings in other CPS fisheries and other sources of mortality. This proposed rule is intended to conserve and manage the Pacific mackerel stock off the U.S. West Coast.

    DATES:

    Comments must be received by October 13, 2015.

    ADDRESSES:

    You may submit comments on this document identified by NOAA-NMFS-2015-0096, by any of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0096, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Joshua Lindsay.

    Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

    Copies of the report “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2015-16 and 2016-2017 Fishing Years” may be obtained from the West Coast Regional Office (see ADDRESSES).

    FOR FURTHER INFORMATION CONTACT:

    Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.

    SUPPLEMENTARY INFORMATION:

    During public meetings each year, the estimated biomass for Pacific mackerel is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fishery are reviewed and discussed. The biomass estimate is then presented to the Council along with the recommended overfishing limit (OFL) and acceptable biological catch (ABC) calculations from the SSC, along with the calculated ACL, HG and ACT recommendations, and comments from the Team and Subpanel. Following review by the Council and after reviewing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS. NMFS manages the Pacific mackerel fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the FMP. Annual specifications published in the Federal Register establish the allowable harvest levels (i.e. OFL/ACL/HG) for each Pacific mackerel fishing year. The purpose of this proposed rule is to implement the 2015-2016 ACL, HG, ACT and other annual catch reference points, including OFL and an ABC that takes into consideration uncertainty surrounding the current estimate of biomass for Pacific mackerel in the U.S. EEZ off the Pacific coast.

    The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific mackerel fishery based on the annual specification framework and control rules in the FMP. These control rules include the HG control rule, which in conjunction with the OFL and ABC rules in the FMP, are used to manage harvest levels for Pacific mackerel, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. According to the FMP, the quota for the principal commercial fishery is determined using the FMP-specified HG formula. The HG is based, in large part, on the current estimate of stock biomass. The annual biomass estimates are an explicit part of the various harvest control rules for Pacific mackerel, and as the estimated biomass decreases or increases from one year to the next, the resulting allowable catch levels similarly trend. The harvest control rule in the CPS FMP is HG = [(Biomass-Cutoff) * Fraction * Distribution] with the parameters described as follows:

    1. Biomass. The estimated stock biomass of Pacific mackerel. For the 2015-2016 management season this is 120,435 mt.

    2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 18,200 mt.

    3. Fraction. The harvest fraction is the percentage of the biomass above 18,200 mt that may be harvested.

    4. Distribution. The average portion of the Pacific mackerel biomass estimated in the U.S. EEZ off the Pacific coast is 70 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.

    At the June 2015 Council meeting, the Council adopted the “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2015-16 and 2016-2017 Fishing Years” completed by NMFS Southwest Fisheries Science Center and the resulting Pacific mackerel biomass estimate for use in the 2015-2016 fishing year of 120,435 mt. Based on recommendations from its SSC and other advisory bodies, the Council recommended and NMFS is proposing, an OFL of 25,291 mt, an ABC and ACL of 23,104 mt, a HG of 21,469 mt, and an ACT of 20,469 mt for the fishing year of July 1, 2015, to June 30, 2016. Additionally, the Council also adopted and recommended harvest specifications for the 2016-2017 fishing year; however, currently NMFS is only proposing to implement the annual harvest measures for the 2015-2016 fishing year. A subsequent rule will be published later in the year that will propose the Council's recommendations for the 2016-2017 fishing year.

    Under this proposed action, upon attainment of the ACT, the directed fishing would close, reserving the difference between the HG and ACT (1,000 mt) as a set aside for incidental landings in other CPS fisheries and other sources of mortality. For the remainder of the fishing year incidental landings would also be constrained to a 45-percent incidental catch allowance when Pacific mackerel are landed with other CPS (in other words, no more than 45 percent by weight of the CPS landed per trip may be Pacific mackerel), except that up to 3 mt of Pacific mackerel could be landed incidentally without landing any other CPS. Upon attainment of the HG (21,469 mt), no retention of Pacific mackerel would be allowed in CPS fisheries. In previous years, the incidental set-aside established in the mackerel fishery has been, in part, to ensure that if the directed quota for mackerel was reached that the operation of the Pacific sardine fishery was not overly restricted. There is no directed Pacific sardine fishery for the 2015-2016 season, therefore the need for a high incidental set-aside is reduced. The purpose of the incidental set-aside and the allowance of an incidental fishery is to allow for restricted incidental landings of Pacific mackerel in other fisheries, particularly other CPS fisheries, when the directed fishery is closed to reduce potential discard of Pacific mackerel and allow for continued prosecution of other important CPS fisheries.

    The NMFS West Coast Regional Administrator would publish a notice in the Federal Register announcing the date of any closure to either directed or incidental fishing. Additionally, to ensure the regulated community is informed of any closure NMFS would also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.

    Detailed information on the fishery and the stock assessment are found in the reports “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2015-16 Fishing Year” and “Pacific Mackerel Biomass Projection Estimate for USA Management (2015-16)” (see ADDRESSES).

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the Assistant Administrator, NMFS, has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

    These proposed specifications are exempt from review under Executive Order 12866 because they contain no implementing regulations.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:

    On June 12, 2014, the Small Business Administration (SBA) issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33467). The rule increased the size standard for Finfish Fishing from $19.0 to 20.5 million, Shellfish Fishing from $ 5.0 to 5.5 million, and Other Marine Fishing from $7.0 to 7.5 million. 78 FR 33656, 33660, 33666 (See Table 1). NMFS conducted its analysis for this action in light of the new size standards.

    As stated above, the SBA now defines small businesses engaged in finfish fishing as those vessels with annual revenues of or below $20.5 million. Under the former, lower size standards, all entities subject to this action in previous years were considered small entities, and under the new standards, as described below, they all would continue to be considered small.

    The small entities that would be affected by the proposed action are those vessels that harvest Pacific mackerel as part of the West Coast CPS purse seine fleet. The CPS FMP and its implementing regulations requires NMFS to set an OFL, ABC, ACL, HG and ACT for the Pacific mackerel fishery based on the harvest control rules in the FMP. These specific harvest control rules are applied to the current stock biomass estimate to derive these catch specifications, which are used to manage the commercial take of Pacific mackerel. A component of these control rules is that as the estimated biomass decreases or increases from one year to the next, so do the applicable quotas. For the 2015-2016 Pacific mackerel fishing season NMFS is proposing an OFL of 25,291 metric tons (mt), an ABC and ACL of 23,104 mt, an HG of 21,469 mt and an ACT, which is the directed fishing harvest target, of 20,469 mt. These catch specifications are based on a biomass estimate of 120,435 mt.

    Pacific mackerel harvest is one component of CPS fisheries off the U.S. West Coast, which primarily includes the fisheries for Pacific sardine, northern anchovy and market squid. Pacific mackerel are principally caught off southern California within the limited entry portion (south of 39 degrees N. latitude; Point Arena, California) of the fishery. Currently there are 58 vessels permitted in the Federal CPS limited entry fishery off California of which about 25 to 39 vessels have been annually engaged in harvesting Pacific mackerel in recent years (2009-2013). For those vessels that caught Pacific mackerel during that time, the average annual per vessel revenue has been about $1.25 million. The individual vessel revenue for these vessels is well below the SBA's threshold level of $20.5 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal or similar effect on all of these small entities, and therefore will impact a substantial number of these small entities in the same manner.

    NMFS used the ex-vessel revenue information for a profitability analysis, as the cost data for the harvesting operations of CPS finfish vessels was limited or unavailable. For the 2014-2015 fishing year, the maximum fishing level was 29,170 mt and was divided into a directed fishing harvest target (ACT) of 24,170 mt and an incidental set-aside of 5,000 mt. Approximately 3,611 mt was harvested in 2014-2015 fishing season with an estimated ex-vessel value of approximately $940,000. The maximum fishing level for the 2015-2016 Pacific mackerel fishing season is 21,469 mt, with an ACT of 20,469 mt and an incidental set-aside of 1,000 mt. If the fleet were to take the entire 2015-2016 ACT, the potential revenue to the fleet would be approximately $4.7 million (based on average ex-vessel price of $230 per mt during 2013-2014 and 2014-2015), which is the same as what the estimated potential revenue was last year for the 2014-2015 season (which was based on average ex-vessel price of $193 per mt during 2012-2013 and 2013-2014). However, this result will depend greatly on market forces within the fishery, and on the regional availability of the resource to the fleet and the fleets' ability to find schools of Pacific mackerel. The annual average U.S. Pacific mackerel harvest over the last decade (2001-2013) and in recent years (2009-2013) has been about 4,900 mt and 4,500 mt, respectively. In those periods, the landings have not exceeded 11,500 mt. The annual average landings during 2001-2013 and 2009-2013 were only about 20% and 15% of the annual average HGs, respectively. As a result, although this year's ACT represents a decrease compared to the previous fishing season, it is highly unlikely that the ACT proposed in this rule will limit the potential profitability to the fleet from catching Pacific mackerel. Accordingly, vessel income from fishing is not expected to be altered as a result of this rule as it compares to recent catches in the fishery, and specifically the fishery under the previous season's regulations.

    Additionally, revenue derived from harvesting Pacific mackerel is typically only one factor determining the overall revenue for a majority of the vessels that harvest Pacific mackerel; as a result, the economic impact to the fleet from the proposed action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, sardine, and in particular market squid, making Pacific mackerel only one component of a multi-species CPS fishery. For example, in recent years the annual total fleet revenue from Pacific mackerel alone has ranged from about $200,000 to $1.5 million with average fleet revenue of about $800,000 (or $23,422 per vessel). Thus, the revenue from Pacific mackerel in the CPS fleet is a very small fraction of the revenue whether from CPS species or all fish species. The revenue from Pacific mackerel constitutes about 1.98% and 1.95% of the total revenue from CPS species and all fish species, respectively. However, as a result of the closing of the directed Pacific sardine fishery for the 2015-2016 fishing year, there is the potential for more effort to be shifted to Pacific mackerel resulting in increased landings and therefore increased revenue from mackerel.

    These vessels typically rely on multiple species for profitability because abundance of mackerel, like the other CPS stocks, is highly associated with ocean conditions and different times of the year, and therefore are harvested at various times and areas throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore, as abundance levels and markets fluctuate, it has necessitated that the CPS fishery as a whole rely on a group of species for its annual revenues.

    Pursuant to the Regulatory Flexibility Act and the SBA's June 20, 2013 and June 14, 2014 final rules (78 FR 37398 and 79 FR 33647, respectively), this certification was developed for this action using the SBA's revised size standards. NMFS considers all entities subject to this action to be small entities as defined by both the former, lower size standards and the revised size standards. Because each affected vessel is a small business, this proposed action is considered to equally affect all of these small entities in the same manner.

    Based on the disproportionality and profitability analysis above, the proposed action, if adopted, will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.

    This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 2, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-22781 Filed 9-9-15; 8:45 am] BILLING CODE 3510-22-P
    80 175 Thursday, September 10, 2015 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Special Session, “Building Human Capital: Nutrition Is Fundamental”

    Pursuant to the Federal Advisory Committee Act, notice is hereby given of a special session hosted by the Board for International Food and Agricultural Development (BIFAD). This public session will be held from 9:00 a.m. to 11:00 a.m. on Wednesday, October 14, 2015 at the Des Moines Marriot Downtown Hotel, 700 Grand Avenue, Des Moines, Iowa. The title of the session is Building Human Capital: Nutrition Is Fundamental. This session focuses on the economic impact of malnutrition in the developing world. Through this discussion, BIFAD seeks to highlight this important issue and begin a dialogue with university partners, nutrition experts, and the broader stakeholder community.

    Dr. Brady Deaton, BIFAD Chair, will moderate the special session, which will begin promptly at 9:00 a.m. with opening remarks. The first speaker, Dr. Rob Bertram, USAID Bureau for Food Security's Chief Scientist, will provide an introduction to USAID's nutrition strategy under Feed the Future. The first hour of the session will consist of short presentations by a panel of nutrition experts from the university community. The panelists include Jessica Fanzo from the Bloomberg School of Public Health at Johns Hopkins University; John Hoddinott from the Charles H. Dyson School of Economics and Management at Cornell University; Grace Marquis from the School of Dietetics and Nutrition at McGill University, Canada; and Ana Lydia Sawaya from the Institute of Advanced Studies at the Federal University of Sao Paolo, Brazil. They will discuss emerging trends in the global pattern of malnutrition, including obesity and micronutrient deficiency, cognitive and physical impairments of children that arise from poor nutrition, and the economic and social impacts of malnutrition. The panel will conclude with examples of successful, evidence-based nutrition interventions.

    At 10:30 a.m., Chairman Deaton will open the floor for questions to the panelists, as well as general information sharing and dialogue among all participants. At 11:00 a.m. BIFAD Chair Brady Deaton will make closing remarks and adjourn the BIFAD-sponsored special session.

    Those wishing to attend the session or obtain additional information about BIFAD should contact Susan Owens, Executive Director and Designated Federal Officer for BIFAD in the Bureau for Food Security at USAID. Interested persons may write to her in care of the U.S. Agency for International Development, Ronald Reagan Building, Bureau for Food Security, 1300 Pennsylvania Avenue NW., Room 2.09-067, Washington, DC 20523-2110 or telephone her at (202) 712-0218.

    Susan Owens, Executive Director and USAID Designated Federal Officer for BIFAD, Bureau for Food Security, U.S. Agency for International Development.
    [FR Doc. 2015-22793 Filed 9-9-15; 8:45 am] BILLING CODE 6116-02-P
    AGENCY FOR INTERNATIONAL DEVELOPMENT Senior Executive Services Performance Review Board: Update AGENCY:

    Office of Inspector General, U.S. Agency for International Development.

    ACTION:

    Notice.

    SUMMARY:

    This notice is hereby given of the appointment of members of the updated U.S. Agency for International Development, Office of Inspector General's Senior Executive Service (SES) Performance Review Board.

    DATES:

    August 31, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Robert S. Ross, Assistant Inspector General for Management, Office of Inspector General, U.S. Agency for International Development, 1300 Pennsylvania Avenue NW., Room 8.08-029, Washington, DC 20523-8700; telephone 202-712-0010; FAX 202-216-3392; Internet Email address: [email protected] (for Email messages, the subject line should include the following reference—USAID OIG SES Performance Review Board).

    SUPPLEMENTARY INFORMATION:

    5 U.S.C. 4314(b)(c) requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management at 5 CFR part 430, subpart C and Section 430.307 thereof in particular, one or more SES Performance Review Boards. The board shall review and evaluate the initial appraisal of each USAID OIG senior executive's performance by his or her supervisor, along with any recommendations to the appointing authority relative to the performance of the senior executive. This notice updates the membership of the USAID OIG's SES Performance Review Board as it was last published on December 19, 2014.

    Approved: August 31, 2015.

    The following have been selected as regular members of the SES Performance Review Board of the U.S. Agency for International Development, Office of Inspector General:

    Lisa Risley, Assistant Inspector General for Investigations Robert S. Ross, Assistant Inspector General for Management Lisa S. Goldfluss, Legal Counsel Alvin A. Brown, Deputy Assistant Inspector General for Audit Melinda Dempsey, Deputy Assistant Inspector General for Audit Lisa McClennon, Deputy Assistant Inspector General for Investigations Tricia Hollis, Assistant Inspector General for Management, Department of Treasury Rodney DeSmet, Deputy Assistant Inspector General for Audit, Department of Agriculture Frank Rokosz, Deputy Assistant Inspector General for Audit, Department of Housing and Urban Development Larry Gregg, Associate Inspector General, General Services Administration Dated: August 28, 2015. Catherine M. Trujillo, Acting Deputy Inspector General.
    [FR Doc. 2015-22792 Filed 9-9-15; 8:45 am] BILLING CODE 6116-01-P
    U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT Senior Executive Service: Membership of Performance Review Board ACTION:

    Notice.

    SUMMARY:

    This notice lists approved candidates who will comprise a standing roster for service on the Agency's 2015 and 2016 SES Performance Review Boards. The Agency will use this roster to select SES board members, and an outside member for the convening SES Performance Review Board each year. The standing roster is as follows:

    Allen, Colleen Broderick, Deborah Chan, Carol Chapotin, Saharah Moon Detherage, Maria Feinstein, Barbara Foley, Jason Girod, Gayle Hunt, Juan Carlos Jenkins, Robert Kolmstetter, Elizabeth Kuyumjian, Kent Leavitt, William Mahanand, Vedjai Martin-Wallace, Valencia, U.S. Patent and Trade Office Miranda, Roberto Mitchell Reginald Pascocello, Susan Sampler, Donald Simpkins, John Steele, Gloria Sumilas, Michele Vera, Mauricio Walther, Mark Warren, Gordon Webb, Mark Whyche-Shaw, Oren
    FOR FURTHER INFORMATION CONTACT: Maryclare Whitehead, 202-216-3489. Dated: September 2, 2015. Karen Baquedano, Acting Director, Center for Performance Excellence.
    [FR Doc. 2015-22796 Filed 9-9-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comments Request—Evaluation of the Food Insecurity Nutrition Incentive (FINI) Grant Program AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the public and other public agencies to comment on this proposed information collection. This is a new collection for the purpose of measuring changes in fruit and vegetable purchases and consumption, food security, and perceived diet quality and health status among Supplemental Nutrition Assistance Program (SNAP) participants receiving incentives at the point of purchase.

    DATES:

    Written comments must be received on or before November 9, 2015.

    ADDRESSES:

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden on the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments may be sent to: Eric Sean Williams, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Eric Sean Williams at 703-305-2576 or via email to [email protected] Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov and follow the online instructions for submitting comments electronically.

    All written comments will be open for public inspection at the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 1014, Alexandria, Virginia 22302.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collected should be directed to Eric Sean Williams, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302.

    SUPPLEMENTARY INFORMATION:

    Title: Evaluation of the Food Insecurity Nutrition Incentive (FINI) Grant Program.

    OMB Number: 0584-NEW.

    Expiration Date of Approval: Not Yet Determined.

    Abstract: The Agriculture Act of 2014 (Pub. L. 113-79) authorized USDA to provide Food Insecurity Nutrition Incentive (FINI) grants to eligible organizations to design and implement projects to increase purchases of fruits and vegetables among low-income consumers participating in SNAP by providing incentives at the point of purchase. The objective of this information collection is to measure changes in fruit and vegetable purchases and consumption, food security, and perceived diet quality and health status among SNAP participants who receive incentives through FINI grant projects awarded in FY 2015 and FY 2016. The evaluation will use a quasi-experimental study design with clustered intervention sites and non-equivalent comparison groups. Baseline and follow-up data will be collected from (i) SNAP participants in the intervention (incentive) and the non-incentive comparison groups, (ii) Program Staff (key informant) interviews, and (iii) grantees. The data collection activities to be undertaken subject to this notice include:

    • Participant Survey: Two questions for the participant survey that have not been previously validated will be pretested with 9 SNAP participants. The pretest participants will not be included in the sample for the participant survey. SNAP participants in the intervention and comparison groups will be asked questions about their shopping patterns, knowledge and attitudes about fruits and vegetables, fruit and vegetable intakes, food security, household characteristics, and their experience with the incentive programs. Data collection procedures will be the same for the pre- and post-intervention surveys. At the onset of the voluntary study, a packet containing an advance invitation letter in English and Spanish, a $5 pre-survey incentive, pre-intervention survey, and postage paid return envelope will be mailed to participants. Both letters will include instructions to call a toll-free number; however, the Spanish letter will have an option for Spanish Speakers to complete their survey in Spanish. One week after the initial mailing, participants who have not returned the survey will receive an automated telephone call reminding them to complete and return the survey. Next, three weeks after the initial mailing, a FedEx package will be sent to non-responding participants, to underscore the importance of the study. The FedEx package will include a reminder letter with a toll-free number they can call to complete the survey by phone, a hard copy participant survey, and postage paid envelope. One week after the 2nd mailing, all non-responding participants will receive an automated telephone reminder call. About three weeks after the second mailing, telephone data collectors will attempt to contact sampled participants who have not returned the survey and try to complete the participant survey by phone. In the event that the trained interviewer is unable to speak with a person, interviewers will leave a message on voice mail along with a toll-free number for respondents to call and complete the survey at their convenience. A thank you letter with a $20 cash incentive will be mailed to participants completing the survey. Respondents who use their cellphone to complete the interview will receive an additional $10 (i.e., total of $30) to reimburse for the minutes used to complete the survey. The invitation letter for post-intervention survey and FedEx follow-up letter for the post-intervention survey will be sent only to pre-intervention survey respondents.

    • Program Staff (Key Informants): State Agencies and Business Grantees will identify program administrators, retail and market operators and representatives from the partnering local community organization(s), to participate in two semi-structured telephone interviews regarding implementation of the incentive program. The interview procedures will be the same for the two interviews; trained project staff will use the interview guide and record the discussions. A thank you postcard will be mailed to all program staff. Since program staff are expected to cooperate with and contribute to the independent evaluation, they will be no monetary incentives for their participation in this study.

    • State, Local or Tribal and Business-for-not-for-profit: Grantees will be emailed on a quarterly basis, with a request to complete the online minimum core data survey for all outlets that are involved in the incentive program. As indicated in the program staff section above, grantees are expected to cooperate with and contribute to the independent evaluation; therefore, grantees will not receive monetary incentives for their participation in the evaluation. However, they may receive a summary data report about their FINI grant project.

    Affected Public: Respondent groups identified include: Individuals/Households (SNAP participants), State/Local or Tribal Government (Respondent Types: Grantees and program administrators), and Profit/Non-Profit Businesses (Respondent Types: Grantees, program administrators, retailers, and community organizations).

    Estimated Number of Respondents: The total number of respondents is 10,266. This includes 9 SNAP participants that will pretest 2 survey questions and 10,152 SNAP participants (6,903 will complete the pre-intervention survey and 3,093 will complete the pre-intervention and post-intervention surveys) with an 80 percent response rate for eligible respondents). A total of 105 key informant interviews will be conducted annually (5 State/Local government grantees; 30 for profit/nonprofit grantees; and 70 retailer/local community staff). The minimum core data form will be completed by 35 grantees (5 State/Local government grantees and 30 for profit/nonprofit grantees), on a quarterly basis. Note that some grantees have multiple sites and they will coordinate data collection activities with their outlets. The average number of outlets is 302 for State/Local government grantee and 88 per profit/nonprofit grantee. We expect a 100 percent response rate for the grantees program staff/key informant interviews and for the completion and quarterly submission of the minimum core data.

    Estimated Number of Responses per Respondent: SNAP participants and program staff/key informant interviews will respond two times; grantees will respond 16 times, on average (on a quarterly basis).

    Estimated Time per Response: Pretesting 2 questions will take .25 hours. The pre-intervention and post-intervention surveys completed by mail will take 20 minutes (.334 hours) and those completed over the telephone will take 25 minutes. Program Staff/Key informant interviews will take 1 hour, and the minimum core data form will take about 20 minutes per outlet, per quarter.

    Estimated Total Burden on Respondents: 17,584.2 hours. See the table below for estimated total burden for each type of respondent.

    The burden is broken down by respondent type:

    BILLING CODE 3410-34-P EN10SE15.001 EN10SE15.002 EN10SE15.003 Dated: September 4, 2015. Yvette S. Jackson, Acting Administrator, Food and Nutrition Service.
    [FR Doc. 2015-22782 Filed 9-9-15; 8:45 am] BILLING CODE 3410-34-C
    BROADCASTING BOARD OF GOVERNORS Notice of Public Availability of the Broadcasting Board of Governors FY-2013 Service Contract Analysis and FY-2014 Service Contract Inventory AGENCY:

    The Broadcasting Board of Governors.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117), the Broadcasting Board of Governors (BBG) is publishing this notice to instruct the public of the availability of its FY-2013 Service Contract Analysis and FY-2014 Service Contract Inventory. They are available on the BBG Internet site at http://www.bbg.gov/about-the-agency/research-reports/other/bbg-service-contract-inventory/. The service contract inventory provides information on service contract actions over $25,000 made in FY-2014. The information is organized by function to show how contracted resources are distributed throughout the Agency. The inventory has been developed in accordance with guidance on service contract inventories issued on November 5, 2010 and on December 19, 2011 by the Office of Management and Budget, Office of Federal Procurement Policy (OFPP).

    FOR FURTHER INFORMATION CONTACT:

    James McGuirk, Senior Procurement Analyst, IBB Office of Contracts via email at [email protected] or at telephone number (202) 382-7840.

    Dated: September 3, 2015. Chris Luer, Chief, IBB Office of Administration.
    [FR Doc. 2015-22861 Filed 9-9-15; 8:45 am] BILLING CODE 8610-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Mississippi Advisory Committee; Correction AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice; correction.

    SUMMARY:

    The U.S. Commission on Civil Rights published a document in the Federal Register of July 21, 2015, concerning notice of a public meeting of the Mississippi Advisory Committee. The public meeting has been cancelled and will be rescheduled.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Mojnaroski, DFO, at 312-353-8311 or [email protected]

    Correction

    In the Federal Register of July 21, 2015, in FR Doc. 2015-17785, on pages 43060-43061, withdraw the notice of a meeting of the Mississippi Advisory Committee for September 8, 2015, via conference call. The meeting has been cancelled and will be rescheduled.

    Dated: September 4, 2015. David Mussatt, Chief Regional Programs Unit.
    [FR Doc. 2015-22824 Filed 9-9-15; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).

    Agency: U.S. Census Bureau.

    Title: School District Review Program.

    OMB Control Number: 0607-XXXX.

    Form Number(s): N/A.

    Type of Request: Regular Submission.

    Number of Respondents: 102.

    Average Hours per Response: 20.

    Burden Hours: 2040.

    Needs and Uses: The mission of the Geography Division (GEO) within the U.S. Census Bureau is to plan, coordinate, and administer all geographic and cartographic activities needed to facilitate Census Bureau statistical programs throughout the United States and its territories. GEO manages programs that continuously update features, boundaries, addresses, and geographic entities in the Master Address File/Topologically Integrated Geographic Encoding and Referencing (MAF/TIGER) System. The National Center for Education Statistics (NCES) sponsors the School District Review Program, which enables the Census Bureau to create special tabulations of Decennial Census data by school district geography. The demographic data produced by the Census Bureau for the NCES and related to each school district is of vital importance for each state's allocation under Title I of the Elementary and Secondary Education Act as amended by the No Child Left Behind Act of 2001. The NCES identifies a Title I Coordinator, and the Census Bureau works with the NCES on assigning a Mapping Coordinator in each state to work with the Census Bureau to implement this work. The respondents for the SDRP are the Title I Coordinators and Mapping Coordinators from the fifty states and the District of Columbia. The SDRP invites respondent participation in two phases of the program: Annotation and Verification. As part of the 2015-2016 SDRP Annotation phase, the Mapping Coordinator in each state will receive a variety of materials from the Census Bureau to use in their review and update of school district boundaries, names, codes and geographic relationships. The Mapping Coordinators will use the Census Bureau's MAF/TIGER Partnership Software (MTPS) and Census supplied spatial data in digital shapefile format to identify boundary changes for their school districts. As part of the Verification phase of the SDRP, Mapping Coordinators will have the opportunity to either use the MTPS with Census Bureau supplied Verification shapefiles, or the Census Crowdsourcing Tool (CCT) to review and verify that the Census Bureau correctly captured their submitted information. If a respondent finds cases where the Census Bureau did not incorporate their proposed submissions correctly, the respondent can tag and comment the area of issue and that information will become available to the Census Bureau for corrections. The Census Bureau conducts the SDRP every two years under agreement from the NCES of the U.S. Department of Education (ED). The Census Bureau invites state education officials to participate in the review and update of its national inventory of school district boundaries and district information. State education officials collaborate with local superintendents on their responses. The participants review and provide updates and corrections to the elementary, secondary, and unified school district names and Federal Local Education Agency (LEA) identification numbers, school district boundaries, and the grade ranges for which a school district is financially responsible. The participants submit updated digital spatial files back to the Census Bureau. The Census Bureau uses the updated school district information along with the most current Census population and income data, current population estimates, and tabulations of administrative records data, to form the Census Bureau's estimates of the number of children aged five through seventeen in low-income families for each school district. These estimates of the number of children in low-income families residing within each school district are the basis of the funding allocation for each school district under Title I of the Elementary and Secondary Education Act as amended by the No Child Left Behind Act of 2001, Public Law (Pub. L.) 107-110.

    Affected Public: All fifty states and the District of Columbia.

    Frequency: Annually.

    Respondent's Obligation: Voluntary.

    Legal Authority: Title 13 U.S.C. Section 16, 141, and 193. Title I, Part A of the Elementary and Secondary Education Act.

    This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: September 4, 2015. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2015-22812 Filed 9-9-15; 8:45 am] BILLING CODE 3510-07-P0
    DEPARTMENT OF COMMERCE Census Bureau Proposed Information Collection; Comment Request; Generic Clearance for the 2020 Census Field Tests AGENCY:

    U.S. Census Bureau, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).

    DATES:

    To ensure consideration, written comments must be submitted on or before November 9, 2015.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Erin Love, Census Bureau, HQ-3H468E, Washington, DC 20233; (301) 763-2034 (or via the Internet at [email protected]).

    SUPPLEMENTARY INFORMATION: I. Abstract

    The U.S. Census Bureau is committed to conducting research towards a 2020 Census that costs less while maintaining high quality results. The Census Bureau plans to request an extension of the current OMB approval to conduct a series of small-scale tests to research and evaluate how the use of automation can improve data collection activities. These tests will explore how the Census Bureau can use automated processes to improve efficiency, data quality, and response rates and reduce respondent burden.

    This information collection will operate as a generic clearance. The estimated number of respondents and annual reporting hours requested cover both the known and yet to be determined tests. A generic clearance is needed for these tests because though each share similar methodology, the exact number of tests and the explicit details of each test to be performed has yet to be determined. Once information collection plans are defined, they will be submitted on an individual basis in order to keep OMB informed as these tests progress.

    The Census Bureau plans to test the use of mobile computing devices, emails, text messages and applications in self-enumeration and data collection tasks. The enumeration functions research will focus on using various applications to enumerate households and persons. The research and evaluation may include: Developing an automated enumeration questionnaire; inviting respondents to participate; reminding them to participate; usability issues; conducting interviews; and ability to toggle to non-English language instrument. To test enumeration functions, the Census Bureau may conduct the enumeration directly with a household member or knowledgeable respondent. The questions asked in these tasks will be content or experimental content for the 2020 Census operations and forms, along with some attitudinal and satisfaction debriefing questions.

    II. Method of Collection

    The information will be collected through observations, self-response, face-face interviews, and/or telephone interviews.

    III. Data

    OMB Control Number: 0607-0971.

    Form Number: Not yet determined.

    Type of Review: Regular submission.

    Affected Public: Individuals or households.

    Estimated Number of Respondents: 36,000 per year.

    Estimated Time per Response: 10 minutes.

    Estimated Total Annual Burden Hours: 6000 hours annually.

    Estimated Total Annual Cost: There is no cost to the respondent other than time to answer the information request.

    Respondents Obligation: Mandatory.

    Legal Authority: Title 13 U.S.C. Sections 141 and 193.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 4, 2015. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2015-22789 Filed 9-9-15; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-58-2015] Foreign-Trade Zone (FTZ) 133—Quad-Cities, Iowa/Illinois; Notification of Proposed Production Activity; CNH Industrial America, LLC; Subzone 133E, (Agricultural and Construction Equipment, Subassemblies and Kits), Burlington and West Burlington, Iowa

    CNH Industrial America, LLC (CNH), operator of Subzone 133E, submitted a notification of proposed production activity to the FTZ Board for its facilities located within Subzone 133E at sites in Burlington and West Burlington, Iowa. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 2, 2015.

    The CNH facilities are used for the production and distribution of agricultural and construction equipment, subassemblies and kits. Pursuant to 15 CFR 400.14(b), FTZ activity 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 CNH from customs duty payments on the foreign-status components used in export production. On its domestic sales, CNH would be able to choose the duty rates during customs entry procedures that apply to decal kits; toolbox kits; air conditioner kits; air conditioner service kits; forklifts; crawler dozers; tractor loaders; tractor loader backhoes; tractor loader backhoe assemblies and attachments (shafts, hook assemblies, buckets, shaft masts); cabs units; forklifts; cab service kits; valve service kits; engine hoods; loaders; bucket arms; boom and dipper assemblies; link assemblies; crawler dozer frames with tracks; axle assemblies; cab assemblies; draper, auger, and corn headers; bucket service kits; strippers for combine headers; wheel mount assemblies; combine header service kits; combine header arm assemblies, frames, and floors; locking tabs; reel tine flap kits; header dividers; hydraulic valve kits; valve part kits; beacon kits; relay voltage kits; electrical control kits; programmable controller kits; electrical service kits; and ignition wire service kits (duty rates range from duty-free to 5.8%) for the foreign-status inputs noted below. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The components and materials sourced from abroad include: Articles of plastic (hoses; hose assemblies; shields; tubes without fittings; non-reinforced tubes, pipes and hoses with fittings; reinforced tubes, pipes and hoses with fittings; caution decals; insulators; fuel caps; steering wheel knobs; handles; spacers; tool boxes; joints; insulators; clamps; clips; retainers; strips; trim; seals; washers; and gaskets); articles of rubber (gaskets; insulation; pads; weather strips and sheets; weather strip profile shapes; insulation; non-reinforced elbows; tubes; and hoses without fittings; metal reinforced hose and hose assemblies without fittings; metal reinforced hoses; hose assemblies and tubes with fittings; textile reinforced rubber hoses; hose assemblies and sleeves without fittings; textile reinforced flexible hoses; air conditioner hoses; hose assemblies with fittings; reinforced (other materials) air hoses; flexible hoses; hydraulic hoses; alternator hoses and hose assemblies without fittings; reinforced (other materials) radiator hoses; pipes; flexible hoses with fittings; textile reinforced transmission belts; v-belts (60 to 180 cm outside circumference); textile reinforced transmission belts and v-belts (180 to 240 cm outside circumference); other transmission v-belts; textile reinforced belts; transmission belts; belt assemblies; belts; buffers; gaskets; seals; floor mats; liners; o-rings; packing; protection caps; glass stops; covers; shifter control lever boots; grommets; bellows; bushings; insulator blocks; mounts; pads; bands; stoppers and strips); coated paper gaskets and washers; training manuals; drawings; schematics; catalogs; rubber canvas radiator seals; anti-skid mats and strips; tempered safety glass for cabs of vehicles of chapter 87; mirrors and mirror assemblies; cold-rolled steel hollow tubes; stainless steel tubes; articles of iron or steel (tubes; couplings; connectors; fittings; elbows; stems; adapters; unions; o-rings; tees; cables; cable assemblies; ropes; wire ropes; roller chains; roller chain assemblies; chains; chain kits and assemblies; chain links and assemblies; screws; bolts; nuts; plugs; rods; retainers; rings; latches; washers; shims; pins; pin assemblies; rivets; springs; clamps; brackets; supports; racks; tool boxes; clips; and flanges); copper ground straps and cables; washers; and rivets; hex wrench sets; hammers; gathering chain tool assemblies; wrenches; latches; locks; catches; handles; lock assemblies; locks; lock keys; ignition keys; hinges; supports; iron/steel/aluminum/zinc/other base metal angles, dampers, brackets, gas struts, shock absorbers, springs, supports, plates, and mounts; plugs; radiator caps; covers; dust caps of base metal; decals; name plates; identity plates; emblems; engines; belt tensioners; hydraulic tubes; hydraulic cylinders; hydraulic motors and assemblies; fuel pumps; hydraulic fluid power pumps; hydraulic fluid power gear pumps; master cylinders; brake cylinders; pump modules and related parts (pump cores, covers, diaphragms, filters, gear sets, housings, impellers, repair kits, nozzles, pistons and plates); fans and fan assemblies; blowers and blower assemblies; turbochargers; compressors and compressor kits; heater cores; air conditioners; evaporator core assemblies; condensers; receiver-dryer assemblies; water filters; water screens; water strainers; oil filters; fuel filters; filter elements; hydraulic filters; filter receiver dryers; heaters; thermostats; filter cartridges; filter elements; filter strainers; air filters; air cleaners and assemblies; catalytic converters; cab filters; air dryer assemblies; receiver dryer assemblies; air cleaner manifolds and housing; oil and fuel filter elements; strainer assemblies; sprayer parts (tips, tubes, nozzles, tanks, supports, sprays, spindles, spacers, retainers, reservoirs for sprayers); jacks; lift cylinders; counterweights; mufflers; valve plates; buckets and bucket attachments; channels; wrist rest assemblies; bezels, brackets, bushings, dippers and arms for buckets; link blocks; frames; support brackets; elbows; cabs; shovel brackets; baffles; shovel discs; mounts; auger floor troughs; caps; door panels; tank ducts; fuel tanks; air intake tubes; header frames; cutterbars; conversion kits; accumulators; rotary brush attachments; wipers; straps; wiper blades and assemblies; hydraulic valves; center joints; swivel joints; joysticks; copper, iron or steel check valves; aspirator kits; breathers; plugs; poppets; copper/iron/steel shut-off valves, control valves, drain cocks and assemblies, quick couplings, valve fittings, and stop valves; copper/iron/steel connecting and coupling blocks, cylinder caps, cartridges, coils, control blocks, hydraulic manifolds, plugs, pistons, plug covers, control and hydraulic valves for non-hand operated valves; ball bearings; bearings and bearing assemblies; roller bearings; bearing cups; shims; spacers; tapered bearings; thrust washers; balls; collars; rings; races; transmission shafts; drive shafts and shaft assemblies; bearing housings; bearing carriers; bearing supports; torque converters; transmissions; drive assemblies; gear reduction units; reducers; final drive housings; swing reduction assemblies; gear pump drives; slewing rings; pulleys and pulley idlers; flywheels; adapters; bushings; clutches; couplings and coupling assemblies; universal joints; gears; gear shifter forks; sprockets; exhaust seals; engine gaskets and kits; seal kits; oil seals; seal repair kits; dust seals; taper fasteners; oil seals; lube nipples; actuators; electric motors; wiper motors; DC converters; printed circuit boards; magnets; magnetic rings; solenoids; coils; wet batteries; dry batteries; starter motors; alternators; visual signaling equipment; working lights; floodlights; alarms; horns; buzzers; welding orifices; wire feeders; cable units; encoder cables; welding torches; welding power sources; conductive metals; tip bodies; block heaters; heater assemblies; heating elements; fluid heaters; heaters; heater blocks; wireless network sensors; speakers; software on CD-Rom; video cameras; radars; true ground sensors; radios; radio parts; radio antennas; beacons; indicator lights; monitors; light kits; control levers; potentiometers; sensors; powertrain sensors; resistors; fuses; electrical timers; relays; switch assemblies; electrical shift lever buttons; electrical control units; handle assemblies; electrical connectors; wire harnesses; sockets; terminal cables; clamps; electrical connectors; lugs; terminal connectors; relay assemblies; electrical connectors; electrical control units; switch assemblies; modules; panel assemblies; electrical connectors; wire connectors; housing contacts; lamps; headlamps; bulbs; diodes; pressure, humidity and shaft speed sensors; transmitters; cables; ground cables; electrical wires; wire assemblies; wire harnesses; electrical cables; antenna cables; safety belts; buckles; trim panels and assemblies; air ducts; head and roof liners; mounts; brake pipes; gearbox covers; axles; axle bushings; wheel weights; shock absorbers; arms, housings and castings for shock absorbers; radiators; exhaust system pipes and tubes; ball joints; tie rods; steering columns and wheels; track rod assemblies; display mounts; trailer hitch hammer straps; drawbar hammer straps; coolant reservoirs; wiper tank fixing brackets; washers; temperature sensors; thermostatic switches; fuel sender units; pressure gauges; indicators; pressure switches; hourmeters; instrument clusters; tachometers; instrument panels; gauge clusters; cold start units; environmental control units; and seats (duty rates range from free to 9.9%).

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 20, 2015.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    FOR FURTHER INFORMATION CONTACT:

    Diane Finver at [email protected] or (202) 482-1367.

    Dated: September 3, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-22853 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-57-2015] Foreign-Trade Zone (FTZ) 265—Conroe, Texas; Notification of Proposed Production Activity; Bauer Manufacturing Inc. (Stationary Oil/Gas Drilling Rigs), Conroe, Texas

    The City of Conroe, Texas, grantee of FTZ 265, submitted a notification of proposed production activity to the FTZ Board on behalf of Bauer Manufacturing Inc. (Bauer), located in Conroe, Texas. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on August 19, 2015.

    Bauer has authority to produce pile drivers and leads, boring machinery, foundation construction equipment, foundation casings, related parts and sub-assemblies, and tools and accessories for pile drivers and boring machinery within Site 1 of FTZ 265. The current request would add new finished products (stationary oil/gas drilling rigs and related subassemblies) 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 Bauer from customs duty payments on the foreign status materials and components used in export production. On its domestic sales, Bauer would be able to choose the duty rate during customs entry procedures that applies to pile drivers and leads, boring machinery, foundation construction equipment, foundation casings, related parts and sub-assemblies, tools and accessories for pile drivers and boring machinery, and stationary oil/gas drilling rigs and related subassemblies (duty rates: Free, 2.9%, or 5.0%) 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: Subassemblies and components for stationary drilling rigs; sealing paper for gaskets; printed materials (protective covers for keyboards); electric voltage converters; cotton transport straps (Subheading 5806.31, 8.8%); antennas; steel flanges; expansion tanks; and, metal clamps (duty rate ranges from free to 8.8%). Inputs included in textile category 229 (classified within HTSUS Subheading 5806.31) will be admitted to the zone in privileged foreign status (19 CFR 146.41), thereby precluding inverted tariff benefits on such items.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 20, 2015.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Pierre Duy at [email protected] or (202) 482-1378.

    Dated: August 28, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-22860 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-125-2015] Foreign-Trade Zone 77—Memphis, Tennessee Application for Expansion of Subzone 77E; Cummins, Inc., Memphis, Tennessee

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the City of Memphis, Tennessee, grantee of FTZ 77, requesting to expand Subzone 77E at the facilities of Cummins, Inc., located in Memphis, Tennessee. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on August 28, 2015.

    Subzone 77E was approved on December 20, 2010 (Board Order 1735, 76 FR 87, 01/03/2011) and currently consists of one site (23.3 acres) located at 4155 Quest Way, Memphis.

    The applicant is requesting authority to expand the subzone to include two additional sites: Proposed Site 2 (19.91 acres)—5800 Challenge Drive, Memphis; and, Proposed Site 3 (20.9 acres)—4650 Quality Drive, Memphis. The existing subzone and expanded portion would be subject to the existing activation limit of FTZ 77. No authorization for production activity has been requested at this time.

    In accordance with the FTZ Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 20, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 4, 2015.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Kathleen Boyce at [email protected] or (202) 482-1346.

    Dated: August 28, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-22859 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-820] Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Preliminary Results of 2013-2014 Antidumping Duty Administrative Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    In response to a request from the Petitioner,1 the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain hot-rolled carbon steel flat products from India (hot-rolled steel). The period of review (POR) is December 1, 2013, through November 30, 2014. This review covers four companies, Ispat Industries Ltd. (Ispat), JSW Steel Ltd. (JSW), JSW Ispat Steel Ltd. (JSW Ispat), and Tata Steel Ltd. (Tata). We preliminarily determine that Ispat, JSW, JSW Ispat, and Tata had no entries of subject merchandise during the POR. Interested parties are invited to comment on these preliminary results.

    1 The Petitioner is Nucor Corporation.

    DATES:

    Effective Date: September 10, 2015.

    FOR FURTHER INFORMATION CONTACT:

    George McMahon or Eric Greynolds, AD/CVD Operations Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1167 and (202) 482-6071, respectively.

    SUPPLEMENTARY INFORMATION: Scope of the Order

    The merchandise subject to this order is certain hot-rolled carbon steel flat products from India. The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Products subject to this order may also enter under HTSUS subheadings: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise subject to this order is dispositive.2

    2 A full description of the scope of the order is contained in the memorandum to Paul Piquado, Assistant Secretary for Enforcement and Compliance, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, titled “Certain Hot-Rolled Carbon Steel Flat Products from India: Decision Memorandum for the Preliminary Results of the Antidumping Duty Administrative Review; 2013-2014” (Preliminary Decision Memorandum), dated concurrently with and adopted by this notice.

    Methodology

    The Department conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our preliminary results, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed Preliminary Decision Memorandum and the electronic version of the Preliminary Decision Memorandum are identical in content. A list of the topics discussed in the Preliminary Decision Memorandum is attached as an Appendix to this notice.

    Preliminary Determination of No Shipments

    Ispat, JSW, JSW Ispat, and Tata submitted timely-filed certifications that they had no exports, sales, or entries of subject merchandise during the POR,3 and a query of U.S. Customs and Border Protection (CBP) data did not show any POR entries of subject merchandise by Ispat, JSW, JSW Ispat, and Tata.4 In addition, CBP did not identify any entries of subject merchandise from Ispat, JSW, JSW Ispat, and Tata during the POR in response to an inquiry from the Department asking CBP for such information.5 Based on the foregoing, the Department preliminarily determines that Ispat, JSW, JSW Ispat, and Tata had no shipments of the subject merchandise, and, therefore, no reviewable transactions, during the POR.

    3See Letter from JSW titled, “Certain Hot-Rolled Carbon Steel Flat Products from India: No Shipment Certification of JSW Steel Ltd.” (February 27, 2015). JSW's letter stated, “{p}lease note that this statement applies as well to the companies listed in the Department's initiation notice as Ispat Industries Ltd. and JSW Ispat Steel Ltd. Those companies no longer exist as separate entities, but have been merged into JSW Steel.” See Letter from Tata titled, “Antidumping Duty Review of Certain Hot-Rolled Carbon Steel Flat Products from India: Tata Steel Limited Certification of No Shipments” (March 10, 2015); see also Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR 6041 (February 4, 2015).

    4See Memorandum to the File titled, “Customs and Border Protection (CBP) Data Query Results,” dated February 4, 2015; see also Memorandum to the File titled, “Customs and Border Protection (CBP) Data Query Results based on Second Data Query,” dated February 24, 2015.

    5See CBP Message Number 5204308, dated July 23, 2015.

    Assessment Rate

    Upon issuance of the final results of this administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department intends to issue assessment instructions to CBP 15 days after publication of the final results of this review.

    The Department clarified its “automatic assessment” regulation on May 6, 2003.6 If applicable, this clarification will apply to all entries of subject merchandise during the POR produced or exported by Ispat, JSW, JSW Ispat, and Tata, for which these companies did not know that its merchandise was destined for the United States. Furthermore, this clarification applies to all POR entries entered under the case number for Ispat, JSW, JSW Ispat, and Tata if we continue to make a final determination of no shipments of subject merchandise, because these companies and their representatives certified that they made no POR shipments of subject merchandise for which they had knowledge of U.S. destination. In such instances, we will instruct CBP to liquidate these entries at the all others rate established in the less-than fair-value (LTFV) investigation, as amended, which is 38.72 percent,7 if there is no rate for the intermediary involved in the transaction. These cash deposit requirements, when imposed, shall remain in effect until further notice.8

    6See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment Policy Notice).

    7See Notice of Amended Final Antidumping Duty Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products from India, 66 FR 60194 (December 3, 2001) (Amended Final Determination).

    8See Assessment Policy Notice for a full discussion of this clarification; see also, e.g., Magnesium Metal From the Russian Federation: Final Results of Antidumping Duty Administrative Review, 75 FR 56989, 56990 (September 17, 2010).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2) of the Act: (1) The cash deposit rates for respondents noted above, which claimed no shipments, will remain unchanged from the rates assigned to the companies in the most recently completed review of the companies; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 38.72 percent, the all-others rate established in the LTFV investigation, as amended. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    Public Comment

    Pursuant to 19 CFR 351.309(c)(1)(ii) interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.9 Parties who submit comments are requested to submit: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.10 All briefs must be filed electronically using ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS.

    9See 19 CFR 351.309(d).

    10See 19 CFR 351.309(c)(2), (d)(2).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system within 30 days of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) The number of participants; and (3) A list of the issues parties intend to discuss. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, at a time and location to be determined.11 Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs.

    11See 19 CFR 351.310.

    Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their case briefs, within 120 days after issuance of these preliminary results.

    Notification to Importers

    This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and increase the subsequent assessment of the antidumping duties by the amount of antidumping duties reimbursed.

    These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: September 2, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Preliminary Results Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Preliminary Determination of No Shipments V. Recommendation
    [FR Doc. 2015-22855 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-502] Certain Welded Carbon Steel Standard Pipes and Tubes From India: Rescission of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is rescinding its administrative review of the antidumping duty order on certain welded carbon steel standard pipes and tubes from India for the period of review (POR) May 1, 2014, through April 30, 2015.

    DATES:

    Effective Date: September 10, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Dmitry Vladimirov, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-0665.

    SUPPLEMENTARY INFORMATION: Background

    On May 29, 2015, based on a timely request for review by Allied Tube & Conduit and JMC Steel Group, domestic interested parties and producers of certain welded carbon steel standard pipes and tubes from India,1 the Department initiated an administrative review of the antidumping duty order on certain welded carbon steel standard pipes and tubes from India with respect to Lloyds Metals & Engineers Limited and Lloyds Line Pipe Ltd., Lloyds Steel Industries Ltd., Jindal Pipes Limited, Maharashtra Seamless Limited, Ratnamani Metals Tubes Ltd., and Tata Iron and Steel Co., Ltd.2

    1See letter from Allied Tube & Conduit and JMC Steel Group to the Department, “Circular Welded Carbon Steel Pipes and Tubes from India: Request for Administrative Review” (May 29, 2015).

    2See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR 37588 (July 1, 2015).

    On August 18, 2015, Allied Tube & Conduit and JMC Steel Group withdrew their request for an administrative review.3

    3See letter from Allied Tube & Conduit and JMC Steel Group to the Department, “Circular Welded Carbon Steel Pipes and Tubes from India: Withdrawal of Request for Administrative Review” (August 18, 2015).

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. Allied Tube & Conduit and JMC Steel Group withdrew their request for review within the 90-day time limit. Because no other party requested a review, the Department is rescinding this administrative review of the antidumping duty order on certain welded carbon steel standard pipes and tubes from India.

    Assessment

    The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of certain welded carbon steel standard pipes and tubes from India during the POR at rates equal to the cash deposit rate of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice in the Federal Register.

    Notifications

    This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO, in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).

    Dated: September 3, 2015. Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2015-22852 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-834-807] Silicomanganese From Kazakhstan: Rescission of Antidumping Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) is rescinding its administrative review of the antidumping duty order on silicomanganese from Kazakhstan for the period of review (POR) May 1, 2014, through April 30, 2015.

    DATES:

    Effective Date: September 10, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Hermes Pinilla, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-3477.

    SUPPLEMENTARY INFORMATION: Background

    On June 1, 2015, based on a timely request for review by Eramet Marietta, Inc. (Eramet) and Felman Production, LLC (Felman), domestic interested parties and producers of silicomanganese from Kazakhstan,1 the Department initiated an administrative review of the antidumping duty order on silicomanganese from Kazakhstan 2 with respect to Aksu Ferroalloy Plant, Alloy 2000, S.A., Considar, Inc., and Transnational Co. Kazchrome.3

    1See letter from Eramet and Felman to the Department, “Silicomanganese from Kazakhstan: Request for Administrative Review of Antidumping Order” (June 1, 2015).

    2See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR 37588 (July 1, 2015) (Initiation Notice).

    3 This company was inadvertently spelled as Kazuchrome in the Initiation Notice. The Department corrected the spelling in the initiation notice for orders with June anniversary dates. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 80 FR at 45950 (August 3, 2015).

    On August 25, 2015, Eramet and Felman withdrew their request for an administrative review.4

    4See letter from Eramet and Felman to the Department, “Silicomanganese from Kazakhstan: Withdrawal of Request for Administrative Review of Antidumping Order” (August 25, 2015).

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. Eramet and Felman withdrew their request for review within the 90-day time limit. Because no other party requested a review, the Department is rescinding this administrative review of the antidumping duty order on silicomanganese from Kazakhstan.

    Assessment

    The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of silicomanganese from Kazakhstan during the POR at rates equal to the cash deposit rate of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice in the Federal Register.

    Notifications

    This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO, in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).

    Dated: September 3, 2015. Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2015-22851 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-840] Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review; 2013-2014 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On March 6, 2015, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp from India.1 The period of review (POR) is February 1, 2013, through January 31, 2014. For the final results, we continue to find that all companies involved in this review sold subject merchandise at less than normal value.

    1See Certain Frozen Warmwater Shrimp From India; Preliminary Results of Antidumping Duty Administrative Review; 2013-2014, 80 FR 12147 (March 6, 2015) (Preliminary Results).

    DATES:

    Effective Date: September 10, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Blaine Wiltse or Elizabeth Eastwood, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6345 or (202) 482-3874, respectively.

    SUPPLEMENTARY INFORMATION: Background

    This review covers 211 producers/exporters. The respondents which the Department selected for individual examination are Devi Fisheries Limited (Devi Fisheries) and Falcon Marine Exports Limited/K.R. Enterprises (Falcon). The respondents which were not selected for individual examination are listed in the “Final Results of the Review” section of this notice.

    On March 6, 2015, the Department published the Preliminary Results. In April 2015, we received case briefs from the American Shrimp Processors Association, and Devi Fisheries, Falcon, and 13 additional producers/exporters of the subject merchandise (collectively, the respondents); we also received rebuttal briefs from the above-mentioned interested parties and the Ad Hoc Shrimp Trade Action Committee.

    On June 23, 2015, we postponed the final results by 60 days, until September 2, 2015.2

    2See memorandum to Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, from Stephen Banea, International Trade Compliance Analyst, Office II, Antidumping and Countervailing Duty Operations, entitled “Certain Frozen Warmwater Shrimp from India; 2013-2014 Administrative Review: Extension of Deadline for Final Results,” dated June 23, 2015.

    Scope of the Order

    The merchandise subject to the order is certain frozen warmwater shrimp.3 The product is currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) item numbers: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. Although the HTSUS numbers are provided for convenience and customs purposes, the written product description remains dispositive.

    3 For a complete description of the Scope of the Order, see the memorandum from Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, entitled, “Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from India,” (dated concurrently with these results) (Issues and Decision Memorandum), which is hereby adopted by this notice.

    Analysis of Comments Received

    All issues raised in the case briefs by parties are listed in the Appendix to this notice and addressed in the Issues and Decision Memorandum. Parties can find a complete discussion of these issues and the corresponding recommendations in this public memorandum, which is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov; the Issues and Decision Memorandum is also available to all parties in the Central Records Unit, Room B8024, of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    Changes Since the Preliminary Results

    Based on a review of the record and comments receive from interested parties regarding our Preliminary Results, we made no changes to Devi Fisheries' or Falcon's margin calculations.

    Period of Review

    The POR is February 1, 2013, through January 31, 2014.

    Final Results of the Review

    We are assigning the following dumping margins to the firms listed below as follows:

    Manufacturer/exporter Percent margin Devi Fisheries Limited/Satya Seafoods Private Limited/Usha Seafoods 3.28 Falcon Marine Exports Limited/K.R. Enterprises 2.63

    Review-Specific Average Rate Applicable to the Following Companies: 4

    4 This rate is based on the simple average of the margins calculated for those companies selected for individual review. Because we cannot apply our normal methodology of calculating a weighted-average margin due to requests to protect business proprietary information, we find this rate to be the best proxy of the actual weighted-average margin determined for the mandatory respondents. See Ball Bearings and Parts Thereof From France, et al.: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 FR 53661, 53663 (September 1, 2010); see also the memorandum from Blaine Wiltse, Senior International Trade Compliance Analyst, to the file, entitled, “Calculation of the Review-Specific Average Rate in the 2013-2014 Administrative Review of Certain Frozen Warmwater Shrimp from India,” dated March 6, 2015.

    Manufacturer/exporter Percent margin Abad Fisheries 2.96 Accelerated Freeze-Drying Co 2.96 Adilakshmi Enterprises 2.96 Akshay Food Impex Private Limited 2.96 Allana Frozen Foods Pvt. Ltd 2.96 Allanasons Ltd 2.96 AMI Enterprises 2.96 Amulya Seafoods 2.96 Anand Aqua Exports 2.96 Ananda Aqua Applications/Ananda Aqua Exports (P) Limited/Ananda Foods 2.96 Ananda Enterprises (India) Private Limited 2.96 Andaman Sea Foods Pvt. Ltd 2.96 Angelique Intl 2.96 Anjaneya Seafoods 2.96 Apex Frozen Foods Private Limited 2.96 Arvi Import & Export 2.96 Asvini Exports 2.96 Asvini Fisheries Private Limited 2.96 Avanti Feeds Limited 2.96 Ayshwarya Seafood Private Limited 2.96 Baby Marine Exports 2.96 Baby Marine International 2.96 Baby Marine Sarass 2.96 Balasore Marine Exports Private Limited 2.96 Bhatsons Aquatic Products 2.96 Bhavani Seafoods 2.96 Bijaya Marine Products 2.96 Blue Fin Frozen Foods Pvt. Ltd 2.96 Blue Water Foods & Exports P. Ltd 2.96 Bluefin Enterprises 2.96 Bluepark Seafoods Private Ltd 2.96 BMR Exports 2.96 Britto Exports 2.96 C P Aquaculture (India) Ltd 2.96 Calcutta Seafoods Pvt. Ltd 2.96 Canaan Marine Products 2.96 Capithan Exporting Co 2.96 Castlerock Fisheries Ltd 2.96 Chemmeens (Regd) 2.96 Cherukattu Industries (Marine Div.) 2.96 Choice Canning Company 2.96 Choice Trading Corporation Private Limited 2.96 Coastal Aqua 2.96 Coastal Corporation Ltd 2.96 Cochin Frozen Food Exports Pvt. Ltd 2.96 Coreline Exports 2.96 Corlim Marine Exports Pvt. Ltd 2.96 D2 D Logistics Private Limited 2.96 Damco India Private Limited 2.96 Delsea Exports Pvt. Ltd 2.96 Devi Marine Food Exports Private Ltd 2.96 Kader Exports Private Limited/ Kader Investment and Trading Company Private Limited/ Liberty Frozen Foods Pvt. Ltd/Liberty Oil Mills Ltd/ Premier Marine Products Private Limited 5/ Universal Cold Storage Private Limited Devi Sea Foods Limited 6 2.96 Diamond Seafood Exports/Edhayam Frozen Foods Pvt. Ltd 2.96 Kadalkanny Frozen Foods/Theva & Company Digha Seafood Exports 2.96 Esmario Export Enterprises 2.96 Exporter Coreline Exports 2.96 Five Star Marine Exports Private Limited 2.96 Forstar Frozen Foods Pvt. Ltd 2.96 Frontline Exports Pvt. Ltd 2.96 G A Randerian Ltd 2.96 Gadre Marine Exports 2.96 Galaxy Maritech Exports P. Ltd 2.96 Gayatri Seafoods 2.96 Geo Aquatic Products (P) Ltd 2.96 Geo Seafoods 2.96 Goodwill Enterprises 2.96 Grandtrust Overseas (P) Ltd 2.96 GVR Exports Pvt. Ltd 2.96 Haripriya Marine Export Pvt. Ltd 2.96 Harmony Spices Pvt. Ltd 2.96 HIC ABF Special Foods Pvt. Ltd 2.96 Hindustan Lever, Ltd 2.96 Hiravata Ice & Cold Storage 2.96 Hiravati Exports Pvt. Ltd 2.96 Hiravati International P. Ltd (located at APM—Mafco Yard, Sector—18, Vashi, Navi, Mumbai—400 705, India) 2.96 Hiravati International Pvt. Ltd (located at Jawar Naka, Porbandar, Gujarat, 360 575, India) 2.96 IFB Agro Industries Ltd 2.96 Indian Aquatic Products 2.96 Indo Aquatics 2.96 Innovative Foods Limited 2.96 International Freezefish Exports 2.96 Interseas 2.96 ITC Limited, International Business 2.96 ITC Ltd 2.96 Jagadeesh Marine Exports 2.96 Jaya Satya Marine Exports 2.96 Jaya Satya Marine Exports Pvt. Ltd 2.96 Jayalakshmi Sea Foods Private Limited 2.96 Jinny Marine Traders 2.96 Jiya Packagings 2.96 K R M Marine Exports Ltd 2.96 K V Marine Exports 2.96 Kalyan Aqua & Marine Exports India Pvt. Ltd 2.96 Kalyanee Marine 2.96 Kanch Ghar 2.96 Kay Kay Exports 2.96 Kings Marine Products 2.96 KNC Agro Pvt. Ltd 2.96 Koluthara Exports Ltd 2.96 Konark Aquatics & Exports Pvt. Ltd 2.96 Landauer Ltd 2.96 Libran Cold Storages (P) Ltd 2.96 Lighthouse Trade Links Pvt. Ltd 2.96 Magnum Estates Limited 2.96 Magnum Export 2.96 Magnum Sea Foods Limited 2.96 Malabar Arabian Fisheries 2.96 Malnad Exports Pvt. Ltd 2.96 Mangala Marine Exim India Pvt. Ltd 2.96 Mangala Sea Products 2.96 Mangala Seafoods 2.96 Meenaxi Fisheries Pvt. Ltd 2.96 MSC Marine Exporters 2.96 MSRDR Exports 2.96 Munnangi Sea Foods (Pvt) Ltd 2.96 MTR Foods 2.96 N.C. John & Sons (P) Ltd 2.96 Naga Hanuman Fish Packers 2.96 Naik Frozen Foods Private Limited 2.96 Naik Seafoods Ltd 2.96 Navayuga Exports 2.96 Nekkanti Sea Foods Limited 2.96 Nezami Rekha Sea Food Private Limited 2.96 NGR Aqua International 2.96 Nila Sea Foods Pvt. Ltd 2.96 Nine Up Frozen Foods 2.96 Nutrient Marine Foods Limited 2.96 Overseas Marine Export 2.96 Paragon Sea Foods Pvt. Ltd 2.96 Parayil Food Products Pvt. Ltd 2.96 Penver Products Pvt. Ltd 2.96 Pesca Marine Products Pvt. Ltd 2.96 Pijikay International Exports P Ltd 2.96 Pisces Seafood International 2.96 Premier Exports International 2.96 Premier Marine Foods 2.96 Premier Seafoods Exim (P) Ltd 2.96 R V R Marine Products Limited 2.96 Raa Systems Pvt. Ltd 2.96 Raju Exports 2.96 Ram's Assorted Cold Storage Ltd 2.96 Raunaq Ice & Cold Storage 2.96 Raysons Aquatics Pvt. Ltd 2.96 Razban Seafoods Ltd 2.96 RBT Exports 2.96 RDR Exports 2.96 Riviera Exports Pvt. Ltd 2.96 Rohi Marine Private Ltd 2.96 S & S Seafoods 2.96 S. A. Exports 2.96 S Chanchala Combines 2.96 Safa Enterprises 2.96 Sagar Foods 2.96 Sagar Grandhi Exports Private Limited 2.96 Sagar Samrat Seafoods 2.96 Sagarvihar Fisheries Pvt. Ltd 2.96 Sai Marine Exports Pvt. Ltd 2.96 Sai Seafoods 2.96 Sanchita Marine Products Private Limited 2.96 Sandhya Aqua Exports 2.96 Sandhya Aqua Exports Pvt. Ltd 2.96 Sandhya Marines Limited 2.96 Santhi Fisheries & Exports Ltd 2.96 Sarveshwari Exports 2.96 Sawant Food Products 2.96 Sea Foods Private Limited 2.96 Seagold Overseas Pvt. Ltd 2.96 Selvam Exports Private Limited 2.96 Sharat Industries Ltd 2.96 Shimpo Exports Pvt. Ltd 2.96 Shippers Exports 2.96 Shiva Frozen Food Exp. Pvt. Ltd 2.96 Shree Datt Aquaculture Farms Pvt. Ltd 2.96 Shroff Processed Food & Cold Storage P Ltd 2.96 Silver Seafood 2.96 Sita Marine Exports 2.96 Sowmya Agri Marine Exports 2.96 Sprint Exports Pvt. Ltd 2.96 Sri Chandrakantha Marine Exports 2.96 Sri Sakkthi Cold Storage 2.96 Sri Sakthi Marine Products P Ltd 2.96 Sri Satya Marine Exports 2.96 Sri Venkata Padmavathi Marine Foods Pvt. Ltd 2.96 Srikanth International 2.96 SSF Ltd 2.96 Star Agro Marine Exports Private Limited 2.96 Star Organic Foods Incorporated 2.96 Sun-Bio Technology Ltd 2.96 Supran Exim Private Limited 2.96 Suryamitra Exim Pvt. Ltd 2.96 Suvarna Rekha Exports Private Limited 2.96 Suvarna Rekha Marines P Ltd 2.96 TBR Exports Pvt Ltd 2.96 Teekay Marine P. Ltd 2.96 Tejaswani Enterprises 2.96 The Waterbase Ltd 2.96 Triveni Fisheries P Ltd 2.96 Uniloids Biosciences Private Limited 2.96 Uniroyal Marine Exports Ltd 2.96 Unitriveni Overseas 2.96 V.S Exim Pvt Ltd 2.96 Vasista Marine 2.96 Veejay Impex 2.96 Victoria Marine & Agro Exports Ltd 2.96 Vinner Marine 2.96 Vishal Exports 2.96 Wellcome Fisheries Limited 2.96 West Coast Frozen Foods Private Limited 2.96 Z A Sea Foods Pvt. Ltd 2.96

    5 On December 2, 2014, Premier Marine Products Private Limited was found to be the successor-in-interest to Premier Marine Products. See Notice of Final Results of Antidumping Duty Changed Circumstances Review: Certain Frozen Warmwater Shrimp from India, 79 FR 71384 (December 2, 2014).

    6 Shrimp produced and exported by Devi Sea Foods Limited (Devi) was excluded from this order effective February 1, 2009. See Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review, Partial Rescission of Review, and Notice of Revocation of Order in Part, 75 FR 41813, 41814 (July 19, 2010). However, shrimp produced by other Indian producers and exported by Devi remain subject to the order. Thus, this administrative review with respect to Devi covers only shrimp which was produced in India by other companies and exported by Devi.

    Assessment Rates

    The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.

    Pursuant to 19 CFR 351.212(b)(1), because Devi Fisheries and Falcon reported the entered value for all of their U.S. sales, we calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the sales for which entered value was reported. To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad valorem ratios based on the entered value.

    For the companies which were not selected for individual examination, we used as the assessment rate the cash deposit rate assigned to these exporters, in accordance with our practice.7

    7See, e.g., Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty Administrative Review, 79 FR 51309 (August 28, 2014).

    The Department's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by Devi Fisheries or Falcon for which these companies did not know that the merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this practice, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

    The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent (de minimis within the meaning of 19 CFR 351.106(c)(1)), the cash deposit will be zero; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a previous review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 10.17 percent, the all-others rate established in the LTFV investigation.8 These deposit requirements, when imposed, shall remain in effect until further notice.

    8See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from India, 70 FR 5147, 5148 (Febrary 1, 2005).

    Notification to Importers

    This notice serves as the only reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Administrative Protective Order

    In accordance with 19 CFR 351.305(a)(3), this notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213(h).

    Dated: September 2, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix—List of Topics Discussed in the Issues and Decision Memorandum Summary Background Scope of the Order Discussion of the Issues Comment 1: Legal Authority to Consider an Alternative Comparison Method in an Administrative Review Comment 2: Withdrawal of the Regulatory Provisions Governing Targeted Dumping in LTFV Investigations Comment 3: Differential Pricing Analysis and the Administrative Procedures Act Comment 4: Differential Pricing Analysis: Identification of a Pattern of Prices that Differ Significantly Comment 5: Differential Pricing Analysis: Whether the Average-to-Average (A-to-A) Method Can Account for Such Differences Comment 6: Differential Pricing Analysis: The Impact of “Zeroing” Comment 7: Differential Pricing Analysis: Thresholds in the “Ratio Test” Comment 8: Other Arguments Related to Differential Pricing Analysis Comment 9: Whether to Include Certain Costs Incurred by KR Enterprises in Falcon's Reported Cost of Manufacturing Recommendation
    [FR Doc. 2015-22869 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Request for Comments On World Health Organization Pandemic Influenza Preparedness Framework AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice and Request for Comments.

    SUMMARY:

    The International Trade Administration invites submission of comments from the public and relevant industries on influenza surveillance and response, related to the implementation of the World Health Organization (WHO) Pandemic Influenza Preparedness Framework (PIP-FW) (http://apps.who.int/gb/ebwha/pdf_files/WHA64/A64_8-en.pdf). Comments will be used to support the five-year review of the WHO PIP-FW in 2016.

    DATES:

    Written comments must be submitted on or before October 7, 2015. Comments should be no more than 15 pages. Business-confidential information should be clearly identified as such.

    ADDRESSES:

    Submissions should be made via the Internet at www.regulations.gov docket number ITA-2015-0003. For alternatives to on-line submissions please contact Jennifer Boger at (202) 482-3360. The public is strongly encouraged to file submissions electronically rather than by facsimile or mail.

    FOR FURTHER INFORMATION CONTACT:

    Questions regarding the submission of comments should be directed to Jennifer Boger at (202) 482-3360, [email protected], or Bijou Mgbojikwe at (202) 482-1722, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: In 2007, the Sixtieth World Health Assembly passed a resolution calling on the Director-General to convene an intergovernmental meeting to develop mechanisms to ensure the continued sharing of potential pandemic influenza viruses, and the fair and equitable sharing of benefits arising from such sample sharing. For four years, WHO member states met as an Intergovernmental Mechanism, as well as informally, to negotiate the Pandemic Influenza Preparedness Framework (PIP-FW). The PIP-FW came into effect on May 24, 2011 when it was unanimously adopted by the Sixty-fourth World Health Assembly.

    The key goals of PIP are to improve and strengthen global influenza pandemic preparedness by:

    (1) Ensuring the global sharing of influenza viruses with human pandemic potential for continuous global monitoring and assessment of risks, and for the development of safe and effective countermeasures. The PIP-FW provides a transparent mechanism for sharing virus samples, based on two Standard Material Transfer Agreements (SMTAs) that specify the conditions for samples passed within and outside of the Global Influenza Surveillance and Response System (GISRS), and a traceability mechanism to monitor the movement of samples.

    (2) Increasing countries' access to vaccines and other pandemic related resources. Two innovative and complementary benefit-sharing mechanisms pool monetary and in-kind contributions from entities that use the GISRS to enhance pandemic influenza preparedness and response capacity for countries in need and at risk of pandemic influenza: The annual partnership contribution and the SMTA-2.

    At the core of the PIP-FW is a robust Global Influenza Surveillance and Response System (GISRS, previously called the Global Influenza Surveillance Network or GISN). Section 7.4.2 of the PIP-FW provides that: “The Framework and its Annexes will be reviewed by 2016 with a view to proposing revisions reflecting development as appropriate, to the World Health Assembly in 2017, through the Executive Board.” It is in anticipation of the 2016 review that the U.S. Department of Commerce seeks comments on the following points:

    (1) Experiences, best practices, opportunities, and challenges in advancing the PIP-FW over the past five years.

    (2) Experiences relating to the status and process of concluding Standard Material Transfer Agreements (SMTA2).

    (3) Use of partnership contributions and WHO efforts to strengthen the GISRS and overall global preparedness and response capability/capacity.

    (4) How changing technology has impacted or has the ability to impact the existing PIP-FW.

    (5) Other matters related to prevention, planning and response whose resolution will be integral for the effective operation of a global influenza pandemic response.

    The facts and information obtained from written submissions will be used to inform the participation of the U.S. Department of Commerce in the interagency process to prepare for United States participation for the five-year 2016 review of the PIP-FW. Upon receipt of the written submission, representatives from the U.S. Department of Commerce will consider them and share them, as needed, with other interested U.S. Government agencies and departments engaging in the five-year review process.

    The Department of Commerce invites comments from civil society organizations as well as pharmaceutical and medical technology industries and other interested members of the public on a number of issues regarding pandemic influenza preparedness and response. Entities making submissions may be contacted for further information or explanation and, in some cases, meetings with submitters may be requested.

    Dated: September 3, 2015. Jennifer Boger, Health Team Director, Office of Health and Information Technologies.
    [FR Doc. 2015-22730 Filed 9-9-15; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology Proposed Information Collection; Comment Request; Hollings Manufacturing Extension Partnership (HMEP) Program Application Requirements AGENCY:

    NIST, Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before November 9, 2015.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Diane Henderson, Manufacturing Extension Partnership, 100 Bureau Drive, Mail Stop 4800, 301-975-5105, [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    The National Institute of Standards and Technology's (NIST) Hollings Manufacturing Extension Partnership (MEP) works with small and medium-sized U.S. manufacturers to help them create and retain jobs, increase profits, and save time and money. The nationwide network provides a variety of services, from innovation strategies to process improvements to sustainable manufacturing, supply chain and technology acceleration services. MEP centers also work with partners at the State and Federal levels on programs that put manufacturers in position to develop new customers, expand into new markets and create new products.

    As a program of the U.S. Department of Commerce, MEP offers a range of effective resources to help manufacturers identify opportunities that will accelerate and strengthen their growth and competitiveness in the global marketplace.

    MEP is a nationwide network of more than 1,200 technical experts—located in every State—serving as trusted business advisors focused on transforming U.S. manufacturers to compete globally, supporting supply chain integration, and providing access to technology for improved productivity. MEP is built around manufacturing extension centers locally positioned throughout the 50 States and Puerto Rico. MEP Centers are a diverse network of State, non-profit university-based, and other non-profit organizations, offering products and services that address the critical needs of their local manufacturers.

    Each MEP Center works directly with area manufacturers to provide expertise and services tailored to their most critical needs, ranging from process improvement and workforce development to business practices and technology transfer. Additionally, MEP Centers connect manufacturers with government and trade associations, universities and research laboratories, and a host of other public and private resources to help them realize individual business goals.

    Through local and national resources, MEP Centers have helped thousands of manufacturers reinvent themselves, increase profits, create jobs and establish a foundation for long-term business growth and productivity.

    This request is for the information collection requirements associated with submission of proposals for NIST MEP funding. The intent of the collection is to meet statutory requirements for NIST MEP, as well as compliance with 15 U.S.C. 278k, as implemented in 15 CFR part 290.

    II. Method of Collection

    Electronically via www.grants.gov.

    III. Data

    OMB Control Number: 0693-0056.

    Form Number(s): None.

    Type of Review: Regular Revision of a currently approved information collection.

    Affected Public: U.S.-based nonprofit institution or organization. Nonprofit institutions include public and private nonprofit organizations, nonprofit or State colleges and universities, public or nonprofit community and technical colleges, and State, local or Tribal governments.

    Estimated Number of Respondents: 24.

    Estimated Time per Response: 112 hrs.

    Estimated Total Annual Burden Hours: 2,688 hours.

    Estimated Total Annual Cost to Public: 0.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 4, 2015. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer.
    [FR Doc. 2015-22788 Filed 9-9-15; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Cost-Earnings Surveys of American Samoa Longline Fishery AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before November 9, 2015.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Minling Pan, National Marine Fisheries Service, (808) 725-5349 or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for a new information collection.

    The National Marine Fisheries Service (NMFS) proposes to collect information about annual base fishing expenses in the American Samoa longline fishery with which to conduct economic analyses that will improve fishery management in those fisheries; satisfy NMFS' legal mandates under Executive Order 12866, the Magnuson-Steven Fishery Conservation and Management Act (U.S.C. 1801 et seq.), the Regulatory Flexibility Act, the Endangered Species Act, and the National Environmental Policy Act; and quantify achievement of the performances measures in the NMFS Strategic Operating Plans. Respondents will include longline fishers in American Samoa and their participation in the economic data collection will be voluntary.

    II. Method of Collection

    The economic surveys will be conducted via in-person interviews with fishing vessel owners and operators.

    III. Data

    OMB Control Number: 0648-xxxx.

    Form Number(s): None.

    Type of Review: Regular (request for a new information collection).

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 22.

    Estimated Time per Response: 30 minutes.

    Estimated Total Annual Burden Hours: 11.

    Estimated Total Annual Cost to Public: $0 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 4, 2015. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2015-22832 Filed 9-9-15; 8:45 am] BILLING CODE 3520-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE166 Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits AGENCY:

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

    ACTION:

    Notice; request for comments.

    SUMMARY:

    The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrants further consideration. This Exempted Fishing Permit would allow four commercial fishing vessels to fish outside of the limited access sea scallop regulations in support of study investigating the effect different dredge tow cable scope ratios have on dredge pitch and catch rates using the Turtle Deflector Dredge and Low Profile Dredge designs.

    Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.

    DATES:

    Comments must be received on or before September 25, 2015.

    ADDRESSES:

    You may submit written comments by any of the following methods:

    Email: [email protected] Include in the subject line “DA15-065 CFF Dredge Design Study EFP.”

    Mail: John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “DA15-065 CFF Dredge Design Study EFP.”

    FOR FURTHER INFORMATION CONTACT:

    Shannah Jaburek, Fisheries Management Specialist, 978-282-8456.

    SUPPLEMENTARY INFORMATION:

    NOAA has preliminarily awarded the Coonamesset Farm Foundation (CFF) a grant through the 2015 Saltonstall Kennedy grant program, in support of a project titled “Improving an Ecosystem Friendly Scallop Dredge.” To conduct this research, CFF submitted a complete application for an EFP on August 6, 2015. The project would look at the effect different scope ratios have on dredge pitch and catch rates using the Turtle Deflector Dredge (TDD) and Low Profile Dredge (LPD) designs. The project would also utilize an underwater camera attached to the dredge frames to capture fish dredge interactions.

    CFF is requesting exemptions that would allow four commercial fishing vessels be exempt from the Atlantic sea scallop days-at-sea (DAS) allocations at 50 CFR 648.53(b); crew size restrictions at § 648.51(c); and rotational closed area exemptions for Closed Area I at § 648.58(a), Closed Area II at § 648.58(b), and Nantucket Lightship at § 648.58(c). It would also exempt participating vessels from the Atlantic sea scallop observer program requirements at § 648.11(g) and from possession limits and minimum size requirements specified in 50 CFR part 648, subsections B and D through O, for sampling purposes only. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.

    Four vessels would conduct scallop dredging in October 2015-April 2016, on four 7-day trips, for a total of 28 DAS. Each trip would complete approximately 50 tows per trip for an overall total of 200 tows for the project. Trips would take place in the open areas of southern New England and Georges Bank as well as in Georges Bank scallop access areas that are closed. Trips would be centralized around areas with high yellowtail and winter flounder bycatch and in areas that contain a wide range of scallop sizes to examine changes in size selectivity due to dredge design and wire scope.

    All tows would be conducted in tandem using one TDD and one LPD for a duration of 60 minutes with a tow speed range of 4-5.5 knots. Both dredges would be 15 feet (4.57 meters) in width using 4-inch (10.16 cm) rings, and would be rigged with a 7-row apron, and twine top hanging ratio of 2:1. Both dredges would be equipped with a regulation turtle chain mat for any tows west of 71° W. longitude. The LPD dredge in comparison to the TDD dredge has a reduced frame angle from 45° to 22.5°, an extended shoe from 15 inches (38.10 cm) to 22 inches (55.88 cm), and a reduced frame height from 15 inches (38.10) to 9.5 inches (24.13 cm). Each tow pair would be conducted in a straight line varying between long (4:1) and short (3:1) scope ratios in an AB-BA alternating pattern. Scope is the ratio of deployed towing cable to ocean depth.

    To film finfish interactions, both dredge frames would have an underwater camera attached to the outer frame bars facing the depressor plate. Each interaction would be recorded using Observer XT computer software and would fall into three categories: Horizontal escape where the fish swims perpendicular to the dredge; vertical escape where the fish swims over the frame; and overcome/capture where the fish passes under the cutting bar or through the openings between the depressor plate and cutting bar. Filming will help test the hypothesis that the LPD frame aids in flatfish escapement and reduces interaction time with the dredge potentially, reducing incidental mortality rates.

    For all tows, the sea scallop catch would be counted into baskets and weighed. One basket from each dredge would be randomly selected and the scallops would be measured in 5-mm increments to determine size selectivity. Finfish catch would be sorted by species then counted, weighed, and measured in 1-mm increments. Depending on the volume of scallops and finfish captured, the catch would be subsampled as necessary. No catch would be retained for longer than needed to conduct sampling and no catch would be landed for sale.

    Project Catch Estimates Species lbs mt Scallops 110,231 50.00 Yellowtail 2,000 0.91 Winter Flounder 500 0.23 Windowpane Flounder 3,500 1.59 Monkfish 4,500 2.04 Summer Flounder 150 0.007 Barndoor Skate 500 0.23 NE Skate Complex 75,000 34.02 Atlantic Cod 50 0.02 Haddock 75 0.03 Silver/Offshore Hake 125 0.05 Unclassified hakes 100 0.06

    CFF needs these exemptions to allow them to conduct experimental dredge towing without being charged DAS, as well as deploy gear in access areas that are currently closed to scallop fishing. Participating vessels need crew size waivers to accommodate science personnel and possession waivers will enable them to conduct finfish sampling activities.

    If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 4, 2015. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-22834 Filed 9-9-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Reporting Requirements for Commercial Fisheries Authorization Under Section 118 of the Marine Mammal Protection Act AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before November 9, 2015.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Lisa White, (301) 427-8402 or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for an extension of a currently approved information collection.

    Reporting injury to and/or mortalities of marine mammals is mandated under Section 118 of the Marine Mammal Protection Act. This information is required to determine the impacts of commercial fishing on marine mammal populations. This information is also used to categorize commercial fisheries into Categories I, II, or III. Participants in the first two categories must be authorized to take marine mammals, while those in Category III are exempt from that requirement. All categories must report injuries or mortalities on a National Marine Fisheries Service form.

    II. Method of Collection

    Respondents have a choice of either electronic or paper forms. Methods of submittal include online forms, email of electronic or scanned forms, and mail and facsimile transmission of paper forms.

    III. Data

    OMB Control Number: 0648-0292.

    Form Number(s): None.

    Type of Review: Regular submission (extension of currently approved collection).

    Affected Public: Business or other for-profit organizations; Individuals or households.

    Estimated Number of Respondents: 200.

    Estimated Time per Response: 15 minutes.

    Estimated Total Annual Burden Hours: 50.

    Estimated Total Annual Cost to Public: $0 in recordkeeping/reporting costs and application fees.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 3, 2015. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2015-22709 Filed 9-9-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE102 Schedules for Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops AGENCY:

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

    ACTION:

    Notice of public workshops.

    SUMMARY:

    Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in October, November, and December of 2015. Certain fishermen and shark dealers are required to attend a workshop to meet regulatory requirements and to maintain valid permits. Specifically, the Atlantic Shark Identification Workshop is mandatory for all federally permitted Atlantic shark dealers. The Protected Species Safe Handling, Release, and Identification Workshop is mandatory for vessel owners and operators who use bottom longline, pelagic longline, or gillnet gear, and who have also been issued shark or swordfish limited access permits. Additional free workshops will be conducted during 2016 and will be announced in a future notice.

    DATES:

    The Atlantic Shark Identification Workshops will be held on October 8, November 12, and December 3, 2015.

    The Protected Species Safe Handling, Release, and Identification Workshops will be held on October 7, October 21, November 4, November 18, December 2, and December 16, 2015.

    See SUPPLEMENTARY INFORMATION for further details.

    ADDRESSES:

    The Atlantic Shark Identification Workshops will be held in Somerville, MA; Mount Pleasant, SC; and Largo, FL.

    The Protected Species Safe Handling, Release, and Identification Workshops will be held in Panama City, FL; Warwick, RI; Wilmington, NC; Largo, FL; Kenner, LA; and Ronkonkoma, NY.

    See SUPPLEMENTARY INFORMATION for further details on workshop locations.

    FOR FURTHER INFORMATION CONTACT:

    Rick Pearson by phone: (727) 824-5399, or by fax: (727) 824-5398.

    SUPPLEMENTARY INFORMATION:

    The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at: http://www.nmfs.noaa.gov/sfa/hms/workshops/.

    Atlantic Shark Identification Workshops

    Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit that first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 113 free Atlantic Shark Identification Workshops have been conducted since January 2007.

    Currently, permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks. Only one certificate will be issued to each proxy. A proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and who fills out dealer reports. Atlantic shark dealers are prohibited from renewing a Federal shark dealer permit unless a valid Atlantic Shark Identification Workshop certificate for each business location that first receives Atlantic sharks has been submitted with the permit renewal application. Additionally, trucks or other conveyances that are extensions of a dealer's place of business must possess a copy of a valid dealer or proxy Atlantic Shark Identification Workshop certificate.

    Workshop Dates, Times, and Locations 1. October 8, 2015, 12 p.m.-4 p.m., La Quinta Inn, 23 Cummings Street, Somerville, MA 02145. 2. November 12, 2015, 12 p.m.-4 p.m., Hampton Inn, 1104 Isle of Palms Connector, Mt. Pleasant, SC 29464. 3. December 3, 2015, 12 p.m.-4 p.m., Hampton Inn, 100 East Bay Drive, Largo, FL 33770. Registration

    To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at [email protected] or at (386) 852-8588.

    Registration Materials

    To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items to the workshop:

    • Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.

    • Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the appropriate valid permit, and proof of identification.

    Workshop Objectives

    The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer reporting form and increase the accuracy of species-specific dealer-reported information. Reducing the number of unknown and improperly identified sharks will improve quota monitoring and the data used in stock assessments. These workshops will train shark dealer permit holders or their proxies to properly identify Atlantic shark carcasses.

    Protected Species Safe Handling, Release, and Identification Workshops

    Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally, new shark and swordfish limited-access permit applicants who intend to fish with longline or gillnet gear must attend a Protected Species Safe Handling, Release, and Identification Workshop and submit a copy of their workshop certificate before either of the permits will be issued. Approximately 214 free Protected Species Safe Handling, Release, and Identification Workshops have been conducted since 2006.

    In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. Vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses longline or gillnet gear.

    Workshop Dates, Times, and Locations 1. October 7, 2015, 9 a.m.-5 p.m., Hilton Garden Inn, 1101 North Highway 231, Panama City, FL 32405. 2. October 21, 2015, 9 a.m.-5 p.m., Hilton Garden Inn, 1 Thurber Street, Warwick, RI 02886. 3. November 4, 2015, 9 a.m.-5 p.m., Hilton Garden Inn, 6745 Rock Spring Road, Wilmington, NC 28405. 4. November 18, 2015, 9 a.m.-5 p.m., Holiday Inn Express, 210 Seminole Boulevard, Largo, FL 33770. 5. December 2, 2015, 9 a.m.-5 p.m., Hilton Hotel, 901 Airline Drive, Kenner, LA 70068. 6. December 16, 2015, 9 a.m.-5 p.m., Hilton Garden Inn, 3485 Veterans Memorial Highway, Ronkonkoma, NY 11779. Registration

    To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682-0158.

    Registration Materials

    To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items with them to the workshop:

    • Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.

    • Representatives of a business-owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.

    • Vessel operators must bring proof of identification.

    Workshop Objectives

    The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which may prevent additional regulations on these fisheries in the future.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 4, 2015. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-22836 Filed 9-9-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Access-Point Angler Intercept Survey (APAIS) AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before November 9, 2015.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Tom Sminkey, Ph.D., (301) 427-8177 or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a currently approved information collection.

    Marine recreational anglers are surveyed to collect catch and effort data, fish biology data, and angler socioeconomic characteristics. These data are required to carry out provisions of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), as amended, regarding conservation and management of fishery resources.

    Marine recreational fishing catch and effort data are collected through a combination of mail surveys, telephone surveys and on-site intercept surveys with recreational anglers. Amendments to the Magnuson-Stevens Fishery Conservation and Management Act (MSA) require the development of an improved data collection program for recreational fisheries. To partially meet these requirements, NOAA Fisheries designed and implemented a new Access-Point Angler Intercept Survey (APAIS) in 2013 to ensure better coverage and representation of recreational fishing activity.

    The APAIS intercepts marine recreational fishers at public-access sites in coastal counties from Maine to Louisiana, Hawaii, and Puerto Rico, to obtain information about the just-completed day's fishing activity. Respondents are asked about the time and type of fishing, the angler's avidity and residence location, and details of any catch of finfish. Species identification, number, and size are collected for any available landed catch. Data collected from the APAIS are used to estimate the catch per angler of recreational saltwater fishers. These APAIS estimates are combined with estimates derived from independent but complementary surveys of fishing effort, the Coastal Household Telephone Survey and the For-Hire Survey, to estimate total, state-level fishing catch, by species, and participation. These estimates are used in the development, implementation, and monitoring of fishery management programs by the NMFS, regional fishery management councils, interstate marine fisheries commissions, and state fishery agencies.

    II. Method of Collection

    Information will be collected through onsite in-person interviews.

    III. Data

    OMB Number: 0648-0659.

    Form Number: None.

    Type of Review: Regular submission (extension of a currently approved information collection).

    Affected Public: Individuals or households.

    Estimated Number of Respondents: 100,000.

    Estimated Time per Response: 5 minutes for intercepted anglers.

    Estimated Total Annual Burden Hours: 8,333.

    Estimated Total Annual Cost to Public: $0 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 3, 2015. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2015-22707 Filed 9-9-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD977 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Mukilteo Multimodal Project Tank Farm Pier Removal Project AGENCY:

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

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we, NMFS, have issued an incidental harassment authorization (IHA) to the Washington State Department of Transportation Ferries System (WSF) to harass, by Level B harassment only, small numbers of eight marine mammal species incidental to construction work associated with the Mukilteo Ferry Terminal replacement project in Mukilteo, Snohomish County, Washington.

    DATES:

    This authorization is effective from September 1, 2015 through August 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Availability

    An electronic copy of WSF's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “ . . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    Summary of Request

    On November 6, 2014, WSF submitted a request to NOAA requesting an IHA for the possible harassment of small numbers of eight marine mammal species incidental to construction work associated with the Mukilteo Ferry Terminal replacement project in Mukilteo, Snohomish County, Washington. The new terminal will be located to the east of the existing location at the site of the former U.S. Department of Defense Fuel Supply Point facility, known as the Tank Farm property, which includes a large pier extending into Possession Sound. Completion of the entire project will occur over 4 consecutive years. WSF plans to submit an IHA request for each consecutive year of construction. WSF previously received an IHA on July 25, 2014 (79 FR 43424) which was active from September 1, 2014 through August 31, 2015. However, the project was delayed for one year and did not begin until August 1, 2015. The IHA application currently under review would cover work from September 1, 2015 through August 31, 2016. Due to NMFS, U.S. Fish and Wildlife Service (USFWS), and Washington State Department of Fish and Wildlife (WDFW) in-water work timing restrictions to protect salmonids listed under the Endangered Species Act (ESA), planned WSF in-water construction is limited each year to August 1 through February 15. For removal of the Tank Farm Pier, which is the first stage of the project, in-water construction will take place between August 1, 2015 and February 15, 2016; and continue between August 1, 2016 and February 15, 2017, if pier removal is not completed during the 2015/16 work window. A new MMPA IHA application will be submitted for subsequent construction years for this project. Species that may be exposed to Level B harassment include Pacific harbor seal (Phoca vitulina richardsi), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), killer whale (Orcinus orca), gray whale (Eschrichtius robustus), and humpback whale (Megaptera novaeangliae)

    Description of the Specified Activity Overview

    WSF is seeking an IHA for the first year of construction work associated with the Mukilteo Ferry Terminal replacement project in Mukilteo, Snohomish County, Washington. The IHA covers the initial phase of the project which is the demolition and removal of the Mukilteo Tank Farm Pier. Piles will be removed with a vibratory hammer or by direct pull using a chain wrapped around the pile.

    Dates and Duration

    WSF previously received an IHA on July 25, 2014 (79 FR 43424) which was active from September 1, 2014 through August 31, 2015. However, the project was delayed for almost a full year and did not begin until August 1, 2015. The IHA application currently under review would cover work from September 1, 2015 through August 31, 2016. All existing pier demolition and pile removal work will be done under these two successive permits. WSF in-water construction is limited each year to August 1 through February 15. For removal of the Tank Farm Pier, in-water construction is planned to take place between August 1, 2015 and February 15, 2016; and continue in August 1, 2016 to February 15, 2017, if pier removal and dredging is not completed during the 2015/16 work window.

    Specific Geographic Region

    The Mukilteo Tank Farm is located within the city limits of Mukilteo and Everett, Snohomish County, Washington. The property is located on the shore of Possession Sound, an embayment of the inland marine waters of Puget Sound.

    Detailed Description of Activities

    We provided a description of the proposed action in our Federal Register notice announcing the proposed authorization (80 FR 43720; July 23, 2015). Please refer to that document; we provide only summary information here.

    The Mukilteo Tank Farm Pier, which has not been used for fuel transfers since the late 1970s, covers approximately 138,080 ft2 (3.17 acres) over-water and contains approximately 3,900 12-inch diameter creosote-treated piles. Demolition of the pier will remove approximately 7,300 tons of creosote-treated timber from the aquatic environment. Demolition will take approximately ten months over two in-water work windows. Removal of the pier will occur from land and from a barge containing a derrick, crane and other necessary equipment. Piles will be removed with a vibratory hammer or by direct pull using a chain wrapped around the pile. If piles are so deteriorated they cannot be removed using either the vibratory or direct pull method, the operator will use a clamshell to pull the piles from below the mudline, or cut at or just below the mudline (up to one foot) using a hydraulic saw. Pile removal and demolition of creosote-treated timber elements of the Tank Farm Pier will take place between August 1 and February 15 and will occur in water depths between 0 and -30 feet mean lower-low water. Noise produced by the proposed vibratory pile extraction may impact marine mammals. Direct pull and clamshell removal are not expected to exceed noise levels that would injure or harass marine mammals.

    Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the Federal Register on July 23, 2015 (80 FR 43720). During the 30-day public comment period, the Marine Mammal Commission (Commission) and Mystic Sea Charters (MSC) each submitted letters. These letters are available on the Internet at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. All comments specific to the WSF application that address the statutory and regulatory requirements or findings NMFS must make to issue an IHA are addressed in this section of the Federal Register notice.

    Comment 1: The Commission noted that NMFS has, at times, included a much abbreviated timeframe under which it considers public comments prior to issuing authorizations. The deadline for comments on the proposed incidental harassment authorization is August 24 2015, while the proposed incidental harassment authorization would be effective starting on September 1, 2015. The Commission expressed concerned that the time between the close of the comment period and the proposed issuance date (6 business days) does not provide adequate opportunity for NMFS to consider, provide responses to, and incorporate any changes prompted by comments from the Commission and the public. The Commission recommends that NMFS allow sufficient time between the close of the comment period and the issuance of an incidental harassment authorization for NMFS to analyze, consider, and respond fully to comments received and incorporate recommended changes, as appropriate.

    Response 1: The amount of time needed to fully consider comments on a proposed IHA depends on the volume and complexity of comments we receive. In this case, we believe there was sufficient time to consider and respond to the comments we received.

    Comment 2: MSC commented that the areas affected by the proposed project should require constant monitoring from both land and water.

    Response 2: NMFS has worked with WSF to develop a monitoring plan requiring two full-time observers stationed at different locations. This scenario will provide observers with a comprehensive view of the entire zone of influence. However, if weather precludes adequate land-based observations then boat-based monitoring will be employed.

    Comment 3: MSC recommended that potential impacts to wildlife other than marine mammals should also be evaluated and suggested for consideration several avian species known to occur in the area.

    Response 3: NMFS authority under section 101(a)(5)(D) of the MMPA is limited to evaluating and minimizing impacts on marine mammals. Other statutes administered primarily by the U.S. Fish and Wildlife (FWS) have been enacted to protect and conserve a wide range of avian species. Loons and eagles are both afforded protection under the Migratory Bird Treaty Act. Eagles are subject to additional protection under the Bald and Golden Eagle Protection Act. While marbled murrelets are listed as threatened under the Endangered Species Act, FWS issued a Biological Opinion on July 8, 2013 which concluded with a “may affect, not likely to adversely affect” determination for marbled murrelets.

    Comment 4: MSC expressed concern about the potential impacts of the project on harbor porpoises. MSC indicated that they have observed schools of harbor porpoises jumping into the air to escape loud sounds.

    Response 4: As part of the IHA issuance process, NMFS reviewed the best available information to assess potential effects of the activity on harbor porpoises and determined that impacts will be negligible. Accordingly, NMFS has authorized the take of 1,120 harbor porpoises by Level B harassment under this IHA. The conditions of this IHA include measures to avoid injury and minimize disturbance to harbor porpoises and seven other marine mammal species.

    Description of Marine Mammals in the Area of the Specified Activity

    There are eight marine mammal species known to occur in the vicinity of the project which may be subjected to Level B harassment. These include the Pacific harbor seal, California sea lion, Steller sea lion, harbor porpoise, Dall's porpoise, killer (southern resident and transient), gray whale, and humpback whale.

    We have reviewed WSF's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Section 3 of WSF's application as well as the proposed incidental harassment authorization published in the Federal Register (80 FR 43720) instead of reprinting the information here. Please also refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts which provide information regarding the biology and behavior of the marine resources that occur in the vicinity of the Mukilteo project area. We provided additional information for the potentially affected stocks, including details of stock-wide status, trends, and threats, in our Federal Register notice of proposed authorization (80 FR 43720).

    Table 1 lists marine mammal stocks that could occur in the vicinity of the Mukilteo project that may be subject to Level B harassment and summarizes key information regarding stock status and abundance. Please see NMFS' Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of these stocks' status and abundance.

    Table 1—List of Marine Species Under NMFS Jurisdiction That Occur in the Vicinity of the Mukilteo Tank Farm Pier Project Species ESA status MMPA status Timing of occurrence Frequency of
  • occurrence
  • Harbor Seal Unlisted Non-depleted Year-round Common. California Sea Lion Unlisted Non-depleted August-April Common. Steller Sea Lion Delisted Strategic/Depleted October-May Rare. Harbor Porpoise Unlisted Non-depleted Year-round Occasional. Dall's Porpoise Unlisted Non-depleted Year-round (more common in winter) Occasional. Killer Whale (Southern Resident) Endangered Strategic/Depleted October-March Occasional. Killer Whale (Transient) Unlisted Strategic/Depleted March-May (intermittently year-round) Occasional. Gray Whale Delisted Non-depleted January-May Occasional. Humpback Whale Endangered Strategic/Depleted April-June Occasional.
    Potential Effects of the Specified Activity on Marine Mammals

    The Federal Register notice of proposed authorization (80 FR 43720), incorporated here by reference, provides a general background on sound relevant to the specified activity as well as a detailed description of marine mammal hearing and of the potential effects of these construction activities on marine mammals. That information has not changed.

    Anticipated Effects on Habitat

    The Federal Register notice of proposed authorization (80 FR 43720), incorporated here by reference, provides information on potential impacts to habitat. In summary, the project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences for individual marine mammals or their populations. Removal of the creosote-treated wood piles from the marine environment will result in temporary and localized sediment re-suspension of some of the contaminants associated with creosote, such as polycyclic aromatic hydrocarbons. However, the long-term result is an improvement in water and sediment quality. The net impact is a benefit to marine organisms, especially toothed whales and pinnipeds that are high on the food chain and bioaccumulate these toxins.

    Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses.

    Measurements from similar pile driving events were coupled with practical spreading loss to estimate zones of influence (ZOI; see “Estimated Take by Incidental Harassment”). ZOIs are often used to establish a mitigation zone around each pile (when deemed practicable) to prevent Level A harassment to marine mammals, and also provide estimates of the areas within which Level B harassment might occur. ZOIs may vary between different diameter piles and types of installation methods. WSF will employ the following mitigation measures:

    (a) Conduct briefings between construction supervisors and crews and marine mammal monitoring teams prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    (b) For in-water heavy machinery work other than pile driving (using, e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location or (2) positioning of the pile on the substrate via a crane (i.e., stabbing the pile).

    Monitoring and Shutdown for Pile Driving

    The following measures apply to WSF's mitigation through shutdown and disturbance:

    Shutdown Zone—For all pile driving activities, WSF will establish a shutdown zone. Shutdown zones are typically used to contain the area in which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria for cetaceans and pinnipeds, respectively, with the purpose being to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. For vibratory driving, WSF's activities are not expected to produce sound at or above the 180 dB rms injury criterion. WSF would, however, implement a minimum shutdown zone of 10 m radius for all marine mammals around all vibratory extraction activity. This precautionary measure is intended to further reduce the unlikely possibility of injury from direct physical interaction with construction operations.

    Disturbance Zone Monitoring—WSF will establish disturbance zones corresponding to the areas in which SPLs equal or exceed 122 dB rms (Level B harassment threshold for continuous sound, a