Federal Register Vol. 80, No.188,

Federal Register Volume 80, Issue 188 (September 29, 2015)

Page Range58335-58572
FR Document

80_FR_188
Current View
Page and SubjectPDF
80 FR 58569 - Gold Star Mother's and Family's Day, 2015PDF
80 FR 58417 - RESTORE Act Spill Impact Component AllocationPDF
80 FR 58528 - Sunshine Act MeetingPDF
80 FR 58500 - Notice of Realty Action: Proposed Non-Competitive (Direct) Sale of Public Land in Beaver County, UTPDF
80 FR 58498 - Office for Interoperability and Compatibility Seeks Nominations for the Project 25 Compliance Assessment Program (P25 CAP) Advisory PanelPDF
80 FR 58464 - Foreign-Trade Zone 149-Freeport, Texas: Application for Expansion Under Alternative Site FrameworkPDF
80 FR 58485 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
80 FR 58475 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
80 FR 58525 - New Postal ProductPDF
80 FR 58466 - Marine Fisheries Advisory Committee MeetingPDF
80 FR 58474 - Agency Information Collection Activities: Comment RequestPDF
80 FR 58493 - Prospective Intent To Grant Start-Up Exclusive Patent License: Real-Time PCR Point Mutation Assays for Detecting HIV-1 Resistance to Antiviral DrugsPDF
80 FR 58485 - Epi-Centers for the Prevention of Healthcare-Associated Infections, Antimicrobial Resistance and Adverse EventsPDF
80 FR 58502 - Notice of National Petroleum Reserve in Alaska Oil and Gas Lease Sale 2015 and Notice of Availability of the Detailed Statement of Sale for Oil and Gas Lease Sale 2015 in the National Petroleum Reserve in AlaskaPDF
80 FR 58470 - Submission for OMB Review; Comment RequestPDF
80 FR 58499 - Agency Information Collection Activities: Request for CommentsPDF
80 FR 58506 - Meeting of the Compact Council for the National Crime Prevention and Privacy CompactPDF
80 FR 58478 - Advisory Committee to the Director (ACD), Centers for Disease Control and Prevention-State, Tribal, Local and Territorial (STLT) SubcommitteePDF
80 FR 58477 - Advisory Committee to the Director (ACD), Centers for Disease Control and Prevention (CDC)PDF
80 FR 58496 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed MeetingPDF
80 FR 58495 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingsPDF
80 FR 58496 - National Institute on Aging; Notice of Closed MeetingPDF
80 FR 58495 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of MeetingsPDF
80 FR 58477 - Breast and Cervical Cancer Early Detection and Control Advisory Committee (BCCEDCAC)PDF
80 FR 58478 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
80 FR 58486 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
80 FR 58478 - Meeting of the Advisory Committee on Immunization Practices (ACIP)PDF
80 FR 58509 - Duke Energy Carolinas, LLC; Oconee Nuclear Station Units 1, 2, and 3; Independent Spent Fuel Storage InstallationPDF
80 FR 58512 - Design of Structures, Components, Equipment, and SystemsPDF
80 FR 58525 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
80 FR 58486 - Performance Review Board MembersPDF
80 FR 58469 - Proposed Collection; Comment RequestPDF
80 FR 58508 - Perry Nuclear Power Plant, Unit 1; Consideration of Approval of Transfer of License and Conforming Amendment; CorrectionPDF
80 FR 58462 - Plumas National Forest; California; Plumas National Forest Over-Snow Vehicle (OSV) Use Designation Environmental Impact StatementPDF
80 FR 58530 - Notice of Proposed Buy America Waiver for Proposed Innovative Electronic Platform Track Intrusion SystemPDF
80 FR 58530 - Notice of Proposed Buy America Waiver for Voith Propulsion UnitPDF
80 FR 58526 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
80 FR 58489 - Issuance of Priority Review Voucher; Rare Pediatric Disease ProductPDF
80 FR 58427 - List of Fisheries for 2016PDF
80 FR 58532 - Submission for OMB Review; Comment RequestPDF
80 FR 58471 - Proposed Collection; Comment RequestPDF
80 FR 58528 - Advisory Committee on Small and Emerging CompaniesPDF
80 FR 58475 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 58475 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 58468 - Proposed Collection; Comment RequestPDF
80 FR 58496 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 58506 - Agency Information Collection Activities; Proposed Collection; Comments Requested; Request To Be Included on the List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings (Form EOIR-56)PDF
80 FR 58488 - Medical Devices; Availability of Safety and Effectiveness Summaries for Premarket Approval ApplicationsPDF
80 FR 58492 - E6(R2) Good Clinical Practice; International Conference on Harmonisation; Draft Guidance for Industry; AvailabilityPDF
80 FR 58489 - Determination That ORTHO EVRA (Norelgestromin/Ethinyl Estradiol) Transdermal System, 0.15 Milligrams/24 Hours Norelgestromin and 0.035 Milligrams/24 Hours Ethinyl Estradiol, Was Not Withdrawn From Sale for Reasons of Safety or EffectivenessPDF
80 FR 58491 - Controlled Correspondence Related to Generic Drug Development; Guidance for Industry; AvailabilityPDF
80 FR 58487 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Early Food Safety Evaluation of New Non-Pesticidal Proteins Produced by New Plant Varieties Intended for Food UsePDF
80 FR 58490 - Determination That PONDIMIN (Fenfluramine Hydrochloride) Tablets, 20 Milligrams and 60 Milligrams, and PONDEREX (Fenfluramine Hydrochloride) Capsules, 20 Milligrams Were Withdrawn From Sale for Reasons of Safety or EffectivenessPDF
80 FR 58507 - Notice of Lodging of Proposed Agreement and Order Regarding Modification of Consent Decree Under the Clean Water ActPDF
80 FR 58507 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Refuge Alternatives for Underground Coal MinesPDF
80 FR 58529 - Motor Carrier Safety Advisory Committee; Charter RenewalPDF
80 FR 58473 - Submission for OMB Review; Comment RequestPDF
80 FR 58505 - Notice Pursuant to the National Cooperative Research and Production Act-PXI Systems Alliance, Inc.PDF
80 FR 58506 - Notice Pursuant to the National Cooperative Research and Production Act-UHD Alliance, Inc.PDF
80 FR 58505 - Notice Pursuant to the National Cooperative Research and Production Act-Open Platform for NFV Project, Inc.PDF
80 FR 58505 - Notice Pursuant to the National Cooperative Research and Production Act-Interchangeable Virtual Instruments Foundation, Inc.PDF
80 FR 58504 - Notice Pursuant to the National Cooperative Research and Production Act-Global Climate and Energy ProjectPDF
80 FR 58479 - Statement of Organization, Functions, and Delegations of AuthorityPDF
80 FR 58527 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To Adopt New Rule 8.17 To Provide a Process for an Expedited Suspension Proceeding and Rule 12.15 To Prohibit Layering and Spoofing on BATS Exchange, Inc.PDF
80 FR 58529 - Petition for Exemption; Summary of Petition Received; Delta Air Lines, Inc.PDF
80 FR 58365 - Aggregation of PositionsPDF
80 FR 58472 - Strategic Environmental Research and Development Program, Scientific Advisory Board; Notice of Federal Advisory Committee MeetingPDF
80 FR 58503 - Certain Uncoated Paper from Australia, Brazil, China, Indonesia, and Portugal; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
80 FR 58448 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery and Golden Crab Fishery of the South Atlantic, and Dolphin and Wahoo Fishery of the AtlanticPDF
80 FR 58362 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 58513 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards ConsiderationsPDF
80 FR 58464 - University of Pittsburgh, et al.; Notice of Decision on Application for Duty-Free Entry of Scientific InstrumentsPDF
80 FR 58466 - Oregon State University, et al.; Notice of Consolidated Decision on Applications for Duty-Free Entry of Electron MicroscopePDF
80 FR 58342 - Airworthiness Directives; Pilatus Aircraft Ltd. AirplanesPDF
80 FR 58410 - Approval and Promulgation of Air Quality Implementation Plans; Missouri; Regional Haze Five-Year Progress Report State Implementation PlanPDF
80 FR 58421 - Enable Railroad Police Officers To Access Public Safety Interoperability and Mutual Aid ChannelsPDF
80 FR 58501 - Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Greater Phoenix Mine Project, Lander County, NVPDF
80 FR 58364 - Proposed Establishment of Class E Airspace, Neah Bay, WAPDF
80 FR 58502 - Revised Environmental Assessment for Virginia Offshore Wind Technology Advancement Project on the Atlantic Outer Continental Shelf Offshore Virginia; MMAA104000PDF
80 FR 58335 - Revision of Delegations of AuthorityPDF
80 FR 58467 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
80 FR 58473 - Proposed Information Collection Request; Comment Request; Regional Haze Regulations (Renewal)PDF
80 FR 58535 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for Chamaecrista lineata var. keyensis (Big Pine Partridge Pea), Chamaesyce deltoidea ssp. serpyllum (Wedge Spurge), and Linum arenicola (Sand Flax), and Threatened Species Status for Argythamnia blodgettii (Blodgett's Silverbush)PDF
80 FR 58393 - Settlement Intervals and Shortage Pricing in Markets Operated by Regional Transmission Organizations and Independent System OperatorsPDF
80 FR 58405 - Availability of Certain North American Electric Reliability Corporation Databases to the CommissionPDF
80 FR 58382 - Collection of Connected Entity Data From Regional Transmission Organizations and Independent System OperatorsPDF
80 FR 58349 - Airworthiness Directives; Piaggio Aero Industries S.p.A. AirplanesPDF
80 FR 58351 - Airworthiness Directives; Airbus Helicopters Deutschland GmbH (formerly Eurocopter Deutschland GmbH) (Airbus Helicopters) HelicoptersPDF
80 FR 58344 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
80 FR 58354 - Airworthiness Directives; M7 Aerospace LLC AirplanesPDF
80 FR 58346 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 58357 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 58339 - Airworthiness Directives; Lycoming Engines Fuel Injected Reciprocating EnginesPDF

Issue

80 188 Tuesday, September 29, 2015 Contents Agriculture Agriculture Department See

Forest Service

RULES Delegations of Authority; Revision, 58335-58339 2015-24361
Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: Global Climate and Energy Project, 58504-58505 2015-24604 Interchangeable Virtual Instruments Foundation, Inc., 58505 2015-24607 Open Platform for NFV Project, Inc., 58505-58506 2015-24608 PXI Systems Alliance, Inc., 58505 2015-24610 UHD Alliance, Inc., 58506 2015-24609 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58468-58472 2015-24628 2015-24636 2015-24649 2015-24669 2015-24597 2015-24602 2015-24606 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58467 2015-24340 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58475-58477, 58485-58486 2015-24680 2015-24681 Funding Opportunity: Epi-Centers for the Prevention of Healthcare-Associated Infections, Antimicrobial Resistance and Adverse Events., 58485 2015-24673 Meetings: Advisory Committee on Immunization Practices, 58478 2015-24656 Advisory Committee to the Director, Centers for Disease Control and Prevention, 58477 2015-24665 Advisory Committee to the Director; State, Tribal, Local and Territorial Subcommittee, 58478-58479 2015-24666 Breast and Cervical Cancer Early Detection and Control Advisory Committee, 58477 2015-24659 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 58478 2015-24658 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 58486 2015-24657 Performance Review Board Members, 58486-58487 2015-24650 Statements of Organization, Functions, and Delegations of Authority, 58479-58485 2015-24601 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Futures Commodity Futures Trading Commission PROPOSED RULES Aggregation of Positions, 58365-58382 2015-24596 Defense Department Defense Department See

Army Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58473 2015-24611 Meetings: Strategic Environmental Research and Development Program, Scientific Advisory Board, 58472-58473 2015-24595
Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Missouri; Regional Haze Five-Year Progress Report, 58410-58417 2015-24461 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Regional Haze Regulations, 58473-58474 2015-24332 Export Import Export-Import Bank NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58474-58475 2015-24675 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Helicopters Deutschland GmbH (formerly Eurocopter Deutschland GmbH) (Airbus Helicopters) Helicopters, 58351-58354 2015-24256 Bombardier, Inc. Airplanes, 58344-58346 2015-24252 Lycoming Engines Fuel Injected Reciprocating Engines, 58339-58342 2015-23617 M7 Aerospace LLC Airplanes, 58354-58357 2015-24249 Piaggio Aero Industries S.p.A. Airplanes, 58349-58351 2015-24257 PILATUS AIRCRAFT LTD. Airplanes, 58342-58344 2015-24464 The Boeing Company Airplanes, 2015-24145 58346-58349, 58357-58361 2015-24146 PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 58362-58364 2015-24565 Establishment of Class E Airspace: Neah Bay, WA, 58364-58365 2015-24431 NOTICES Petitions for Exemptions; Summaries: Delta Air Lines, Inc., 58529 2015-24598 Federal Bureau Federal Bureau of Investigation NOTICES Meetings: Compact Council for the National Crime Prevention and Privacy Compact, 58506 2015-24667 Federal Communications Federal Communications Commission PROPOSED RULES Enable Railroad Police Officers to Access Public Safety Interoperability and Mutual Aid Channels, 58421-58427 2015-24441 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Availability of Certain North American Electric Reliability Corporation Databases to the Commission, 58405-58410 2015-24282 Collection of Connected Entity Data from Regional Transmission Organizations and Independent System Operators, 58382-58393 2015-24281 Settlement Intervals and Shortage Pricing in Markets Operated by Regional Transmission Organizations and Independent System Operators, 58393-58405 2015-24283 Federal Motor Federal Motor Carrier Safety Administration NOTICES Charter Renewals: Motor Carrier Safety Advisory Committee, 58529 2015-24616 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 58475 2015-24629 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 58475 2015-24630 Federal Transit Federal Transit Administration NOTICES Buy American Waivers: Innovative Electronic Platform Track Intrusion System, 58530-58532 2015-24643 Voith Propulsion Unit, 58530 2015-24642 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Endangered Species Status for Chamaecrista lineata var. keyensis (Big Pine Partridge Pea), Chamaesyce deltoidea ssp. serpyllum (Wedge Spurge), and Linum arenicola (Sand Flax), and Threatened Species Status for Argythamnia blodgettii (Blodgett's Silverbush), 58536-58567 2015-24291 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Early Food Safety Evaluation of New Non-Pesticidal Proteins Produced by New Plant Varieties Intended for Food Use, 58487-58488 2015-24620 Guidance: Controlled Correspondence Related to Generic Drug Development, 58491-58492 2015-24621 E6(R2) Good Clinical Practice; International Conference on Harmonisation, 58492-58493 2015-24623 Medical Devices: Safety and Effectiveness Summaries for Premarket Approval Applications, 58488-58489 2015-24625 Priority Review Vouchers: Rare Pediatric Disease Product, 58489 2015-24640 Withdrawal of Products from Sale for Reasons of Safety or Effectiveness: PONDIMIN (Fenfluramine Hydrochloride) Tablets, 20 Milligrams and 60 Milligrams, and PONDEREX (Fenfluramine Hydrochloride) Capsules, 20 Milligrams, 58490-58491 2015-24619 Withdrawal of Products from Sale for Reasons Other Than Safety or Effectiveness: ORTHO EVRA (Norelgestromin/Ethinyl Estradiol) Transdermal System, 0.15 Milligrams/24 Hours Norelgestromin and 0.035 Milligrams/24 Hours Ethinyl Estradiol, 58489-58490 2015-24622 Foreign Trade Foreign-Trade Zones Board NOTICES Applications for Expansions under Alternative Site Frameworks: Foreign-Trade Zone 149, Freeport, TX, 58464 2015-24683 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Over-Snow Vehicle Use Designation, Plumas National Forest, CA, 58462-58464 2015-24644 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58499-58500 2015-24668 Gulf Coast Ecosystem Restoration Council Gulf Coast Ecosystem Restoration Council PROPOSED RULES RESTORE Act Spill Impact Component Allocation, 58417-58421 2015-24816 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department NOTICES Requests for Nominations: Office for Interoperability and Compatibility Project 25 Compliance Assessment Program Advisory Panel, 58498-58499 2015-24686 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

See

Ocean Energy Management Bureau

International Trade Adm International Trade Administration NOTICES Applications for Duty-Free Entry of Scientific Instruments: Oregon State University, et al.; Electron Microscope, 58466 2015-24466 University of Pittsburgh, et al., 58464-58466 2015-24468 International Trade Com International Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certain Uncoated Paper from Australia, Brazil, China, Indonesia, and Portugal, 58503-58504 2015-24593 Justice Department Justice Department See

Antitrust Division

See

Federal Bureau of Investigation

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings, 58506-58507 2015-24626 Proposed Consent Decrees under the Clean Water Act, 58507 2015-24618
Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Refuge Alternatives for Underground Coal Mines, 58507-58508 2015-24617 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Greater Phoenix Mine Project, Lander County, NV, 58501-58502 2015-24432 National Petroleum Reserve in Alaska Oil and Gas Lease Sale 2015, 58502 2015-24671 Realty Actions: Proposed Non-Competitive (Direct) Sale of Public Land in Beaver County, UT, 58500-58501 2015-24695 National Institute National Institutes of Health NOTICES Meetings: National Institute of Biomedical Imaging and Bioengineering, 2015-24663 58496 2015-24664 National Institute of Diabetes and Digestive and Kidney Diseases, 58495 2015-24660 National Institute on Aging, 58496 2015-24661 National Institute on Alcohol Abuse and Alcoholism, 58495-58496 2015-24662 Start-Up Exclusive Patent License Approvals: Real-Time PCR Point Mutation Assays for Detecting HIV-1 Resistance to Antiviral Drugs, 58493-58495 2015-24674 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Snapper-Grouper Fishery and Golden Crab Fishery of the South Atlantic, and Dolphin and Wahoo Fishery of the Atlantic, 58448-58461 2015-24576 List of Fisheries for 2016, 58427-58448 2015-24638 NOTICES Meetings: Marine Fisheries Advisory Committee, 58466-58467 2015-24676 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards Considerations, 58513-58525 2015-24472 Approval of Transfer of License and Conforming Amendment; Consideration: Perry Nuclear Power Plant, Unit 1; Correction, 58508-58509 2015-24646 Exemptions: Duke Energy Carolinas, LLC; Oconee Nuclear Station Units 1, 2, and 3; Independent Spent Fuel Storage Installation, 58509-58512 2015-24655 Standard Review of Draft-Plan Section Revisions: Design of Structures, Components, Equipment, and Systems, 58512-58513 2015-24654 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Assessments; Availability, etc.: Virginia Offshore Wind Technology Advancement Project on the Atlantic Outer Continental Shelf, 58502-58503 2015-24408 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 58525 2015-24679 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Gold Star Mother's and Family's Day (Proc. 9328), 58569-58572 2015-24902 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58525-58527 2015-24641 2015-24651 Securities Securities and Exchange Commission NOTICES Charter Renewals: Advisory Committee on Small and Emerging Companies, 58528 2015-24634 Meetings; Sunshine Act, 58528-58529 2015-24732 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 58527-58528 2015-24599 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58496-58498 2015-24627 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Transit Administration

Treasury Treasury Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2015-24633 58532-58533 2015-24637 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 58536-58567 2015-24291 Part III Presidential Documents, 58569-58572 2015-24902 Reader Aids

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

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80 188 Tuesday, September 29, 2015 Rules and Regulations DEPARTMENT OF AGRICULTURE Office of the Secretary 7 CFR Part 2 RIN 0503-AA58 Revision of Delegations of Authority AGENCY:

Office of the Secretary, USDA.

ACTION:

Final rule.

SUMMARY:

The Secretary of Agriculture is authorized to delegate functions, powers, and duties as the Secretary deems appropriate. This document amends the existing delegations of authority by adding and modifying certain delegations, as explained in the Supplementary Information section below.

DATES:

Effective September 29, 2015.

FOR FURTHER INFORMATION CONTACT:

Adam J. Hermann, Office of the General Counsel, USDA, 3311-South Bldg., 1400 Independence Avenue SW., Washington, DC 20250, (202) 720-9425, [email protected].

SUPPLEMENTARY INFORMATION:

This rule makes several changes to the United States Department of Agriculture's (USDA) delegations of authority in 7 CFR part 2 by adding new delegations and modifying existing delegations.

This rule adds a new delegation of authority from the Secretary to the Chief Financial Officer (CFO) to provide guidance on implementation of prize competition authority in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719), as added by the America COMPETES Reauthorization Act of 2010 (Pub. L. 111-358). This includes delegated authority to develop guidelines to ensure that judges appointed for prize competitions are fairly balanced and operate in a transparent manner. Delegations of authority are also added to the following General Officers to carry out prize competition authorities in 15 U.S.C. 3719 in their respective areas: Under Secretary for Farm and Foreign Agricultural Services (FFAS); Under Secretary for Rural Development; Under Secretary for Food Safety; Under Secretary for Food, Nutrition, and Consumer Services; Under Secretary for Natural Resources and Environment; Under Secretary for Research, Education, and Economics; Under Secretary for Marketing and Regulatory Programs; Assistant Secretary for Administration; Assistant Secretary for Civil Rights; and the Chief Economist. The authority to approve prize competitions that may result in the award of more than $1,000,000 in cash prizes is reserved to the Secretary. See Secretary's Memorandum 1076-008 (September 26, 2014), available at http://www.ocio.usda.gov/document/secretarys-memorandum-1076-008.

This rule also adds a new delegation of authority from the Secretary to the Assistant Secretary for Civil Rights to award grants and enter into cooperative agreements, as appropriate, under the following authorities for the purpose of conducting outreach efforts in connection with functions delegated to the Assistant Secretary: Grants and cooperative agreements under section 2501(a)(3) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279(a)(3)); cooperative agreements under section 1472(b) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (NARETPA) (7 U.S.C. 3318(b)); grants and cooperative agreements under section 1472(c) of NARETPA (7 U.S.C. 3318(c)); cooperative agreements under section 607(b)(4) of the Rural Development Act of 1972 (7 U.S.C. 2204b(b)(4)); and cooperative agreements under section 714 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (7 U.S.C. 6962a). See Secretary's Memorandum 1076-009 (November 5, 2014), available at http://www.ocio.usda.gov/document/secretarys-memorandum-1076-009.

This rule also revises the existing delegations from the Secretary to the Under Secretary for FFAS, and from the Under Secretary for FFAS to the Administrator of the Farm Service Agency (FSA), to expand the purposes for which cooperative agreements under section 607(b)(4) of the Rural Development Act of 1972 (7 U.S.C. 2204b(b)(4)) may be awarded. That authority authorizes the Secretary to enter into cooperative agreements with other Federal agencies, State and local governments, and any other organization or individual “to improve the coordination and effectiveness of Federal programs, services, and actions affecting rural areas” if the objectives of the agreement “will serve the mutual interest of the parties in rural development activities.” Currently, within the FFAS mission area, this authority is delegated to the Under Secretary for FFAS and the Administrator of FSA only with respect to conservation programs. This rule expands that delegation by providing authority to enter into cooperative agreements of less than $100,000 with nongovernmental organizations or educational institutions, where the agreement is related to outreach and technical assistance for FSA programs. If the cooperative agreement focuses on outreach activities involving beginning, underserved, or veteran producers, coordination with USDA's Office of Advocacy and Outreach is required. See Secretary's Memorandum 1076-010 (January 13, 2015), available at http://www.ocio.usda.gov/document/secretarys-memorandum-1076-010.

This rule also amends the existing delegations from the Secretary to the Under Secretary for FFAS, and from the Under Secretary for FFAS to the Administrator of FSA, to clarify the authority of FSA to implement an Agriculture Priorities and Allocations System, similar to the Department of Commerce's Defense Priorities and Allocations System (15 CFR part 700), to establish procedures for the placement, acceptance, and performance of priority rated contracts and orders and for the allocation of materials, services, and facilities, by adding a specific delegation. Final approval of any allocations orders is reserved to the Secretary. See FSA, Proposed Rule, “Agriculture Priorities and Allocations System,” 76 FR 29084 (May 19, 2011). Minor changes are also being made to the delegations to FSA, the Assistant Secretary for Administration, and the Director of the Office of Homeland Security and Emergency Coordination regarding the Defense Production Act of 1950 (50 U.S.C. App. 2061, et seq.) to make a correction and update the list of Executive Orders.

This rule also amends the delegation of authority from the Under Secretary for Food Safety to the Deputy Under Secretary for Food Safety in 7 CFR 2.51, which gives the Deputy Under Secretary, during the absence or unavailability of the Under Secretary, the authority to perform all the duties and exercise all the powers delegated to the Under Secretary. The delegation is amended to establish the order in which a Deputy Under Secretary may exercise that delegation when the Food Safety mission area has more than one Deputy Under Secretary. The authority will be exercised first by a career Deputy Under Secretary in the order in which he or she has taken that office, and second by a non-career Deputy Under Secretary in the order in which he or she has taken that office.

This rule also adds a specific delegation from the Secretary to the Under Secretary for Research, Education, and Economics to consult with the Foundation for Food and Agriculture Research pursuant to section 7601(d)(1)(B) of the Agricultural Act of 2014 (7 U.S.C. 5939(d)(1)(B)).

This rule includes a technical fix to remove an obsolete delegation from the Secretary to the Assistant Secretary for Congressional Relations in 7 CFR 2.23. That amendment was included in the final rule published at 79 FR 44101, 44109 (July 30, 2014), but that amendment could not be incorporated due to an inaccurate amendatory instruction. This rule includes the correct amendatory instruction.

Finally, this rule corrects a reference to the Chief of the Natural Resources Conservation Service with respect to carrying out certain functions under the Farm Security and Rural Investment Act of 2002 and deletes an obsolete reporting delegation from that Act.

Classification

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

List of Subjects in 7 CFR Part 2

Authority delegations (Government agencies).

Accordingly, 7 CFR part 2 is amended as follows:

PART 2—DELEGATIONS OF AUTHORITY BY THE SECRETARY OF AGRICULTURE AND GENERAL OFFICERS OF THE DEPARTMENT 1. The authority citation for part 2 continues to read as follows: Authority:

7 U.S.C. 6912(a)(1); 5 U.S.C. 301; Reorganization Plan No. 2 of 1953, 3 CFR 1949-1953 Comp., p. 1024.

Subpart C—Delegations of Authority to the Deputy Secretary, Under Secretaries, and Assistant Secretaries 2. Amend § 2.16 as follows: a. Remove paragraph (a)(1)(xxvi)(C); b. Revise paragraphs (a)(1)(xxviii) and (a)(6); c. Add paragraphs (a)(10), (b)(1)(iii), and (b)(4).

The revisions and additions read as follows:

§ 2.16 Under Secretary for Farm and Foreign Agricultural Services.

(a) * * *

(1) * * *

(xxviii) Administer cooperative agreements authorized under 7 U.S.C. 2204b(b)(4) as follows:

(A) Administer cooperative agreements with respect to conservation programs;

(B) Administer cooperative agreements, of less than $100,000, with nongovernmental organizations or educational institutions related to outreach and technical assistance for programs carried out by the Farm Service Agency, and, where such cooperative agreements focus on outreach activities to beginning, underserved, or veteran producers, coordinate with the Assistant Secretary for Administration to reduce potential duplication.

(6) Related to defense and emergency preparedness. (i) Administer responsibilities and functions assigned under the Defense Production Act of 1950 (50 U.S.C. App. 2061 et seq.), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.), concerning agricultural production; food processing, storage, and distribution; distribution of farm equipment and fertilizer; rehabilitation and use of food, agricultural, and related agribusiness facilities; CCC resources; farm credit and financial assistance; and foreign agricultural intelligence and other foreign agricultural matters.

(ii) Administer functions delegated by the President to the Secretary under Executive Order 13603, “National Defense Resources Preparedness” (3 CFR, 2012 Comp., p. 225), and Executive Order 12742, “National Security Industrial Responsiveness” (3 CFR, 1991 Comp., p. 309), including administration of an Agriculture Priorities and Allocations System.

(10) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Farm and Foreign Agricultural Services, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(4) of this section.

(b) * * *

(1) * * *

(iii) Final approval of allocations orders issued by the Department pursuant to authorities delegated by the President to the Secretary under Executive Order 13603, “National Defense Resources Preparedness” (3 CFR, 2012 Comp., p. 225).

(4) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

3. Amend § 2.17 by adding paragraphs (a)(31) and (b)(2) to read as follows:
§ 2.17 Under Secretary for Rural Development.

(a) * * *

(31) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Rural Development, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(2) of this section.

(b) * * *

(2) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

4. Amend § 2.18 by adding paragraphs (a)(8) and (b) to read as follows:
§ 2.18 Under Secretary for Food Safety.

(a) * * *

(8) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Food Safety, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(1) of this section.

(b) The following authorities are reserved to the Secretary of Agriculture:

(1) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

(2) [Reserved]

5. Amend § 2.19 by adding paragraphs (a)(6) and (b)(2) to read as follows:
§ 2.19 Under Secretary for Food, Nutrition, and Consumer Services.

(a) * * *

(6) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Food, Nutrition, and Consumer Services, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(2) of this section.

(b) * * *

(2) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

6. Amend § 2.20 as follows: a. Remove paragraph (a)(3)(xvi)(C); and b. Add paragraphs (a)(10) and (b)(2).

The additions read as follows:

§ 2.20 Under Secretary for Natural Resources and Environment.

(a) * * *

(10) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Natural Resources and Environment, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(2) of this section.

(b) * * *

(2) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

7. Amend § 2.21 by adding paragraphs (a)(1)(ccxiii), (a)(13), and (b)(3) to read as follows:
§ 2.21 Under Secretary for Research, Education, and Economics.

(a) * * *

(1) * * *

(ccxiii) Consult with the Foundation for Food and Agriculture Research regarding the identification of existing and proposed Federal intramural and extramural research and development programs relating to the purposes of the Foundation and the coordination of Foundation activities with those programs for the purpose of minimizing duplication of existing efforts and avoiding conflicts (7 U.S.C. 5939(d)(1)(B)).

(13) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Research, Education, and Economics, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(3) of this section.

(b) * * *

(3) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

8. Amend § 2.22 by adding paragraphs (a)(11) and (b)(3) to read as follows:
§ 2.22 Under Secretary for Marketing and Regulatory Programs.

(a) * * *

(11) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Under Secretary for Marketing and Regulatory Programs, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(3) of this section.

(b) * * *

(3) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

§ 2.23 [Amended]
9. Amend § 2.23 by removing paragraph (a)(2)(v). 10. Amend § 2.24 as follows: a. Revise paragraph (a)(8)(ii)(A); and b. Add paragraphs (a)(13) and (b)(3).

The revision and additions read as follows:

§ 2.24 Assistant Secretary for Administration.

(a) * * *

(8) * * *

(ii) * * *

(A) Coordinate the delegations and assignments made to the Department under the Defense Production Act of 1950, 50 U.S.C. App. 2061, et seq.; the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121, et seq.; and by Executive Orders 12148, “Federal Emergency Management” (3 CFR, 1979 Comp., p. 412), 12656, “Assignment of Emergency Preparedness Responsibilities” (3 CFR, 1988 Comp., p. 585), and 13603, “National Defense Resources Preparedness” (3 CFR, 2012 Comp., p. 225), or any successor to these Executive Orders, to ensure that the Department has sufficient capabilities to respond to any occurrence, including natural disaster, military attack, technological emergency, or any all hazards incident.

(13) Other general. (i) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Assistant Secretary for Administration, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(3) of this section.

(ii) [Reserved]

(b) * * *

(3) Other general. (i) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

(ii) [Reserved]

11. Amend § 2.25 as follows: a. Revise paragraph (a)(23); and b. Add paragraphs (a)(24), (a)(25), and (b).

The revision and additions read as follows:

§ 2.25 Assistant Secretary for Civil Rights.

(a) * * *

(23) Redelegate, as appropriate, any authority delegated under paragraphs (a)(1) through (22) of this section to general officers of the Department and heads of Departmental agencies.

(24) Award grants and enter into cooperative agreements, as appropriate, under the following authorities only for the purpose of conducting outreach efforts in connection with the duties and powers delegated to the Assistant Secretary for Civil Rights under this section:

(i) Grants and cooperative agreements under section 2501(a)(3) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279(a)(3));

(ii) Cooperative agreements under section 1472(b) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318(b));

(iii) Grants and cooperative agreements under section 1472(c) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318(c));

(iv) Cooperative agreements under section 607(b)(4) of the Rural Development Act of 1972 (7 U.S.C. 2204b(b)(4)); and

(v) Cooperative agreements under section 714 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (7 U.S.C. 6962a).

(25) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Assistant Secretary for Civil Rights, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(1) of this section.

(b) The following authorities are reserved to the Secretary of Agriculture:

(1) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

(2) [Reserved]

Subpart D—Delegations of Authority to Other General Officers and Agency Heads 12. Amend § 2.28 as follows: a. Revise paragraph (a)(28); and b. Add paragraphs (a)(29) and (b).

The revision and additions read as follows:

§ 2.28 Chief Financial Officer.

(a) * * *

(28) Redelegate, as appropriate, any authority delegated under paragraphs (a)(1) through (27) of this section to general officers of the Department and heads of Departmental agencies.

(29) Provide Departmentwide guidance on implementation of prize competition authority in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719); develop guidelines to ensure that judges appointed for prize competitions under that authority are fairly balanced and operate in a transparent manner (15 U.S.C. 3719(k)(3)).

(b) The following authorities are reserved to the Secretary of Agriculture:

(1) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

(2) [Reserved]

13. Amend § 2.29 by adding paragraphs (a)(15) and (b) to read as follows:
§ 2.29 Chief Economist.

(a) * * *

(15) Carry out prize competition authorities in section 24 of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719) related to functions otherwise delegated to the Chief Economist, except for authorities delegated to the Chief Financial Officer in § 2.28(a)(29) and authorities reserved to the Secretary in paragraph (b)(1) of this section.

(b) The following authorities are reserved to the Secretary of Agriculture:

(1) Approval of prize competitions that may result in the award of more than $1,000,000 in cash prizes under section 24(m)(4)(B) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3719(m)(4)(B)).

(2) [Reserved]

Subpart F—Delegations of Authority by the Under Secretary for Farm and Foreign Agricultural Services 14. Amend § 2.42 as follows: a. Revise paragraph (a)(5); b. Remove paragraph (a)(46)(iii); and c. Revise paragraph (a)(50).

The revisions read as follows:

§ 2.42 Administrator, Farm Service Agency.

(a) * * *

(5) Related to defense and emergency preparedness. (i) Administer responsibilities and functions assigned under the Defense Production Act of 1950 (50 U.S.C. App. 2061 et seq.), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.), concerning agricultural production; food processing, storage, and distribution; distribution of farm equipment and fertilizer; rehabilitation and use of food, agricultural, and related agribusiness facilities; CCC resources; and farm credit and financial assistance.

(ii) Administer functions delegated by the President to the Secretary under Executive Order 13603, “National Defense Resources Preparedness” (3 CFR, 2012 Comp., p. 225), and Executive Order 12742, “National Security Industrial Responsiveness” (3 CFR, 1991 Comp., p. 309), including administration of an Agriculture Priorities and Allocations System.

(50) Administer cooperative agreements authorized under 7 U.S.C. 2204b(b)(4) as follows:

(i) Administer cooperative agreements with respect to conservation programs;

(ii) Administer cooperative agreements, of less than $100,000, with nongovernmental organizations or educational institutions related to outreach and technical assistance for programs carried out by the Farm Service Agency, and, where such cooperative agreements focus on outreach activities to beginning, underserved, or veteran producers, coordinate with the Director, Office of Advocacy and Outreach to reduce potential duplication.

Subpart H—Delegations of Authority by the Under Secretary for Food Safety 15. Revise § 2.51 to read as follows:
§ 2.51 Deputy Under Secretary for Food Safety.

Pursuant to § 2.18, and subject to policy guidance and direction by the Under Secretary, the following delegation of authority is made by the Under Secretary for Food Safety to the Deputy Under Secretary for Food Safety, to be exercised only during the absence or unavailability of the Under Secretary: Perform all the duties and exercise all the powers which are now or which may hereafter be delegated to the Under Secretary for Food Safety: Provided, that this authority shall be exercised first by a career Deputy Under Secretary in the order in which he or she has taken office as Deputy Under Secretary, and second by a non-career Deputy Under Secretary in the order in which he or she has taken office as Deputy Under Secretary.

Subpart J—Delegations of Authority by the Under Secretary for Natural Resources and Environment 16. Amend § 2.61 as follows: a. Revise the introductory text of paragraph (a)(25); b. Add “and” after the semicolon in paragraph (a)(25)(i); c. Remove “; and” and add a period in its place in paragraph (a)(25)(ii); and d. Remove paragraph (a)(25)(iii).

The revision reads as follows:

§ 2.61 Chief, Natural Resources Conservation Service.

(a) * * *

(25) Administer the following provisions of the Farm Security and Rural Investment Act of 2002 with respect to functions otherwise delegated to the Chief, Natural Resources Conservation Service:

Subpart P—Delegations of Authority by the Assistant Secretary for Administration 17. Amend § 2.95(b)(1)(i) to read as follows:
§ 2.95 Director, Office of Homeland Security and Emergency Coordination.

(b) * * *

(1) * * *

(i) Coordinate the delegations and assignments made to the Department under the Defense Production Act of 1950, 50 U.S.C. App. 2061, et seq.; the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121, et seq.; and by Executive Orders 12148, “Federal Emergency Management” (3 CFR, 1979 Comp., p. 412), 12656, “Assignment of Emergency Preparedness Responsibilities” (3 CFR, 1988 Comp., p. 585), and 13603, “National Defense Resources Preparedness” (3 CFR, 2012 Comp., p. 225), or any successor to these Executive Orders, to ensure that the Department has sufficient capabilities to respond to any occurrence, including natural disaster, military attack, technological emergency, or any all hazards incident.

Dated: September 18, 2015. Thomas J. Vilsack, Secretary of Agriculture.
[FR Doc. 2015-24361 Filed 9-28-15; 8:45 am] BILLING CODE 3410-90-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0218; Directorate Identifier 92-ANE-56-AD; Amendment 39-18269; AD 2015-19-07] RIN 2120-AA64 Airworthiness Directives; Lycoming Engines Fuel Injected Reciprocating Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are superseding airworthiness directive (AD) 2011-26-04 for certain fuel injected reciprocating engines manufactured by Lycoming Engines. AD 2011-26-04 required inspection, replacement if necessary, and proper clamping of externally mounted fuel injector fuel lines. This new AD retains the requirements of AD 2011-26-04, and expands the list of affected engine models. This AD was prompted by revised service information that added engine models to the applicability. We are issuing this AD to prevent failure of the fuel injector fuel lines, which could lead to uncontrolled engine fire, engine damage, and damage to the airplane.

DATES:

This AD is effective November 3, 2015.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 3, 2015.

ADDRESSES:

For service information identified in this AD, contact Lycoming Engines, 652 Oliver Street, Williamsport, PA 17701; phone: 800-258-3279; fax: 570-327-7101; Internet: www.lycoming.com/Lycoming/SUPPORT/TechnicalPublications/ServiceBulletins.aspx. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call (781) 238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2007-0218.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2007-0218; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Norm Perenson, Aerospace Engineer, New York Aircraft Certification Office, FAA, Engine & Propeller Directorate, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516-228-7337; fax: 516-794-5531; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011-26-04, Amendment 39-16894 (76 FR 79051, December 21, 2011), (“AD 2011-26-04”). AD 2011-26-04 applied to certain fuel injected reciprocating engines manufactured by Lycoming Engines. The NPRM published in the Federal Register on November 25, 2013 (78 FR 70240). The NPRM was prompted by revised service information that added engine models to the applicability. The NPRM proposed to expand the scope by adding the IO-540-C1C5 and IO-540-D4B5 engine models and requiring inspection, replacement if necessary, and proper clamping of externally mounted fuel injector fuel lines. We are issuing this AD to prevent failure of the fuel injector fuel lines, which could lead to uncontrolled engine fire, engine damage, and damage to the airplane.

Related Service Information Under 1 CFR Part 51

We reviewed Lycoming Engines Mandatory Service Bulletin (MSB) No. 342G, dated July 16, 2013; Supplement No. 1 to MSB No. 342G, dated August 29, 2013; and Supplement No. 2 to MSB No. 342G, dated January 23, 2014. The service information describes procedures for fuel line and support clamp inspection and installation. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

Comments

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

Request To Add an Engine Model

Aerotech Publications and an individual commenter requested that the Lycoming LIO-360-M1A be added to the AD. The justification given was that the type certificate data sheet, 1E10, shows the LIO-360-M1A to be identical to the IO-360-M1A except with counter rotation. Additionally, unless specific engine models are listed in the AD, exempting those engines with maintenance manuals would prevent the maintenance technician from knowing which engines are exempt.

We disagree. The engine certification basis determines if an engine model's mandatory maintenance will be managed by a dedicated engine maintenance manual (EMM) with an airworthiness limitations section (ALS) or by manufacturer's service bulletins (SBs). Engines certified to 14 CFR 33, as was LIO-360-M1A, have a dedicated EMM with an ALS that includes the fuel tube inspection in Section 05-00-00. We did not change this AD.

Request To Add Service Information

Lycoming Engines requested that Lycoming SB 342G, Supplement No. 2, dated January 23, 2014 be added to this AD. Lycoming said that SB 342G, Supplement No. 2 removes the eight inch spacing dimension between clamps and corrects Diagram No. 30 for the IO-540-M1C5 engine model.

We agree. We changed this AD to include Lycoming SB 342G, Supplement No. 2.

Request To Allow Previously Approved Alternative Methods of Compliance (AMOCs)

Central Airlines requested that AMOCs previously approved in AD 2008-14-07 and AD 2011-26-04 be allowed for use in this AD.

We agree. We changed the AMOC paragraph in this AD by adding: “AMOCs previously approved for AD 2008-14-07, Amendment 39-15602 (73 FR 39574, July 10, 2008) (“AD 2008-14-07”) and AD 2011-26-04, Amendment 39-16894 (76 FR 79051, December 21, 2011) (“AD 2011-26-04”) are approved as AMOCs to the corresponding requirements in paragraph (e) of this AD.”

Request To Change Applicability

An anonymous commenter requested that Continental and Jacobs R-755 engines, be added to the applicability of this AD. There was no justification provided for the request to add Continental engine(s). The commenter said that the Jacobs R-755 engine uses the same fuel units and Lycoming fuel injector tubes.

We disagree. We have received no data to indicate that any other engines, including Continental engines, have the same problem as the Lycoming engines. We also do not agree with adding the Jacbos R-755 engine to the applicability because the unsafe condition for this AD concerns missing or improperly clamped fuel injector fuel lines. We have received no reports of problems with fuel injector fuel lines for the R-755; therefore, the R-755 engine does not need to be included in this AD. We did not change this AD.

Correction to Applicability

Since we issued the NPRM (78 FR 70240, November 25, 2013) (“the NPRM”), we determined that a discussion of a change to the engine model applicability was omitted from the NPRM. Engine model LIO-360-M1A was removed from the Applicability paragraph in this AD because the fuel tube inspections are documented in the ALS for this engine model.

We also determined that the NPRM incorrectly stated that the proposed AD action would add three engine models to the applicability list of the affected engines. The NPRM added two engine models, the IO-540-C1C5 and IO-540-D4B5, to applicability list of affected engines.

Correction to the Costs of Compliance

Since we issued the NPRM, we determined that the Costs of Compliance paragraph was incorrect. We changed the Costs of Compliance paragraph in this AD to correct that error.

Conclusion

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

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

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

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

Costs of Compliance

We estimate that this AD will affect about 37,270 engines installed on airplanes of U.S. registry. We also estimate that it will require 1 hour to inspect 19,081 four cylinder engines, 1.5 hours to inspect 18,000 six cylinder engines, and 2 hours to inspect 189 eight cylinder engines. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $3,949,015.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

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

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by: a. Removing airworthiness directive (AD) 2011-26-04 (76 FR 79051, December 21, 2011) (“AD 2011-26-04”); and b. Adding the following new AD: 2015-19-07 Lycoming Engines (Type Certificate previously held by Textron Lycoming Division, AVCO Corporation) Fuel Injected Reciprocating Engines: Amendment 39-18269; Docket No. FAA-2007-0218; Directorate Identifier 92-ANE-56-AD. (a) Effective Date

This AD is effective November 3, 2015.

(b) Affected ADs

This AD supersedes AD 2011-26-04, Amendment 39-16894 (76 FR 79051, December 21, 2011).

(c) Applicability

This AD applies to Lycoming Engines fuel injected reciprocating engine models identified in Table 1 to paragraph (c) of this AD, with externally mounted fuel injector fuel lines (stainless steel tube assembly), installed.

Table 1 to Paragraph (c)—Engine Models Affected Engine Model AEIO-320 -D1B, -D2B, -E1B, -E2B. AIO-320 -A1B, -BIB, -C1B. IO-320 -B1A, -B1C, -C1A, -D1A, -D1B, -E1A, -E1B, -E2A, -E2B. LIO-320 -B1A, -C1A. AEIO-360 -A1A, -A1B, -A1B6, -A1D, -A1E, -A1E6, -B1F, -B2F, -B1G6, -B1H, -B4A, -H1A, -H1B. AIO-360 -A1A, -A1B, -B1B. HIO-360 -A1A, -A1B, -B1A, -C1A, -C1B, -D1A, -E1AD, -E1BD, -F1AD, -G1A. IO-360 -A1A, -A1B, -A1B6, -A1B6D, -A1C, -A1D, -A1D6, -A2A, -A2B, -A3B6, -A3B6D, -B1B, -B1D, -B1E, -B1F, -B1G6, -B2F, -B2F6, -B4A, -C1A, -C1B, -C1C, -C1C6, -C1D6, -C1E6, -C1F, -C1G6, -F1A, -J1A6D, -M1B, -L2A, -M1A. IVO-360 -A1A. LIO-360 -C1E6. TIO-360 -A1B, -C1A6D. IGO-480 -A1B6. AEIO-540 -D4A5, -D4B5, -D4D5, -L1B5, -L1B5D, -L1D5. IGO-540 -B1A, -B1C. IO-540 -A1A5, -AA1A5, -AA1B5, -AB1A5, -AC1A5, -AE1A5, -B1A5, -B1C5, -C1B5, -C1C5, -C4B5, -C4D5D, -D4A5, -D4B5, -E1A5, -E1B5, -G1A5, -G1B5, -G1C5, -G1D5, -G1E5, -G1F5, -J4A5, -V4A5D, -K1A5, -K1A5D, -K1B5, -K1C5, -K1D5, -K1E5, -K1E5D, -K1F5, -K1H5, -K1J5, -K1F5D, -K1G5, -K1G5D, -K1H5, -K1J5D, -K1K5, -K1E5, -K1E5D, -K1F5, -K1J5, -L1C5, -M1A5, -M1B5D, -M1C5, -N1A5, -P1A5, -R1A5, -S1A5, -T4A5D, -T4B5, -T4B5D, -T4C5D, -V4A5, -V4A5D, -W1A5, -W1A5D, -W3A5D. IVO-540 -A1A. LTIO-540 -F2BD, -J2B, -J2BD, -N2BD, -R2AD, -U2A, -V2AD, -W2A. TIO-540 -A1A, -A1B, -A2A, -A2B, -A2C, -AE2A, -AH1A, -AA1AD, -AF1A, -AF1B, -AG1A, -AB1AD, -AB1BD, -AH1A, -AJ1A, -AK1A, -C1A, -E1A, -G1A, -F2BD, -J2B, -J2BD, -N2BD, -R2AD, -S1AD, -U2A, -V2AD, -W2A. TIVO-540 -A2A. IO-720 -A1A, -A1B, -D1B, -D1BD, -D1C, -D1CD, -B1B, -B1BD, -C1B.

Engine models IO-540-AG1A5, LIO-360-M1A, IO-390-A Series, AEIO-390-A Series, IO-540-AF1A5, IO-580-B1A, and AEIO-580-B1A, are not listed in Table 1. These engine models are accounted for in the Maintenance and Overhaul Manual with an Airworthiness Limitations Section. As Lycoming has more engine models certified they will add them to this list of engines with a Maintenance and Overhaul Manual. To determine if your engine has a Maintenance and Overhaul Manual you can either contact Lycoming, or you can refer to Lycoming's list of maintenance publications for engines that have a Maintenance and Overhaul Manual.

(d) Unsafe Condition

This AD was prompted by revised service information that added engine models to the applicability. This service information adds engine models requiring inspection and technical updates. We are issuing this AD to prevent failure of the fuel injector fuel lines, which could lead to uncontrolled engine fire, engine damage, and damage to the airplane.

(e) Compliance

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

(1) Initial Inspections

(i) Within 10 hours time-in-service (TIS) after the effective date of this AD, inspect the fuel injector fuel lines and clamps between the fuel manifold and the fuel injector nozzles. Use Lycoming Engines Mandatory Service Bulletin (MSB) No. 342G, dated July 16, 2013; Supplement No. 1 to MSB No. 342G, dated August 29, 2013; and Supplement No. 2 to MSB No. 342G, dated January 23, 2014 to perform the inspection. Replace any fuel injector fuel line or clamp that fails the inspection required by the Fuel Line Inspection and Installation Checklist in MSB No. 342G.

(ii) Thereafter, re-inspect after any maintenance is done on the engine where any clamp on a fuel injector fuel line was disconnected, moved, or loosened, and within every 110 hours TIS and after each engine overhaul. Use Lycoming Engines MSB No. 342G, dated July 16, 2013; Supplement No. 1 to MSB No. 342G, dated August 29, 2013; and Supplement No. 2 to MSB No. 342G, dated January 23, 2014 to perform the inspection and the Fuel Line Inspection and Installation Checklist in MSB No. 342G to perform the re-inspection.

(f) Credit for Previous Actions

If you inspected your fuel injector fuel lines and clamps using Lycoming Engines MSB No. 342F, dated June 4, 2010, or earlier versions, you met the initial inspection requirements of this AD. However, you must still comply with the repetitive inspection requirements of paragraph (e)(1)(ii) of this AD.

(g) Alternative Methods of Compliance (AMOCs)

The Manager, New York Aircraft Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request. AMOCs previously approved for AD 2008-14-07, Amendment 39-15602 (73 FR 39574, July 10, 2008) (“AD 2008-14-07”) and AD 2011-26-04, Amendment 39-16894 (76 FR 79051, December 21, 2011) (“AD 2011-26-04”) are approved as AMOCs to the corresponding requirements in paragraph (e) of this AD.

(h) Related Information

(1) For more information about this AD, contact Norm Perenson, Aerospace Engineer, New York Aircraft Certification Office, FAA, Engine & Propeller Directorate, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516-228-7337; fax: 516-794-5531; email: [email protected]

(2) FAA Special Airworthiness Information Bulletin NE-07-49R1 contains additional information on this subject.

(i) Material Incorporated by Reference

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

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

(i) Lycoming Engines Mandatory Service Bulletin (MSB) No. 342G, dated July 16, 2013.

(ii) Lycoming Engines MSB No. 342G, Supplement No. 1, dated August 29, 2013.

(iii) Lycoming Engines MSB No. 342G, Supplement No. 2, dated January 23, 2014.

(3) For Lycoming Engines service information identified in this AD, contact Lycoming Engines, 652 Oliver Street, Williamsport, PA 17701; phone: 800-258-3279; fax: 570-327-7101; Internet: http://www.lycoming.com/Lycoming/SUPPORT/TechnicalPublications/ServiceBulletins.aspx.

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

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

Issued in Burlington, Massachusetts, on September 11, 2015. Thomas A. Boudreau, Acting Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2015-23617 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2775; Directorate Identifier 2015-CE-021-AD; Amendment 39-18277; AD 2015-19-15] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd. Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for PILATUS AIRCRAFT LTD. Models PC-12, PC-12/45, and PC-12/47E airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as a malfunction of the universal joint. We are issuing this AD to require actions to address the unsafe condition on these products.

DATES:

This AD is effective November 3, 2015.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of November 3, 2015.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2775; or in person at Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

For service information identified in this AD, contact PILATUS AIRCRAFT LTD, Customer Support Manager, CH-6371 STANS, Switzerland; phone: +41 (0)41 619 33 33; fax: +41 (0)41 619 73 11; email: [email protected]; Internet: http://www.pilatus-aircraft.com. You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for Docket No. FAA-2015-2775.

FOR FURTHER INFORMATION CONTACT:

Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; fax: (816) 329-4090; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to adding an AD that would apply to PILATUS AIRCRAFT LTD. Model PC-12, PC-12/45, and PC-12/47E airplanes. The NPRM was published in the Federal Register on July 14, 2015 (80 FR 40949). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

A case of malfunctioning was reported of a universal joint installed between the control tube assembly and the control column on a PC-12/47E aeroplane.

Investigation determined that the malfunction was caused by an incorrectly manufactured universal joint. Universal joints from the same manufacturing batch were provided to operators between 01 March 2014 and 28 February 2015, and are thus potentially affected.

This condition, if not corrected, could lead to other cases of malfunctioning of a universal joint, possibly resulting in reduced control of the aeroplane.

To address this potential unsafe condition, Pilatus Aircraft Ltd. issued Service Bulletin (SB) No. 27-022 to provide instructions for replacement of the universal joints in the flight controls.

For the reason described above, this AD requires removal from service of the potentially incorrectly manufactured universal joints. The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2015-2775-0002.

Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 40949, July 14, 2015) or on the determination of the cost to the public.

Conclusion

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

• Are consistent with the intent that was proposed in the NPRM (80 FR 40949, July 14, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 40949, July 14, 2015).

Related Service Information Under 1 CFR Part 51

We reviewed PILATUS AIRCRAFT LTD. PILATUS PC-12 Service Bulletin No: 27-022, dated March 17, 2015. The service information describes procedures for replacement of the universal joint on the aileron control system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of the AD.

Costs of Compliance

We estimate that this AD will affect 55 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $1,000 per product.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $69,025 or $1,255 per product.

According to the manufacturer, all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Authority for This Rulemaking

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

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

Regulatory Findings

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

For the reasons discussed above, I certify this AD:

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

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

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

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

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2775; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new AD: 2015-19-15 Pilatus Aircraft Ltd.: Amendment 39-18277; Docket No. FAA-2015-2775; Directorate Identifier 2015-CE-021-AD. (a) Effective Date

This airworthiness directive (AD) becomes effective November 3, 2015.

(b) Affected ADs

None.

(c) Applicability

This AD applies to PILATUS AIRCRAFT LTD. Models PC-12, PC-12/45, and PC-12/47E airplanes, manufacturer serial numbers 244, 307, 409, 646, 1447 through 1450, 1461, 1462, 1466 through 1514, 1516 through 1520, and 1523, certificated in any category.

(d) Subject

Air Transport Association of America (ATA) Code 27: Flight Controls.

(e) Reason

This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as a malfunction of the universal joint. We are issuing this AD to replace defective aileron control system universal joints.

(f) Actions and Compliance

Unless already done, do the following actions in paragraphs (f)(1) and (f)(2) of this AD, to include all subparagraphs.

(1) For airplanes equipped with aileron control system universal joints part number (P/N) 944.61.73.012 or P/N 527.10.12.195, purchased between March 1, 2014, and February 28, 2015; or universal joints installed in service through an aileron control system inspection kit P/N 500.50.12.314, purchased between March 1, 2014, and February 28, 2015, do one of the following actions as applicable:

(i) For airplanes with less than 200 flight cycles since first flight of the airplane or less than 200 flight cycles since installation of an affected universal joint or inspection kit, whichever applies: Within 10 flight cycles after November 3, 2015 (the effective date of this AD) or 3 months after November 3, 2015 (the effective date of this AD), whichever occurs first, replace with a new universal joint P/N 527.10.12.195 purchased after March 1, 2015, and marked with a placard “RT iO” following the Accomplishment Instructions in PILATUS PC-12 Service Bulletin No: 27-022, dated March 17, 2015.

(ii) For airplanes with 200 flight cycles or more since first flight of the airplane or 200 flight cycles or more since installation of an affected universal joint or inspection kit, whichever applies: Within 12 months after November 3, 2015 (the effective date of this AD), replace with a new universal joint P/N 527.10.12.195 purchased after March 1, 2015, and marked with a placard “RT iO” following the Accomplishment Instructions in PILATUS PC-12 Service Bulletin No: 27-022, dated March 17, 2015.

(iii) For all airplanes where total flight cycles are not tracked: The conversion formula is one flight cycle equals one flight hour.

(2) For all airplanes: After November 3, 2015 (the effective date of this AD), do not install the following parts on any airplane after the modification of the airplane as required in paragraphs (f)(1)(i) and (f)(1)(ii) of this AD or any airplane that does not have an affected part installed:

(i) A universal joint P/N 944.61.73.012 or P/N 527.10.12.195 (except for a P/N 527.10.12.195 marked with a placard “RT iO”).

(ii) Inspection kit P/N 500.50.12.314 purchased between March 1, 2014, and February 28, 2015.

(g) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; fax: (816) 329-4090; email: [email protected] Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(3) Reporting Requirements: For any reporting requirement in this AD, a federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

(h) Related Information

Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2015-0111, dated June 16, 2015, for related information. The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2015-2775-0002.

(i) Material Incorporated by Reference

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

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

(i) PILATUS PC-12 Service Bulletin No: 27-022, dated March 17, 2015.

(ii) Reserved.

(3) For PILATUS AIRCRAFT LTD. service information identified in this AD, contact: PILATUS AIRCRAFT LTD, Customer Support Manager, CH-6371 STANS, Switzerland; phone: +41 (0)41 619 33 33; fax: +41 (0)41 619 73 11; email: [email protected]; Internet: http://www.pilatus-aircraft.

(4) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2775.

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

Issued in Kansas City, Missouri, on September 18, 2015. Melvin Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2015-24464 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0494; Directorate Identifier 2014-NM-160-AD; Amendment 39-18275; AD 2015-19-13] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-400 series airplanes. This AD was prompted by reports of inadvertent deployment of a single outboard spoiler during flight. This AD requires replacement of the power control units (PCUs) for the outboard spoilers with upgraded PCUs. We are issuing this AD to prevent leakage of the piston head seal and piston rod seals of the outboard spoiler PCUs, which could result in inadvertent spoiler deployment and reduced controllability of the airplane.

DATES:

This AD becomes effective November 3, 2015.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 3, 2015.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-0494; or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

For service information identified in this AD, contact Bombardier, Inc. Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0494.

FOR FURTHER INFORMATION CONTACT:

Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7318; fax 516-794-5531.

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model DHC-8-400 series airplanes. The NPRM published in the Federal Register on March 24, 2015 (80 FR 15521).

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-22, dated July 16, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model DHC-8-400 series airplanes. The MCAI states:

Although [Canadian] AD CF-2009-26 [dated May 21, 2009 (http://wwwapps3.tc.gc.ca/Saf-Sec-Sur/2/CAWIS-SWIMN/attachment.asp?aiid=CF-2009-26&revid=0&cntr=CF&file=CFCF-2009-26.pdf&type=PDE), which corresponds to FAA AD 2009-25-05, Amendment 39-16124 (74 FR 63574, December 4, 2009)] was issued to mandate the upgrade of the spoiler lift/dump valve, it did not reduce the rate of inadvertent single spoiler deployment occurrences. Further investigation revealed that the outboard spoiler PCUs may also be subject to pressure reversals at the PCU main control valve seal, resulting in leakage at the piston head seal and piston rod seals. If not corrected, this condition may result in [inadvertent spoiler deployment and] reduced controllability of the aeroplane.

This [Canadian] AD mandates the replacement of the existing outboard spoiler PCUs with the upgraded PCUs with re-designed seals for better leakage protection.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-0494-0002.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM (80 FR 15521, March 24, 2015) and the FAA's response to that comment.

Request To Revise Applicability

Horizon Air requested that the applicability of the NPRM (80 FR 15521, March 24, 2015) be revised to specify that the NPRM would only be applicable to airplanes with outboard spoiler PCU part number (P/N) 390700-1007 installed. The commenter noted that the illustrated parts catalog for the Bombardier, Inc. Model DHC-8-400 series airplanes indicates that outboard spoiler PCU P/N 390700-1009 is a direct replacement for P/N 390700-1007, and that these two part numbers are one way interchangeable. The commenter stated that operators who replaced outboard spoiler PCU P/N 390700-1007 with P/N 390700-1009 prior to the effective date of the NPRM might not have recorded the incorporation of Bombardier Service Bulletin 84-27-63, dated October 17, 2013, into their maintenance records and it would be an unnecessary regulatory burden for those operators to go back and record this service information. The Accomplishment Instructions of Bombardier Service Bulletin 84-27-63, dated October 17, 2013, state that the PCU should be replaced using the guidance in the Bombardier, Inc. Model DHC-8-400 Aircraft Maintenance Manual; therefore the actions that would be mandated by the NPRM would have been accomplished.

We agree with the commenter's request based on the information provided by the commenter. We have revised paragraph (c), “Applicability,” of this final rule to specify that only airplanes having certain serial numbers and an outboard spoiler PCU having P/N 390700-1007 installed are affected by the requirements of this final rule.

Conclusion

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

• Are consistent with the intent that was proposed in the NPRM (80 FR 15521, March 24, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 15521, March 24, 2015).

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

Related Service Information Under 1 CFR Part 51

Bombardier, Inc. has issued Service Bulletin 84-27-63, dated October 17, 2013. The service information describes procedures for replacement of the existing outboard spoiler PCUs with upgraded PCUs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

Costs of Compliance

We estimate that this AD affects 82 airplanes of U.S. registry.

We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $27,880, or $340 per product.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2015-0494; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-19-13 Bombardier, Inc.: Amendment 39-18275. Docket No. FAA-2015-0494; Directorate Identifier 2014-NM-160-AD. (a) Effective Date

This AD becomes effective November 3, 2015.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers 4001 and 4003 through 4453 inclusive with an outboard spoiler power control unit (PCU) having part number 390700-1007 installed in the outboard position.

(d) Subject

Air Transport Association (ATA) of America Code 27, Flight Controls.

(e) Reason

This AD was prompted by reports of inadvertent deployment of a single outboard spoiler during flight. We are issuing this AD to prevent leakage of the piston head seal and piston rod seals of the outboard spoiler PCUs, which could result in inadvertent spoiler deployment and reduced controllability of the airplane.

(f) Compliance

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

(g) Replacement of PCUs for the Outboard Spoilers

Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first: Replace the outboard spoiler PCUs with upgraded PCUs having re-designed seals, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-27-63, dated October 17, 2013.

(h) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

(i) Related Information

Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2014-22, dated July 16, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-0494-0002.

(j) Material Incorporated by Reference

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

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

(i) Bombardier Service Bulletin 84-27-63, dated October 17, 2013.

(ii) Reserved.

(3) For service information identified in this AD, contact Bombardier, Inc., Q Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email [email protected]; Internet http://www.bombardier.com.

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

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

Issued in Renton, Washington, on September 16, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2015-24252 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0929; Directorate Identifier 2014-NM-118-AD; Amendment 39-18274; AD 2015-19-12] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 767 airplanes. This AD was prompted by reports that six fasteners may not have been installed in the left and right stringer 37 (S-37) between body stations (BS) 428 and 431 lap splices on certain airplanes. This AD requires a general visual inspection of S-37 lap splices for missing fasteners, and all applicable related investigative and corrective actions. We are issuing this AD to detect and correct missing fasteners, which could result in cracks in the fuselage skin that could adversely affect the structural integrity of the airplane.

DATES:

This AD is effective November 3, 2015.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 3, 2015.

ADDRESSES:

For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0929.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0929; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767 airplanes. The NPRM published in the Federal Register on December 29, 2014 (79 FR 77970). The NPRM was prompted by reports that six fasteners may not have been installed in the left and right S-37 between BS 428 and 431 lap splices on certain airplanes. The NPRM proposed to require a general visual inspection of S-37 lap splices for missing fasteners, and all applicable related investigative and corrective actions. We are issuing this AD to detect and correct missing fasteners, which could result in cracks in the fuselage skin that could adversely affect the structural integrity of the airplane.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 77970, December 29, 2014) and the FAA's response to each comment.

Support for the NPRM (79 FR 77970, December 29, 2014)

Boeing and Debra Abdou supported the NPRM (79 FR 77970, December 29, 2014). FedEx Express explained that the NPRM will not impact them. United Airlines stated that it has no comment on the NPRM.

Request for Credit for Previous Actions

United Parcel Service (UPS) requested that we revise the NPRM (79 FR 77970, December 29, 2014), to clarify that no further actions are required for airplanes that have previously accomplished inspections and corrective actions as specified in Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241), dated February 1, 2013.

UPS explained that, prior to the release of Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013, Boeing had released Boeing Fleet Team Digest article 767-FTD-53-12003, dated September 21, 2012; and Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241), dated February 1, 2013; to address the discrepant condition and provide applicable corrective actions. UPS stated that it has previously accomplished inspections and corrective actions on all affected UPS Model 767-300F series airplanes in accordance with Boeing Fleet Team Digest article 767-FTD-53-12003 dated September 21, 2012, and Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241), dated February 1, 2013. Per Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241), dated February 1, 2013, the following corrective actions are to be accomplished prior to further flight if the affected fasteners are found missing:

• Remove the center row and adjacent fasteners around the missing fastener locations.

• Perform open-hole high frequency eddy current (HFEC) inspection for damages.

• If no damage is found, install BACR15FV6KE* rivets per the Boeing installation drawing.

• If damage is found, repair per the service repair manual section defined in the future service bulletin.

UPS reasoned that, as indicated in Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241), dated February 1, 2013, the additional detailed inspection shown in Figure 2, Step 1, of Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013, is not required to detect damages resulting from the discrepant condition. UPS expressed that, as supported by Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241), dated February 1, 2013, the open-hole HFEC inspection is sufficient for detecting and eliminating damage resulting from the identified unsafe condition. UPS pointed out that standard maintenance procedures ensure that the external and internal areas accessed and disturbed during accomplishment of the repair are restored to normal configuration. Furthermore, UPS explained that supplemental internal and external inspections of the affected area are accomplished per UPS maintenance program as specified in Boeing Maintenance Planning Document Items 53-460-00, 53-648-00, 53-800-00, and 53-820-00.

We disagree to provide credit for certain actions required by this AD if those actions were performed before the effective date of this AD using Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241) dated February 1, 2013. It is possible that individual instructions provided to the specific operator via Boeing Message TBC-UPS-13-0004-01B (Service Request 1-2412169241), dated February 1, 2013, may have different instructions than those specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013. However, under the provisions of paragraph (i) of this AD, we will consider requests for approval of credit for certain actions if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety. We have made no changes to this AD in this regard.

Effect of Winglets on AD

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST01920SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/59027f43b9a7486e86257b1d006591ee/$FILE/ST01920SE.pdf) does not affect the actions specified in the NPRM (79 FR 77970, December 29, 2014). We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) and added new paragraph (c)(2) to this AD to state that installation of STC ST01920SE does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Related Service Information Under 1 CFR Part 51

Boeing has issued Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013. The service information describes procedures for an external general visual inspection of the S-37 lap splice for missing fasteners, detailed and open-hole inspections of the skin for any crack, corrosion, or other discrepancy; determining if the crack, corrosion, or other discrepancy is within the repair limits, and repairing. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

Conclusion

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 77970, December 29, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 77970, December 29, 2014).

Costs of Compliance

We estimate that this AD affects 23 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    General visual inspection 1 work-hour × $85 per hour = $85 $0 $85 $1,955

    We estimate the following costs to do any necessary inspections/installations that would be required based on the results of the required inspection. We have no way of determining the number of aircraft that might need these inspections/installations:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Detailed and HFEC inspections and fastener installation 13 work-hours × $85 per hour = $1,105 * $1,105 * All parts that are required are supplied by the operator. This cost is minimal, and we have no way to determine what the operators would pay for these parts.

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

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-19-12 The Boeing Company: Amendment 39-18274; Docket No. FAA-2014-0929; Directorate Identifier 2014-NM-118-AD. (a) Effective Date

    This AD is effective November 3, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013.

    (2) Installation of Supplemental Type Certificate (STC) [ST01920SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/59027f43b9a7486e86257b1d00659v1ee/$FILE/ST01920SE.pdf) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by reports that six fasteners may not have been installed in the left and right stringer 37 (S-37) between body stations (BS) 428 and 431 lap splices on certain airplanes. We are issuing this AD to detect and correct missing fasteners, which could result in cracks in the fuselage skin that could adversely affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Inspections, Related Investigative Actions, and Corrective Actions

    Except as provided by paragraph (h)(2) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013: Do an external general visual inspection of the S-37 lap splice for missing fasteners, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013, except as provided by paragraph (h)(1) of this AD. Do all applicable related investigative and corrective actions before further flight.

    (h) Exceptions to Service Information Specifications

    (1) Although Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013, specifies to contact Boeing for repair instructions, and specifies that action as “RC” (Required for Compliance), this AD requires repair before further flight using a method approved in accordance with the procedures specified in paragraph (i)(1) of this AD.

    (2) Where Paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) Except as required by paragraph (h)(1) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.

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

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

    (j) Related Information

    For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 767-53A0251, dated August 7, 2013.

    (ii) Reserved.

    (3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on September 11, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24146 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2466; Directorate Identifier 2015-CE-018-AD; Amendment 39-18273; AD 2015-19-11] RIN 2120-AA64 Airworthiness Directives; Piaggio Aero Industries S.p.A. Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for Piaggio Aero Industries S.p.A. Model P-180 airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as the need to restore the safe fatigue life of the bulkhead structure. We are issuing this AD to require actions to address the unsafe condition on these products.

    DATES:

    This AD is effective November 3, 2015.

    The Director of the Federal Register approved the incorporation by reference of certain publication listed in the AD as of November 3, 2015.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2466; or in person at Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    For service information identified in this AD, contact PIAGGIO AERO INDUSTRIES S.p.A, Airworthiness Office, Viale Generale Disegna,1 - 17038 Villanova d'Albenga, Savona, Italy; telephone: +39 010 6481800; fax: +39 010 6481374; email: [email protected]; Internet: www.piaggioaerospace.it/en/customer-support#care. You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for Docket No. FAA-2015-2466.

    FOR FURTHER INFORMATION CONTACT:

    Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to certain Piaggio Aero Industries S.p.A. Model P-180 airplanes. The NPRM was published in the Federal Register on July 6, 2015 (80 FR 38406). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

    In 1997, Piaggio Aero Industries S.p.A (PAI) developed a modification of the forward pressurized bulkhead, published through PAI Service Bulletin (SB) 80-0081, aiming to restore the safe fatigue life of the bulkhead structure.

    Consequently, ENAC Italy (formerly RAI) issued Prescrizione di Aeronavigabilita (PA) 97-148 to require compliance with this SB.

    After RAI PA 97-148 was issued, PAI issued SB 80-0081 Revision 2 to provide improved instructions for specific serial numbers. Prompted by this development, EASA issued AD 2010-0146 superseding PA 97-148 and requiring accomplishment of instruction of PAI issued SB 80-0081 Revision 2.

    After that AD was issued, PAI issued SB 80-0081 Revision 3 to make the instructions for inspection (and, depending on findings, rework/reinforcement) applicable to all aeroplanes.

    For the reasons described above, this AD retains the requirements of EASA AD 2010-0146, which is superseded, requires inspection and, depending on findings, reinforcement of the pressurized bulkhead structure on extended population of aeroplanes. This AD also specifies that certain aeroplanes modified in accordance with SB 80-0081 up to Revision 2 need to be inspected and, depending on findings, reinforced as required by this AD.

    The MCAI can be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-2466-0002.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 38406, July 6, 2015) or on the determination of the cost to the public.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (80 FR 38406, July 6, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 38406, July 6, 2015).

    Related Service Information Under 1 CFR Part 51

    We reviewed PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015. The service information describes procedures for inspection and, depending on findings, rework/reinforcement of the bulkhead. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of the AD.

    Costs of Compliance

    We estimate that this AD will affect 28 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

    Based on these figures, we estimate the cost of this AD on U.S. operators to be $2,380, or $85 per product.

    In addition, we estimate that any necessary follow-on actions will take about 88 work-hours and require parts costing $30,000, for a cost of $37,480 per product. We have no way of determining the number of products that may need these actions.

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this AD:

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

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

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

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

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2466; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new AD: 2015-19-11 PIAGGIO AERO INDUSTRIES S.p.A: Amendment 39-18273; Docket No. FAA-2015-2466; Directorate Identifier 2015-CE-018-AD. (a) Effective Date

    This airworthiness directive (AD) becomes effective November 3, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to PIAGGIO AERO INDUSTRIES S.p.A P-180 Model P-180 airplanes, serial numbers (S/N) 1004 through 1033, certificated in any category.

    (d) Subject

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

    (e) Reason

    This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as the need to restore the safe fatigue life of the bulkhead structure. We are issuing this AD to correct the safe fatigue life of the airplane.

    (f) Actions and Compliance

    (1) Unless already done, do the actions in paragraphs (f)(2) through (f)(4) of this AD at whichever of the following compliance times occurs later:

    (i) Within 1,500 hours time-in-service (TIS) after November 3, 2015 (the effective date of this AD), but not to exceed 6,000 hours total hours TIS on the airplane; or

    (ii) Within 200 hours TIS after November 3, 2015 (the effective date of this AD) or 6 months after November 3, 2015 (the effective date of this AD), whichever occurs first.

    (2) Inspect (visually or using a standard endoscope) the forward pressurized bulkhead to verify presence of bulkhead reinforcement following Part A1 of the Accomplishment Instructions of PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015.

    (i) If the inspection results indicate that the reinforcements are properly installed, ascertain (visually or by means of standard endoscope equipment) that there are no cracks or defects. If cracks or defects are identified, before further flight, contact Piaggio Aero Industries at the address specified in paragraph (i)(3) of this AD for an FAA-approved repair scheme, approved specifically for this AD, and incorporate that repair.

    (ii) If the inspection results indicate that the reinforcements are not installed, reinforce the forward pressurized bulkhead following Part A2 of the Accomplishment Instructions of PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015.

    (3) Modify the forward pressurized bulkhead following Part C of the Accomplishment Instructions of PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015.

    (4) This AD allows credit for the actions required in paragraphs (f)(2)(ii) and (f)(3) of this AD if done before November 3, 2015 (the effective date of this AD) following the instructions of PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Original Issue, dated: April 28, 1997; PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 1, dated: May 11, 2010; or PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 2, dated: July 19, 2010.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; email: [email protected] Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

    (2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

    (h) Related Information

    Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2015-0071, dated April 30, 2015; PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Original Issue, dated: April 28, 1997; PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 1, dated: May 11, 2010; and PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 2, dated: July 19, 2010, for related information. The MCAI can be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2015-2466-0002.

    (i) Material Incorporated by Reference

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

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

    (i) PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015.

    (ii) Reserved.

    (3) For PIAGGIO AEROSPACE service information identified in this AD, contact PIAGGIO AERO INDUSTRIES S.p.A, Airworthiness Office, Viale Generale Disegna, 1—17038 Villanova d'Albenga, Savona, Italy; telephone: +39 010 6481800; fax: +39 010 6481374; email: [email protected]; Internet: www.piaggioaerospace.it/en/customer-support#care.

    (4) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2466.

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

    Issued in Kansas City, Missouri, on September 17, 2015. Melvin Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24257 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2012-0503; Directorate Identifier 2011-SW-032-AD Amendment 39-18276; AD 2015-19-14] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters Deutschland GmbH (formerly Eurocopter Deutschland GmbH) (Airbus Helicopters) Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for Airbus Helicopters Model BO-105A, BO-105C, and BO-105S helicopters. This AD requires inspections to detect oil contamination in the main gearbox (MGB). This AD was prompted by initial findings from an accident investigation of a Model BO-105 helicopter, which indicated deterioration of the MGB caused by a contaminated oil supply. The actions of this AD are intended to detect oil contamination in the MGB, which could result in MGB deterioration, MGB failure, and subsequent loss of control of the helicopter.

    DATES:

    This AD is effective November 3, 2015.

    ADDRESSES:

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

    Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to the “Mail” address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2012-0503; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the European Aviation Safety Agency (EASA) AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

    You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, Texas 76177.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the EASA AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Discussion

    On May 11, 2012, at 77 FR 27659, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 to add an AD that would apply to Eurocopter Deutschland GmbH (now Airbus Helicopters) Model BO-105A, BO-105C, and BO-105S helicopters. The NPRM proposed to require inspecting the MGB oil filter and MGB magnetic plug and, if the MGB oil filter or magnetic plug contained metallic fuzz, cleaning the magnetic plug, flushing the main transmission, changing the oil, and performing a ground run. If there was a chip in the MGB oil filter or MGB magnetic plug, the NPRM proposed replacing the main transmission with an airworthy main transmission and cleaning the oil cooler and oil lines. The NPRM proposed repeating the MGB magnetic plug inspection every 10 hours time-in-service (TIS) and repeating the MGB oil filter inspection every 100 hours TIS.

    The NPRM was prompted by AD No. 2011-0091, dated May 18, 2011, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Model BO105 A, BO105 C, BO105 D, and BO105S helicopters. EASA AD No. 2011-0091 requires an inspection of the MGB magnetic plug every 10 flight hours and an inspection of the Mann oil filter every 100 flight hours.

    Actions Since NPRM Was Issued

    Since we issued the NPRM, EASA superseded AD No. 2011-0091 and issued AD No. 2014-0230, dated October 21, 2014, to provide different inspection intervals if an improved Purolator oil filter is installed. After reviewing the EASA AD, we have determined that the actions should address installation of a Purolator oil filter and that the AD should only apply if a certain part-numbered Mann or Purolator oil filter is installed. The AD also increases the inspection interval if a Purolator oil filter is installed.

    Comments

    We gave the public the opportunity to comment on the NPRM. The following presents the one comment received on the NPRM and the FAA's response to the comment.

    Request

    The commenter, Timberland Logging, requested that the wording be clarified so that the AD would require an inspection of the magnetic plug only and not the chip detector. The commenter noted that the term “magnetic plug/chip detector” in the NPRM implies that the 10-hour inspection applies to both the magnetic plug and the chip detector. The commenter stated that the chip detector will activate a warning light on the pilot's caution panel with any accumulation of fuzz or chips.

    We agree that the wording “magnetic plug/chip detector” is confusing; therefore, we have revised the wording to remove “chip detector” and only refer to the “magnetic plug.”

    FAA's Determination

    These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for the changes previously described. These changes are consistent with the intent of the proposals in the NPRM, and will not increase the economic burden on any operator nor increase the scope of this AD.

    Differences Between This AD and the EASA AD

    The EASA AD applies to Model BO105D helicopters; this AD does not because this model is not type certificated in the U.S. The EASA AD allows for a grace period between checking the magnetic plug by +10 hours TIS. This AD does not allow the grace period.

    Related Service Information

    Airbus Helicopters issued Alert Service Bulletin (ASB) No. ASB B0105-10-125, Revision 3, dated May 27, 2014 (ASB BO105-10-125), to specify repetitive inspections of the magnetic plug and oil filter with different inspection intervals based upon what type of oil filter is installed. Eurocopter (now Airbus Helicopters) Service Bulletin B0105-10-126, Revision 1, dated August 6, 2013 (ASB B0105-10-126), introduces an improved oil filter, Purolator part number (P/N) 1740001-13. Eurocopter states that Mann oil filter P/N 6140063321 will not be available in the future and will be replaced by a new oil filter provided by Purolator. Installation of the Purolator oil filter increases the inspection interval of the magnetic plug from 10 flight hours to 50 flight hours and increases the inspection interval of the oil filter from 100 flight hours to 600 flight hours.

    Costs of Compliance

    We estimate that this AD will affect 68 helicopters of U.S. Registry.

    We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work hour. We estimate 2 work hours to inspect the oil filter and chip detector at an estimated $170 per helicopter and $11,560 for the fleet per inspection cycle. We estimate 40 hours to replace a transmission with a required parts cost of $225,000 for a total cost of $228,400.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-19-14 Airbus Helicopters Deutschland GmbH (AHD) (formerly Eurocopter Deutschland GmbH) Helicopters: Amendment 39-18276; Docket No. FAA-2012-0503; Directorate Identifier 2011-SW-032-AD. (a) Applicability

    This AD applies to Model BO-105A, BO-105C, and BO-105S helicopters with a Mann oil filter part number (P/N) 6140063321 or a Purolator oil filter P/N 1740001-13, installed, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as deterioration of the main gearbox (MGB) caused by oil contamination. This condition could result in MGB failure and subsequent loss of control of the helicopter.

    (c) Effective Date

    This AD becomes effective November 3, 2015.

    (d) Compliance

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

    (e) Required Actions

    (1) Within 100 hours time-in-service (TIS) or at the next MGB magnetic plug or chip detector inspection, whichever occurs first, and thereafter at intervals not to exceed 100 hours TIS if a Mann oil filter is installed or 600 hours TIS if a Purolator oil filter is installed, clean and inspect the MGB oil filter for chips and the MGB magnetic plug for fine particles (metallic fuzz) or chips. A “chip” is a solid piece of metal but not metallic fuzz.

    (i) If there are no chips on the MGB oil filter or on the magnetic plug, and the metallic fuzz covers less than 25% of the magnetic plug, clean the magnetic plug.

    (ii) If there are no chips on the MBG oil filter or on the magnetic plug, but the metallic fuzz covers 25% or more of the magnetic plug, flush the main transmission, change the oil, perform a ground run for 15 minutes at the flight-idle power setting, and then re-inspect the MGB oil filter and magnetic plug for a chip and the quantity of metallic fuzz on the metallic plug.

    (iii) If there is a chip on the MGB oil filter or on the magnetic plug, or, after complying with paragraph (e)(1)(ii) of this AD, metallic fuzz covers 25% or more of the magnetic plug, replace the main transmission with an airworthy main transmission and clean the oil cooler and oil lines.

    (2) At intervals not to exceed 10 hours TIS if a Mann oil filter is installed and 50 hours TIS if a Purolator oil filter, inspect the magnetic plug for a chip or metallic fuzz in accordance with the requirements of paragraph (e)(1) of this AD.

    (3) If a Purolator oil filter has been installed on a helicopter, do not install a Mann oil filter on that helicopter.

    (f) Special Flight Permit

    A special flight permit will be permitted for up to 10 hours TIS for the purpose of operating the aircraft to a maintenance facility only.

    (g) Alternative Methods of Compliance (AMOCs)

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

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

    (h) Additional Information

    (1) Airbus Helicopters Alert Service Bulletin No. ASB BO105-10-125, Revision 3, dated May 27, 2014, and Eurocopter Service Bulletin B0105-10-126, Revision 1, dated August 6, 2013, which are not incorporated by reference, contain additional information about the subject of this AD. For service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub.You may review a copy of the service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, Texas 76177.

    (2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD 2014-0230, dated October 21, 2014. You may view the EASA AD on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2012-0503.

    (i) Subject

    Joint Aircraft Service Component (JASC) Code: 6320 Main Gear Box.

    Issued in Fort Worth, Texas, on September 17, 2015. James A. Grigg, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24256 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2207; Directorate Identifier 2015-CE-003-AD; Amendment 39-18272; AD 2015-19-10] RIN 2120-AA64 Airworthiness Directives; M7 Aerospace LLC Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 97-02-02 for certain Models SA26-AT, SA26-T, SA226-AT, SA226-T, SA226-T(B), SA226-TC, SA227-AC (C-26A), SA227-AT, SA227-BC (C-26A), SA227-CC, SA227-DC (C-26B), and SA227-TT airplanes. AD 97-02-02 required applying torque to the control column pitch bearing attaching nuts, inspecting the bearing assembly, inspecting the elevator control rod end bearing retainer/dust seals, and replacing or installing new parts as necessary. This new AD requires inspecting for movement and correct torque of the elevator control pivot bearing, inspecting the elevator control rod for damage and correct configuration, and replacing parts as necessary. This AD also requires a 10,000-hour time-in-service (TIS) repetitive replacement of the control column pivot bearing and elevator control rod bolt and requires replacement of the control column pivot bearing with the improved design by 35,000 hours TIS. This AD was prompted by loss of elevator control due to failure of the bolt attaching the elevator control rod to the elevator walking beam under the cockpit floor. We are issuing this AD to correct the unsafe condition on these products.

    DATES:

    This AD is effective November 3, 2015.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 3, 2015.

    ADDRESSES:

    For service information identified in this AD, contact M7 Aerospace LLC, 10823 NE Entrance Road, San Antonio, Texas 78216; phone: (210) 824-9421; fax: (210) 804-7766; Internet: http://www.elbitsystems-us.com; email: [email protected] You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call 816-329-4148. It is also available on the Internet at http://www.regulations.gov by searching for Docket No. FAA-2015-2207.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.govby searching for and locating Docket No. FAA-2015-2207; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Andrew McAnaul, Aerospace Engineer, FAA, ASW-143 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 97-02-02, Amendment 39-9886 (62 FR 2552, January 17, 1997), (“AD 97-02-02”). AD 97-02-02 applied to certain M7 Aerospace LLC Models SA26-AT, SA26-T, SA226-AT, SA226-T, SA226-T(B), SA226-TC, SA227-AC (C-26A), SA227-AT, SA227-BC (C-26A), SA227-CC, SA227-DC (C-26B), and SA227-TT airplanes. The NPRM published in the Federal Register on June 16, 2015 (80 FR 34326). The NPRM was prompted by an operator experiencing complete loss of elevator control due to failure of the bolt attaching the elevator control rod to the elevator walking beam under the cockpit floor. A follow-on inspection of the operator's fleet revealed a variety of hardware installed. Some hardware matched the illustrated parts catalog (IPC), some matched the AD 97-02-02 configuration, and some matched neither of those configurations.

    When AD 97-02-02 was issued, the IPC was never revised to match the hardware configuration called out in AD 97-02-02 or in the service information associated with that AD. Because of the conflict between the AD and the IPC configurations, an airplane that was in compliance with the requirements of AD 97-02-02 could have had an incorrect hardware configuration installed during routine maintenance after complying with the AD. The IPC has been updated and corrected by M7 Aerospace, LLC.

    Also, since we issued AD 97-02-02, the manufacturer developed an improved design for the control column pivot bearing and support structure that terminates the repetitive torque check and replacement of control column pivot bearings.

    The manufacturer also issued new service information that adds the 10,000-hour TIS repetitive replacement of the control column pivot bearing that is in the airworthiness limitations section (ALS) of the airplane maintenance manual (AMM) and (if this revision is mandated) requires the replacement of the pivot bearing with the improved design by 35,000 hours TIS that is in the supplemental inspections document (SID). Issuance of the new service information, the revised IPC, and this AD will eliminate the conflicts between AD 97-02-02, the service information, the IPC, the ALS, and the SID.

    The NPRM (80 FR 34326, June 16, 2015) proposed to require inspecting for movement and correct torque of the elevator control pivot bearing, inspecting the elevator control rod for damage and correct configuration, and replacing parts as necessary. The NPRM also proposed to require a 10,000-hour TIS repetitive replacement of the control column pivot bearing and elevator control rod bolt and require replacement of the control column pivot bearing with the improved design by 35,000 hours TIS. Replacing the original control column pivot bearing with the improved design terminates the requirement to repetitively replace the original control column pivot bearing every 10,000 hours. We are issuing this AD to correct the unsafe condition on these products.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 34326, June 16, 2015) or on the determination of the cost to the public.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (80 FR 34326, June 16, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 34326, June 16, 2015).

    Relevant Service Information Under 1 CFR 51

    We reviewed M7 Aerospace SA26 Series Service Bulletin No. 26-27-30-046 R2, dated December 5, 2014; Fairchild Aircraft SA26 Series Service Bulletin No. 26-27-30-047, dated June 16, 1997; M7 Aerospace SA226 Series Service Bulletin No. 226-27-060 R2, dated December 5, 2014; Fairchild Aerospace SA226 Series Service Bulletin No. 226-27-061, dated June 16, 1997; M7 Aerospace SA227 Series Service Bulletin, No. 227-27-041 R2, dated December 5, 2014; Fairchild Aircraft SA227 Series Service Bulletin No. 227-27-042, dated June 16, 1997; M7 Aerospace LLC SA227 Series Commuter Category Service Bulletin No. CC7-27-010 R2, dated December 5, 2014; and Fairchild Aircraft SA227 Series Commuter Category Service Bulletin No. CC7-27-011, dated June 16, 1997. The service information describes procedures for inspecting for movement and correct torque of the elevator control pivot bearing, inspecting the elevator control rod for damage, and replacing parts as necessary. The service information also adds a repetitive replacement of the control column pivot bearings at 10,000 hours TIS and requires replacement of the control column pivot bearing with the improved design within 35,000 hours TIS. This information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 360 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspection of torque on the control column pivot bearing 2 work-hours × $85 per hour = $170 Not applicable $170 $61,200 Control column pivot bearing replacement 8 work-hours × $85 per hour = $680 $300 980 352,800 New designed control column pivot bearing replacement 20 work-hours × $85 per hour = $1,700 $2,450 4,150 1,494,000 Elevator rod end bolt replacement 4 work-hours × $85 per hour = $340 $10 350 126,000
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 97-02-02, Amendment 39-9886 (62 FR 2552, January 17, 1997), and adding the following new AD: 2015-19-10 M7 Aerospace: Amendment 39-18272; Docket No. FAA-2015-2207; Directorate Identifier 2015-CE-003-AD. (a) Effective Date

    This AD is effective November 3, 2015.

    (b) Affected ADs

    This AD supersedes AD 97-02-02, Amendment 39-9886 (62 FR 2552, January 17, 1997).

    (c) Applicability

    This AD applies to M7 Aerospace LLC Models SA26-AT, SA26-T, SA226-AT, SA226-T, SA226-T(B), SA226-TC, SA227-AC (C-26A), SA227-AT, SA227-BC (C-26A), SA227-CC, SA227-DC (C-26B), SA227-TT, all serial numbers, certificated in any category.

    (d) Subject

    Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 27, Flight Controls.

    (e) Unsafe Condition

    AD 97-02-02 (62 FR 2552, January 17, 1997) (“AD 97-02-02”) resulted from reports of Fairchild SA227 series airplanes losing pitch control in-flight. This supersedure was prompted by an operator experiencing complete loss of elevator control because of failure of the bolt attaching the elevator control rod to the elevator walking beam under the cockpit floor. We are issuing this AD to prevent loss of pitch control, which if not corrected, could result in loss of airplane control.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done. Models SA227-CC and SA227-DC, serial numbers 892, 893, and 895 and up, have the revised (modified) configuration. Since those airplanes are already in compliance, they do not have to do the actions in paragraphs (h) or (i) of this AD, including all subparagraphs. Those airplanes must still do the actions required in paragraph (j) of this AD, including all subparagraphs.

    (g) Credit for Actions Accomplished in Accordance With Previous Service Information

    This AD allows credit for the control column pivot bearing torque check and initial replacement required in paragraph (i)(2) of this AD and the elevator rod bolt inspection and initial replacement required in paragraphs (j)(1) and (j)(3)(i) of this AD, if done before November 3, 2015 (the effective date of this AD), following the procedures specified in the Accomplishment Instructions of the applicable service information listed in paragraphs (g)(1) through (g)(4) of this AD:

    (1) M7 Aerospace SA227 Commuter Category Service Bulletin No. CC7-27-010, original issue or revision 1.

    (2) M7 Aerospace SA227 Series Service Bulletin No. 227-27-041, original issue or revision 1.

    (3) M7 Aerospace SA226 Series Service Bulletin No. 226-27-060, original issue or revision 1.

    (4) M7 Aerospace SA26 Series Service Bulletin No. 26-27-30-046, original issue or revision 1.

    (h) Control Column Pivot Bearing Revised (Modified) Configuration

    (1) On or before the airplane accumulates a total of 35,000 hours time-in-service (TIS) or within the next 1,000 hours TIS after November 3, 2015 (the effective date of this AD), whichever occurs later, you must revise (modify) the control column pivot bearing configuration with the improved design. Use the applicable service information listed in paragraphs (h)(1)(i) through (h)(1)(iv) of this AD. Revising (modifying) the configuration of the control column pivot bearing with the improved design terminates the actions for paragraph (i) of this AD, including all subparagraphs, but you must still complete the required actions in paragraph (j) of this AD, including all subparagraphs.

    (i) Fairchild Aircraft SA26 Series Service Bulletin No. 26-27-30-047, dated June 16, 1997;

    (ii) Fairchild Aircraft SA226 Series Service Bulletin No. 226-27-061, dated June 16, 1997;

    (iii) Fairchild Aircraft SA227 Series Service Bulletin No. 227-27-042, dated June 16, 1997; or

    (iv) Fairchild Aircraft SA227 Series Commuter Category No. CC7-27-011, dated June 16, 1997.

    (2) You may at any time before 35,000 hours TIS revise (modify) the control column pivot bearing configuration with the improved design to terminate the repetitive replacement of the original control column pivot bearing using the applicable service information listed in paragraphs (h)(1)(i) through (h)(1)(iv) of this AD. This action terminates the requirements of paragraph (i) of this AD, including all subparagraphs, but you must still complete the required actions in paragraph (j) of this AD, including all subparagraphs.

    (i) Torque Check or Replacement of the Control Column Pivot Bearing

    (1) Use the service information, as applicable, listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD to do a control column pivot bearing torque check or replacement at the applicable compliance times in paragraph (i)(2) or (i)(3) of this AD, including all subparagraphs:

    (i) M7 Aerospace LLC SA26 Series Service Bulletin No. 26-27-30-046 R2, dated December 5, 2014;

    (ii) M7 Aerospace LLC SA226 Series Service Bulletin No. 226-27-060 R2, dated December 5, 2014;

    (iii) M7 Aerospace LLC SA227 Series Service Bulletin No. 227-27-041 R2, dated December 5, 2014; or

    (iv) M7 Aerospace LLC SA227 Series Commuter Category Service Bulletin No. CC7-27-010 R2, December 5, 2014.

    (2) For airplanes where the control column pivot bearing has been torque checked or replaced within the last 10,000 hours TIS before November 3, 2015 (the effective date of this AD) using the applicable service information listed in paragraph (g)(1) through (g)(4) or (i)(1)(i) through (i)(1)(iv) of this AD, do one of the following actions:

    (i) Within the next 10,000 hours TIS after the last control column pivot bearing replacement or within the next 1,000 hours TIS after November 3, 2015 (the effective date of this AD), whichever occurs later, and repetitively thereafter every 10,000 hours TIS, replace the control column pivot bearing following paragraph 2.B. of the Accomplishment Instructions of the applicable service information listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD; or

    (ii) Within the next 10,000 hours TIS after the last control column pivot bearing replacement or within the next 1,000 hours TIS after November 3, 2015 (the effective date of this AD), whichever occurs later, revise (modify) the control column pivot bearing configuration with the improved design using the applicable service information listed in paragraphs (h)(1)(i) through (h)(1)(iv) of this AD. Revising (modifying) the configuration of the control column pivot bearing with the improved design terminates the repetitive replacement of the original control column pivot bearing. No other actions are required for paragraph (i) of this AD, including all subparagraphs, but you must still complete the actions in paragraph (j) of this AD, including all subparagraphs.

    (3) For airplanes where the control column pivot bearing has not been torque checked or replaced within the last 10,000 hours TIS before November 3, 2015 (the effective date of this AD) using the applicable service information listed in paragraphs (g)(1) through (g)(4) or (i)(1)(i) through (i)(1)(iv) of this AD, within the next 200 hours TIS after November 3, 2015 (the effective date of this AD), torque check the control column pivot bearing following paragraph 2.A. of the service information listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD.

    (4) If nut movement occurs during the torque check required in paragraph (i)(3) of this AD, do one of the following actions:

    (i) Before further flight and repetitively thereafter at intervals not to exceed every 10,000 hours TIS, replace the control column pivot bearing following paragraph 2.B. of the Accomplishment Instructions of the applicable service information listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD; or

    (ii) Before further flight, revise (modify) the control column pivot bearing configuration with the improved design using the applicable service information listed in paragraphs (h)(1)(i) through (h)(1)(iv) of this AD. Revising (modifying) the configuration of the control column pivot bearing with the improved design terminates the repetitive replacement of the original control column pivot bearing. No other actions are required for paragraph (i) of this AD, including all subparagraphs, but you must still complete the actions in paragraph (j) of this AD, including all subparagraphs.

    (5) If no nut movement occurs during the torque check required in paragraph (i)(3) of this AD, do one of the following actions:

    (i) Within the next 1,000 hours TIS after November 3, 2015 (the effective date of this AD), replace the control column pivot bearing following paragraph 2.B. of the Accomplishment Instructions of the applicable service information listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD; or

    (ii) Within the next 1,000 hours TIS after November 3, 2015 (the effective date of this AD), revise (modify) the control column pivot bearing configuration with the improved design using the applicable service information listed in paragraphs (h)(1)(i) through (h)(1)(iv) of this AD. Revising (modifying) the configuration of the control column pivot bearing with the improved design terminates the repetitive replacement of the original control column pivot bearing.

    (j) Inspect the Elevator Control Rod Ends and Hardware

    (1) Within the next 200 hours TIS after November 3, 2015 (the effective date of this AD), inspect the elevator control rod ends and hardware for wear, creasing, or other damage and verify the elevator rod bolt and attachment hardware for correct configuration following paragraph 2.D. of the Accomplishment Instructions of the applicable service information listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD.

    (2) If any damage is found during the inspection required in paragraph (j)(1) of this AD or the elevator rod bolt and attachment hardware does not match the correct configuration, before further flight, replace the elevator rod bolt, rod ends, and associated hardware following paragraph 2.D. of the Accomplishment Instructions of the applicable service information listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD.

    (3) Replace the elevator rod end bolt and associated hardware following paragraph 2.D. of the Accomplishment Instructions of the applicable service information listed in paragraphs (i)(1)(i) through (i)(1)(iv) of this AD at whichever of the following compliance times applies and repetitively thereafter at intervals not to exceed 10,000 hours TIS:

    (i) For airplanes where the elevator rod bolt has been replaced: Within the next 10,000 hours TIS after the last elevator rod bolt replacement or within the next 1,000 hours TIS after November 3, 2015 (the effective date of this AD), whichever occurs later; or

    (ii) For airplanes where the elevator rod bolt has never been replaced: Within the next 200 hours TIS after November 3, 2015 (the effective date of this AD).

    (k) Alternative Methods of Compliance (AMOCs)

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

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

    (l) Related Information

    (1) For more information about this AD, contact Andrew McAnaul, Aerospace Engineer, FAA, ASW-143 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370; email: [email protected]

    (m) Material Incorporated by Reference

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

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

    (i) M7 Aerospace LLC SA26 Series Service Bulletin No. 26-27-30-046 R2, dated December 5, 2014.

    (ii) M7 Aerospace LLC SA226 Series Service Bulletin No. 226-27-060 R2, dated December 5, 2014.

    (iii) M7 Aerospace LLC SA227 Series Service Bulletin No. 227-27-041 R2, dated December 5, 2014.

    (iv) M7 Aerospace LLC SA227 Series Commuter Category Service Bulletin No. CC7-27-010 R2, December 5, 2014.

    (v) Fairchild Aircraft SA26 Series Service Bulletin No. 26-27-30-047, dated June 16, 1997.

    (vi) Fairchild Aircraft SA226 Series Service Bulletin No. 226-27-061, dated June 16, 1997.

    (vii) Fairchild Aircraft SA227 Series Service Bulletin No. 227-27-042, dated June 16, 1997.

    (viii) Fairchild Aircraft SA227 Series Commuter Category No. CC7-27-011, dated June 16, 1997.

    (3) For service information identified in this AD, contact M7 Aerospace LLC, 10823 NE Entrance Road, San Antonio, Texas 78216; phone: (210) 824-9421; fax: (210) 804-7766; Internet: http://www.elbitsystems-us.com; email: [email protected]

    (4) You may view this service information at FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call 816-329-4148.

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

    Issued in Kansas City, Missouri, on September 17, 2015. Melvin Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24249 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0773; Directorate Identifier 2014-NM-068-AD; Amendment 39-18271; AD 2015-19-09] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 787-8 airplanes. This AD was prompted by reports of a potential latent failure of the fuel shutoff valve actuator circuitry, which was not identified during actuator development. This AD requires replacing certain engine and auxiliary power unit (APU) fuel shutoff valve actuators with new actuators, and also requires revising the maintenance or inspection program to include a new airworthiness limitation into the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness (ICA). We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.

    DATES:

    This AD is effective November 3, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 3, 2015.

    ADDRESSES:

    For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0773.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0773; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on November 17, 2014 (79 FR 68384). The NPRM was prompted by reports of a potential latent failure of the fuel shutoff valve actuator circuitry, which was not identified during actuator development. The NPRM proposed to require replacing certain engine and APU fuel shutoff valve actuators with new actuators, and also proposed revising the maintenance or inspection program to include a new airworthiness limitation into the ALS of the ICA. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and APU, which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.

    Record of Ex Parte Communication

    In preparation of AD actions such as NPRMs and immediately adopted rules, it is the practice of the FAA to obtain technical information and information on operational and economic impacts from design approval holders and aircraft operators. We discussed certain comments addressed in this final rule in a teleconference with Airlines for America (A4A) and other members of the aviation industry. All of the comments discussed during this teleconference that are relevant to this final rule are addressed in this final rule in response to comments submitted by other commenters. A discussion of this contact can be found in the rulemaking docket at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0773.

    Clarification of Certain Terminology

    Throughout the preamble of this final rule, commenters may have used the terms “fuel shutoff valve” and “fuel spar valve” interchangeably. Both terms refer to the same part. In our responses to comments, we have used the term “fuel shutoff valve.” The term “fuel spar valve” is more commonly used in airplane maintenance documentation and, therefore, we have used that term in figure 1 to paragraph (g) of this AD.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 68384, November 17, 2014) and the FAA's response to each comment.

    Request To Withdraw the NPRM (79 FR 68384, November 17, 2014)

    All Nippon Airways (ANA) stated that the NPRM (79 FR 68384, November 17, 2014) proposed a revision of the maintenance program or inspection program that added an inspection every 10 days. ANA explained that it believes this action is not necessary. ANA stated that it has used fuel shutoff valve actuators having part number (P/N) 53-0037 on its airplanes since their delivery, and that these fuel shutoff valve actuators have accumulated 1,607,870 flight hours. ANA stated that it has removed a total of 9 fuel shutoff valve actuators; however, it has never experienced a stuck micro-switch issue, and has experienced only a motor issue. ANA also stated that it has performed a one-time operational check on 10 airplanes with no findings.

    We infer that the commenter requests that we withdraw the NPRM (79 FR 68384, November 17, 2014). We disagree with the commenter's request. We have determined that an unsafe condition exists that warrants an interim action until the modified actuator that will address the identified unsafe condition is installed. Boeing did not formally comment on whether it considers this issue to be an unsafe condition. We have determined that, without the required interim action, a significant number of flights with a fuel shutoff valve actuator that is failed latently in the open valve position will occur during the affected fleet life. With a failed fuel shutoff valve, if certain fire conditions were to occur, or if extreme engine or APU damage were to occur, or if an engine separation event were to occur during flight, the crew procedures for such an event would not stop the fuel flow to the engine strut and nacelle or APU. The continued flow of fuel could cause an uncontrolled fire or lead to a fuel exhaustion event.

    The FAA regulations require all transport airplanes to be fail safe with respect to engine fire events, and the risk due to severe engine damage events be minimized. Therefore, we require, for each flight, sufficiently operative fire safety systems so that fires can be detected and contained, and fuel to the engine strut and nacelle or APU can be shut off in the event of an engine or APU fire or severe damage.

    The FAA airworthiness standards require remotely controlled powerplant valves to provide indications that the valves are in the commanded position. These indications allow the prompt detection and correction of valve failures. We do not allow dispatch with a known inoperative fuel shutoff valve. Therefore, we are proceeding with the final rule, not because of the higher-than-typical failure rate of the particular valve actuator involved, but instead because the fuel shutoff valve actuator can fail in a manner that also defeats the required valve position indication feature. That failure can lead to a large number of flights occurring on an airplane with a fuel shutoff valve actuator failed in the open position without the operator being aware of the failure. Airworthiness limitations containing required inspections are intended to limit the number of flights following latent failure of the fuel shutoff valve. Issuance of an AD is the appropriate method to correct the unsafe condition. We have not changed this final rule in this regard.

    Request To Extend the Test Interval for the Engine and APU Fuel Shutoff Valve Actuators

    ANA requested that we extend the test interval for the engine and APU fuel shutoff valve actuators from 10 days to 400 flight cycles. ANA stated it does not understand the reason why we proposed a test interval of 10 days, which ANA thinks is too short. ANA stated that, according to its removal data, the earliest actuator removal is at 467 flight hours and 442 flight cycles. ANA explained that the fuel shutoff valve operates only once (open-close) per one cycle; therefore, ANA proposed a test interval of 400 flight cycles, which would be below 442 flight cycles.

    We disagree with the commenter's request to extend the test interval. An increase in the test interval from 10 days to 400 flight cycles would result in at least ten times as many flights at risk of an uncontrollable engine fire. Requiring the test at a 10-day interval has been deemed practical and is similar to inspections on other models that require maintenance action to test the actuator function. We have not changed this AD in this regard.

    Request To Revise Parts Installation Prohibition Paragraph

    ANA requested that we remove the restriction on installing a motor-operated valve actuator having P/N 53-0037 on crossfeed valve and defuel/isolation valve positions. ANA stated that actuator failure in these two positions does not lead to a structural failure or uncontrollable fire condition that is referenced in the unsafe condition.

    We agree with the commenter's request. The vulnerability of the crossfeed system is not as significant as that of the engine/APU fuel feed system. We have revised paragraph (j) of this AD to limit the prohibition on installing a motor-operated valve actuator having P/N 53-0037 to the engine fuel shutoff valve and APU fuel shutoff valve.

    Request To Revise Service Information Identification

    Boeing requested that we correct a reference to unrelated service information specified in figure 1 to paragraph (g) of this AD.

    We disagree with the commenter's request because the NPRM (79 FR 68384, November 17, 2014) identified the correct service information, i.e., Boeing Service Bulletin B787-81205-SB280015-00, Issue 002, dated June 19, 2014. We have not changed this AD in this regard.

    Conclusion

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

    • Are consistent with the intent that was proposed in the NPRM (79 FR 68384, November 17, 2014) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 68384, November 17, 2014).

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Service Bulletin B787-81205-SB280015-00, Issue 002, dated June 19, 2014. The service information describes procedures for replacing the engine and APU fuel shutoff valve actuators. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 6 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on
  • U.S. operators
  • Maintenance program revision 1 work-hour × $85 per hour = $85 $0 $85 $510 Engine and APU fuel shutoff valve actuator replacement 10 work-hours × $85 per hour = $850 0 850 5,100

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-19-09 The Boeing Company: Amendment 39-18271; Docket No. FAA-2014-0773; Directorate Identifier 2014-NM-068-AD. (a) Effective Date

    This AD is effective November 3, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 787-8 airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Unsafe Condition

    This AD was prompted by reports of a potential latent failure of the fuel shutoff valve actuator circuitry, which was not identified during actuator development. We are issuing this AD to detect and correct latent failures of the fuel shutoff valve to the engine and auxiliary power unit (APU), which could result in the inability to shut off fuel to the engine and APU and, in case of certain fires, an uncontrollable fire that could lead to structural failure.

    (f) Compliance

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

    (g) Maintenance or Inspection Program Revision

    Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to add Airworthiness Limitation (AWL) Number 28-AWL-ACT, “Engine and APU Fuel Shutoff Valve (Fuel Spar Valve) Actuator Test,” by incorporating the information specified in figure 1 to paragraph (g) of this AD into the Airworthiness Limitations Section of the Instructions for Continued Airworthiness. This may be accomplished by inserting a copy of Airworthiness Limitation Number 28-AWL-ACT, “Engine and APU Fuel Shutoff Valve (Fuel Spar Valve) Actuator Test,” into the maintenance or inspection program, as applicable. For the airplanes identified in the applicability note of Airworthiness Limitation Number 28-AWL-ACT, “Engine and APU Fuel Shutoff Valve (Fuel Spar Valve) Actuator Test,” the initial compliance time for accomplishing the actions specified in figure 1 to paragraph (g) of this AD is within 10 days after accomplishment of the maintenance or inspection program revision, as applicable, required by this paragraph. When the engine and APU fuel shutoff valve actuators have been replaced as required by paragraph (i) of this AD, the Airworthiness Limitation Number 28-AWL-ACT, “Engine and APU Fuel Shutoff Valve (Fuel Spar Valve) Actuator Test,” required by this paragraph may be removed from the maintenance or inspection program, as applicable.

    Figure 1 to Paragraph (g) of This AD: Engine and APU Fuel Shutoff Valve (Fuel Spar Valve) Actuator Test AWL No. Task Interval Applicability Description 28-AWL-ACT ALI 10 DAYS ALL Engine and APU Fuel Shutoff Valve (Fuel Spar Valve) Actuator Test INTERVAL NOTE: Not required on days when the airplane is not operated. The test must be done before further flight if it has been 10 or more calendar days since the last inspection APPLICABILITY NOTE: This AWL applies to airplanes with Eaton Aerospace Ltd. fuel spar valve actuators having part number 53-0037 installed at the engine or APU fuel shutoff valve location Concern: The fuel spar valve actuator design can result in airplanes operating with a failed fuel spar valve actuator that is not reported. A latently failed fuel spar valve actuator would prevent fuel shutoff to an engine or APU. In the event of certain engine or APU fires, the potential exists for an engine or APU fire to be uncontrollable.
  • Perform the following tests in accordance with Boeing Service Bulletin B787-81205-SB280015-00, Issue 002, dated June 19, 2014.
  • 1. Do PART 1: ENGINE FUEL SPAR VALVE ACTUATOR TEST as described in Boeing Service Bulletin B787-81205-SB280015-00, Issue 002, dated June 19, 2014. a. If the left engine fuel spar valve actuator has part number 53-0037, perform the left engine fuel spar valve actuator test. b. If the right engine fuel spar valve actuator has part number 53-0037, perform the right engine fuel spar valve actuator test. c. If either test fails, repair faults as required (refer to Boeing Airplane Maintenance Manual 28-22-02). 2. Do PART 2: APU FUEL SPAR VALVE ACTUATOR TEST as described in Boeing Service Bulletin B787-81205-SB280015-00, Issue 002, dated June 19, 2014. a. If the APU fuel spar valve actuator has part number 53-0037, perform the APU fuel spar valve actuator test. b. If the test fails, before further flight requiring APU availability, repair faults as required (refer to Boeing Airplane Maintenance Manual 28-25-03). NOTE: Dispatch may be permitted per MMEL 28-25-03 if the APU is not required for flight.
    (h) No Alternative Actions and Intervals

    Except as specified in paragraph (i) of this AD: After accomplishment of the maintenance or inspection program revision required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (k) of this AD.

    (i) Replacement

    Within 36 months after the effective date of this AD, replace the engine and APU fuel shutoff valve actuators having part number (P/N) 53-0037 with P/N 53-0049, in accordance with Part 5 or Part 6, as applicable, of the Accomplishment Instructions of Boeing Service Bulletin B787-81205-SB280015-00, Issue 002, dated June 19, 2014. When all the engine and APU fuel shutoff valve actuators have been replaced as required by this paragraph, Airworthiness Limitation Number 28-AWL-ACT, “Engine and APU Spar Valve Actuator Test,” required by paragraph (g) of this AD may be removed from the maintenance or inspection program, as applicable.

    (j) Parts Installation Prohibition

    As of the effective date of this AD, no person may install on any airplane a motor-operated valve actuator having P/N 53-0037 in the engine or APU fuel shutoff valve location.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

    (3) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(3)(i) and (k)(3)(ii) apply.

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

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

    (l) Related Information

    For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email: [email protected]

    (m) Material Incorporated by Reference

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

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

    (i) Boeing Service Bulletin B787-81205-SB280015-00, Issue 002, dated June 19, 2014.

    (ii) Reserved.

    (3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on September 15, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24145 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
    80 188 Tuesday, September 29, 2015 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3637; Directorate Identifier 2014-NM-219-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model MD-11 and MD-11F airplanes. This proposed AD was prompted by a report of fuel odor in the cabin. Fuel was found leaking from a cracked fuel line shroud in the left cargo compartment equipment tunnel. This proposed AD would require a check for the presence of fuel at the fuel shroud drain; a high frequency eddy current (HFEC) inspection for cracked fuel line shrouds; a pressure test of the drain system of the tail tank fuel shroud and a pressure test of the drain system of the aft fuselage fuel shroud to determine cracking; and corrective actions, if necessary. We are proposing this AD to detect and correct fuel leaking from a cracked fuel line shroud, which could result in fuel accumulation below the cargo compartment floor and consequent increased risk of fire.

    DATES:

    We must receive comments on this proposed AD by November 13, 2015.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC D800-0019, Long Beach, CA 90846-0001; telephone 206-544-5000, extension 2; fax 206-766-5683; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3637.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3637; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Philip Kush, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; telephone: 562-627-5263; fax: 562-627-5210; email: [email protected].

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-3637; Directorate Identifier 2014-NM-219-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We have received a report of fuel odor in the cabin. Fuel was found leaking from a cracked fuel line shroud in the left cargo compartment equipment tunnel. This condition, if not corrected, could result in fuel accumulation below the cargo compartment floor and consequent increased risk of fire.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014. The service information describes procedures for checking for the presence of fuel at the fuel shroud drain; a HFEC inspection for cracked fuel line shrouds; a pressure test of the drain system of the tail tank fuel shroud and a pressure test of the drain system of the aft fuselage fuel shroud to determine cracking; and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously.

    Costs of Compliance

    We estimate that this proposed AD affects 90 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Check for presence of fuel at the fuel shroud drain 2 work-hours × $85 per hour = $170, per inspection cycle $0 $170, per inspection cycle $15,300, per inspection cycle. HFEC Inspection (optional) 5 work-hours × $85 per hour = $425, per inspection cycle 0 $425, per inspection cycle $38,250, per inspection cycle. Pressure Test 3 work-hours × $85 per hour = $255, per inspection cycle 0 $255, per inspection cycle $22,950, per inspection cycle.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2015-3637; Directorate Identifier 2014-NM-219-AD. (a) Comments Due Date

    We must receive comments by November 13, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model MD-11 and MD-11F airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel System.

    (e) Unsafe Condition

    This AD was prompted by a report of fuel odor in the cabin. Fuel was found leaking from a cracked fuel line shroud in the left cargo compartment equipment tunnel. We are issuing this AD to detect and correct fuel leaking from a cracked fuel line shroud, which could result in fuel accumulation below the cargo compartment floor and consequent increased risk of fire.

    (f) Compliance

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

    (g) Check, Inspection, Test, and Corrective Actions

    Do the actions in paragraphs (g)(1) or (g)(2) of this AD, as applicable.

    (1) Except as specified in paragraph (h) of this AD: At the applicable time in Table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014, do the actions in paragraphs (g)(1)(i), (g)(1)(ii), and (g)(1)(iii) of this AD. Before further flight do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014. Repeat the actions thereafter at the applicable time in Table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014.

    (i) Check for the presence of fuel at the fuel shroud drain.

    (ii) Do a high frequency eddy current (HFEC) inspection for cracked fuel line shrouds.

    (iii) Do a pressure test of the drain system of the tail tank fuel shroud and a pressure test of the drain system of the aft fuselage fuel shroud to determine if there is cracking.

    (2) Except as specified in paragraph (h) of this AD: At the applicable time in Table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014, do the actions in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD. Before further flight do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014. Repeat the actions thereafter at the applicable time in Table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014.

    (i) Check for the presence of fuel at the fuel shroud drain.

    (ii) Do a pressure test of the drain system of the tail tank fuel shroud and a pressure test of the drain system of the aft fuselage fuel shroud to determine if there is cracking.

    (h) Exception to the Service Information

    Where Boeing Alert Service Bulletin MD11-28A148, dated August 29, 2014, specifies a compliance time of “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

    (j) Related Information

    (1) For more information about this AD, contact Philip Kush, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; telephone: 562-627-5263; fax: 562-627-5210; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC D800-0019, Long Beach, CA 90846-0001; telephone 206-544-5000, extension 2; fax 206-766-5683; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on September 17, 2015. John P. Piccola, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24565 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-3321; Airspace Docket No. 15-ANM-17] Proposed Establishment of Class E Airspace, Neah Bay, WA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace at U.S. Coast Guard Station Neah Bay Heliport, Neah Bay, WA, to accommodate new Standard Instrument Approach Procedures for developed at the heliport. Controlled airspace is necessary for the safety and management of Instrument Flight Rules (IFR) operations at the heliport.

    DATES:

    Comments must be received on or before November 13, 2015.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2015-3321; Airspace Docket No. 15-ANM-17, at the beginning of your comments. You may also submit comments 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 in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4563.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at U. S. Coast Guard Station Neah Bay Heliport, Neah Bay, WA.

    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 and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-3321; Airspace Docket No. 15-ANM-17.” The postcard will be date/time stamped and returned to the commenter.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the 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 Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

    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.

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document proposes to amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface at U.S. Coast Guard Station Neah Bay Heliport, Neah Bay, WA. Establishment of a GPS approach has made this action necessary for the safety and management of IFR operations at the heliport. Class E airspace would be established within a 1-mile radius of the U.S. Coast Guard Station Neah Bay Heliport, with a segment extending from the 1-mile radius to 2.5 miles northeast of the heliport.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined 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 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 this proposed rule, when promulgated, would 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 subject 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 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth ANM WA E5 U.S. Coast Guard Station Neah Bay Heliport, Neah Bay, WA [New] U.S. Coast Guard Station Neah Bay Heliport, Neah Bay, WA (lat. 48°22′14″ N., long. 124°35′53″ W.)

    That airspace extending upward from 700 feet above the surface within a 1-mile radius of the U.S. Coast Guard Station Neah Bay Heliport, and within 1 mile each side of the 055° bearing from the heliport extending from the 1-mile radius to 2.5 miles northeast of the heliport.

    Issued in Seattle, Washington, on September 21, 2015. Christopher Ramirez, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2015-24431 Filed 9-28-15; 8:45 am] BILLING CODE 4910-13-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 150 RIN 3038-AD82 Aggregation of Positions AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Supplemental notice of proposed rulemaking.

    SUMMARY:

    On November 15, 2013, the Commodity Futures Trading Commission (“Commission” or “CFTC”) published in the Federal Register a notice of proposed modifications to part 150 of the Commission's regulations. The modifications addressed the policy for aggregation under the Commission's position limits regime for futures and option contracts on nine agricultural commodities set forth in part 150. The Commission also noted that if the Commission's proposed position limits regime for 28 exempt and agricultural commodity futures and options contracts and the physical commodity swaps that are economically equivalent to such contracts are finalized, the proposed modifications would also apply to the position limits regime for those contracts and swaps. The Commission is now proposing a revision to its proposed modification to the aggregation provisions of part 150, which addresses when aggregation is required on the basis of ownership of a greater than 50 percent interest in another entity.

    DATES:

    Comments must be received on or before November 13, 2015.

    ADDRESSES:

    You may submit comments, identified by RIN 3038-AD82, by any of the following methods:

    CFTC Web site: http://comments.cftc.gov. Follow the instructions for submitting comments through the Comments Online process on the Web site.

    Mail: Send to Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    Hand Delivery/Courier: Same as Mail, above.

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

    Please submit your comments using only one of these methods.

    All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that may be exempt from disclosure under the Freedom of Information Act (“FOIA”), a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations, 17 CFR 145.9.

    The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the FOIA.

    FOR FURTHER INFORMATION CONTACT:

    Stephen Sherrod, Senior Economist, Division of Market Oversight, (202) 418-5452, [email protected]; Riva Spear Adriance, Senior Special Counsel, Division of Market Oversight, (202) 418-5494, [email protected]; or Mark Fajfar, Assistant General Counsel, Office of General Counsel, (202) 418-6636, [email protected]; Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    I. Background A. Introduction

    The Commission has long established and enforced speculative position limits for futures and options contracts on various agricultural commodities as authorized by the Commodity Exchange Act (“CEA”).1 The part 150 position limits regime 2 generally includes three components: (1) The level of the limits, which set a threshold that restricts the number of speculative positions that a person may hold in the spot-month, individual month, and all months combined,3 (2) exemptions for positions that constitute bona fide hedging transactions and certain other types of transactions,4 and (3) rules to determine which accounts and positions a person must aggregate for the purpose of determining compliance with the position limit levels.5

    1 7 U.S.C. 1 et seq.

    2See 17 CFR part 150. Part 150 of the Commission's regulations establishes federal position limits on certain enumerated agricultural contracts; the listed commodities are referred to as enumerated agricultural commodities. The Commission has proposed to amend its position limits regime so that it would extend to 28 exempt and agricultural commodity futures and options contracts and the physical commodity swaps that are economically equivalent to such contracts. See Position Limits for Derivatives, 78 FR 75680 (Dec. 12, 2013).

    3See 17 CFR 150.2.

    4See 17 CFR 150.3.

    5See 17 CFR 150.4.

    The Commission's existing aggregation policy under regulation 150.4 generally requires that unless a particular exemption applies, a person must aggregate all positions for which that person controls the trading decisions with all positions for which that person has a 10 percent or greater ownership interest in an account or position, as well as the positions of two or more persons acting pursuant to an express or implied agreement or understanding.6 The scope of exemptions from aggregation include the ownership interests of limited partners in pooled accounts,7 discretionary accounts and customer trading programs of futures commission merchants (“FCM”),8 and eligible entities with independent account controllers that manage customer positions (“IAC” or “IAC exemption”).9 Market participants claiming one of the exemptions from aggregation are subject to a call by the Commission for information demonstrating compliance with the conditions applicable to the claimed exemption.10

    6See 17 CFR 150.4(a) and (b).

    7See 17 CFR 150.4(c).

    8See 17 CFR 150.4(d).

    9See 17 CFR 150.3(a)(4).

    10See 17 CFR 150.3(b) and 150.4(e).

    B. Proposed Modifications to the Policy for Aggregation Under Part 150 of the Commission's Regulations

    On November 15, 2013, the Commission proposed to amend regulation 150.4, and certain related regulations, to include rules to determine which accounts and positions a person must aggregate (the “2013 Aggregation Proposal”).11 Among other elements, the 2013 Aggregation Proposal included a notice filing procedure, effective upon submission, to permit a person in specified circumstances to disaggregate the positions of a separately organized entity (“owned entity”), if such person has between a 10 percent and 50 percent ownership or equity interest in the owned entity.12 The notice filing would need to demonstrate compliance with certain conditions set forth in the proposed rule. Under the 2013 Aggregation Proposal, persons with a greater than 50 percent ownership or equity interest in the owned entity would have to apply on a case-by-case basis to the Commission for permission to disaggregate, and await the Commission's decision as to whether certain conditions specified in the proposed rule had been satisfied and therefore disaggregation would be permitted.13

    11See Aggregation, Position Limits for Futures and Swaps, 78 FR 68946 (Nov. 15, 2013). The 2013 Aggregation Proposal was substantially similar to aggregation rules that had been adopted in part 151 of the Commission's regulations in 2011, see Position Limits for Futures and Swaps, 76 FR 71626 (Nov. 18, 2011) as proposed to be amended in May 2012, see Aggregation, Position Limits for Futures and Swaps, 77 FR 31767 (May 30, 2012).

    In an Order dated September 28, 2012, the District Court for the District of Columbia vacated part 151 of the Commission's regulations, including those aggregation rules. See International Swaps and Derivatives Association v. United States Commodity Futures Trading Commission, 887 F. Supp. 2d 259 (D.D.C. 2012). The revised position limit levels in amended section 150.2 were not vacated.

    12See 2013 Aggregation Proposal, 78 FR at 68958-59.

    13See id. at 68959-61.

    The 2013 Aggregation Proposal reflected the Commission's long-standing incremental approach to exemptions from the aggregation requirement for persons owning a financial interest in an entity. In the 2013 Aggregation Proposal, the Commission reaffirmed its belief that ownership of an entity is an appropriate criterion for aggregation of that entity's positions, noting that section 4a(a)(1) of the CEA provides that “[i]n determining whether any person has exceeded such limits, the positions held and trading done by any persons directly or indirectly controlled by such person shall be included with the positions held and trading done by such person.” 14 The Commission explained that as early as 1957, the Commission's predecessor (the Commodity Exchange Authority) issued determinations requiring that accounts in which a person has a financial interest be included in aggregation.15

    14See id. at 68956, citing 7 U.S.C. 6a(a)(1).

    15See 2013 Aggregation Proposal, 78 FR at 68956, citing Administrative Determination 163 (Aug. 7, 1957) (“[I]n the application of speculative limits, accounts in which the firm has a financial interest must be combined with any trading of the firm itself or any other accounts in which it in fact exercises control.”). The Commission's predecessor, and later the Commission, provided the aggregation standards for purposes of position limits in its regulation 18.01 (within the large trader reporting rules). See Supersedure of Certain Regulations, 26 FR 2968 (Apr. 7, 1961).

    In its Statement of Policy on Aggregation of Accounts and Adoption of Related Reporting Rules, 44 FR 33839 (June 13, 1979) (“1979 Aggregation Policy”), the Commission discussed regulation 18.01, stating:

    Financial Interest in Accounts. Consistent with the underlying rationale of aggregation, existing reporting Rule 18.10(a) a (sic) basically provides that if a trader holds or has a financial interest in more than one account, all accounts are considered as a single account for reporting purposes. Several inquiries have been received regarding whether a nomial (sic) financial interest in an account requires the trader to aggregate. Traditionally, the Commission's predecessor and its staff have expressed the view that except for the financial interest of a limited partner or shareholder (other than the commodity pool operator) in a commodity pool, a financial interest of 10 percent or more requires aggregation. The Commission has determined to codify this interpretation at this time and has amended Rule 18.01 to provide in part that, “For purposes of this Part, except for the interest of a limited partner or shareholder (other than the commodity pool operator) in a commodity pool, the term `financial interest' shall mean an interest of 10 percent or more in ownership or equity of an account.”

    Thus, a financial interest at or above this level will constitute the trader as an account owner for aggregation purposes.

    1979 Aggregation Policy, 44 FR at 33843.

    The provisions concerning aggregation for position limits generally remained part of the Commission's large trader reporting regime until 1999 when the Commission incorporated the aggregation provisions into rule 150.4 with the existing position limit provisions in part 150. See Revision of Federal Speculative Position Limits, 64 FR 24038 (May 5, 1999) (“1999 Amendments”). The Commission's part 151 rulemaking also incorporated the aggregation provisions in rule 151.7 along with the remaining position limit provisions in part 151. See Position Limits for Futures and Swaps, 76 FR 71626 (Nov. 18, 2011).

    Regarding the threshold level at which an exemption from aggregation on the basis of ownership would be available, the Commission noted in the 2013 Aggregation Proposal that it has generally found that an ownership or equity interest of less than 10 percent in an account or position that is controlled by another person who makes discretionary trading decisions does not present a concern that such ownership interest results in control over trading or can be used indirectly to create a large speculative position through ownership interests in multiple accounts. As such, the Commission has exempted an ownership interest below 10 percent from the aggregation requirement.16

    16See 2013 Aggregation Proposal, 78 FR at 68958.

    The Commission noted that while other of its rulemakings prior to the 2013 Aggregation Proposal generally restricted exemptions from aggregation based on ownership to FCMs, limited partner investors in commodity pools, and independent account controllers managing customer funds for an eligible entity, a broader passive investment exemption has previously been considered but not enacted by the Commission.17 Further, the Commission reiterated its belief in incremental development of aggregation exemptions over time.18 Consistent with that incremental approach, in the 2013 Aggregation Proposal the Commission considered the additional information provided and the concerns raised by commenters on the May 2012 aggregation proposal and proposed two new tiers of relief from the ownership criteria of aggregation—relief on the basis of a notice filing, effective upon submission, by persons holding an interest of between 10 percent and 50 percent in an owned entity, and relief on the basis of an application by persons holding an interest of more than 50 percent in an owned entity.19 Each of these procedures for relief in the 2013 Aggregation Proposal is described briefly below.

    17See id. at 68951, citing Exemptions from Speculative Position Limits for Positions which have a Common Owner but which are Independently Controlled and for Certain Spread Positions; Proposed Rule, 53 FR 13290, 13292 (Apr. 22, 1988).

    18See 2013 Aggregation Proposal, 78 FR at 68951, citing Aggregation, Position Limits for Futures and Swaps, 77 FR 31767, 31773 (May 30, 2012). This incremental approach to account aggregation standards reflects the Commission's historical practice. See, e.g., Exemptions from Speculative Position Limits for Positions Which Have a Common Owner But Which are Independently Controlled and for Certain Spread Positions; Final Rule 53 FR 41563, 41567 (Oct. 24, 1988) (the definition of eligible entity for purposes of the IAC exemption originally only included CPOs, or exempt CPOs or pools, but the Commission indicated a willingness to expand the exemption after a “reasonable opportunity” to review the exemption.); Exemption From Speculative Position Limits for Positions Which Have a Common Owner, But Which Are Independently Controlled, 56 FR 14308, 14312 (Apr. 9, 1991) (the Commission expanded eligible entities to include commodity trading advisors, but did not include additional entities requested by commenters until the Commission had the opportunity to assess the current expansion and further evaluate the additional entities); and the 1999 Amendments (the Commission expanded the list of eligible entities to include many of the entities commenters requested in the 1991 rulemaking).

    19See 2013 Aggregation Proposal, 78 FR at 68958-61.

    1. Disaggregation Relief for Ownership or Equity Interests of 50 Percent or Less

    Proposed rule § 150.4(b)(2), as set out in the 2013 Aggregation Proposal, would continue the Commission's longstanding rule that persons with either an ownership or an equity interest in an account or position of less than 10 percent need not aggregate such positions solely on the basis of the ownership criteria, and persons with a 10 percent or greater ownership interest would still generally be required to aggregate the account or positions.20 However, proposed rule § 150.4(b)(2), as set out in the 2013 Aggregation Proposal, would establish a notice filing procedure, effective upon submission, to permit a person with either an ownership or an equity interest in an owned entity of 50 percent or less to disaggregate the positions of an owned entity in specified circumstances, even if such person has a 10 percent or greater interest in the owned entity.21 The notice filing would have to demonstrate compliance with certain conditions set forth in proposed rule § 150.4(b)(2). Similar to other exemptions from aggregation, the notice filing would be effective upon submission to the Commission, but the Commission would be able to subsequently call for additional information, and to amend, terminate or otherwise modify the person's aggregation exemption for failure to comply with the provisions of rule § 150.4(b)(2). Further, the person would be obligated to amend the notice filing in the event of a material change to the circumstances described in the filing.

    20 For purposes of aggregation, the Commission continues to believe that contingent ownership rights, such as an equity call option, would not constitute an ownership or equity interest.

    21 Under the 2013 Aggregation Proposal, and in a manner similar to current regulation, if a person qualifies for disaggregation relief, the person would nonetheless have to aggregate those same accounts or positions covered by the relief if they are held in accounts with substantially identical trading strategies. See proposed rule § 150.4(a)(2). The exemptions in proposed rule § 150.4 are set forth as alternatives, so that, for example, the applicability of the exemption in paragraph (b)(2) would not affect the applicability of a separate exemption from aggregation (e.g., the independent account controller exemption in paragraph (b)(5)). The revisions proposed here would not change these aspects of the 2013 Aggregation Proposal.

    The Commission preliminarily based the 2013 Aggregation Proposal's limit of 50 percent on the ownership interest in another entity on a belief that the limit would be a reasonable, “bright line” standard for determining when aggregation of positions is required, even where the ownership interest is passive.22 The 2013 Aggregation Proposal explained that majority ownership (i.e., over 50 percent) is indicative of control, and this standard would address the Commission's concerns about circumvention of position limits by coordinated trading or direct or indirect influence between entities. For these reasons, the Commission preliminarily believed that aggregation based upon an ownership or equity interest of greater than 50 percent would be appropriate to address the heightened risk of direct or indirect influence over the owned entity.23

    22See 2013 Aggregation Proposal, 78 FR at 68959.

    23See id.

    Referring to commenters who said that if an owned entity's positions are aggregated with the owner's position, the aggregation should be pro rata to the ownership interest, the Commission stated its belief that a pro rata approach could be administratively burdensome for both owners and the Commission.24 For example, the Commission explained, the level of ownership interest in a particular owned entity may change over time for a number of reasons, including stock repurchases, stock rights offerings, or mergers and acquisitions, any of which may dilute or concentrate an ownership interest. Thus, it may be burdensome to determine and monitor the appropriate pro rata allocation on a daily basis. Moreover, the Commission also noted that it has historically interpreted the statute to require aggregation of all the relevant positions of owned entities, absent an exemption. This is consistent with the view that a holder of a significant ownership interest in another entity may have the ability to influence all the trading decisions of the entity in which such ownership interest is held.

    24See id.

    2. Disaggregation Relief for Ownership or Equity Interests of Greater Than 50 Percent

    The 2013 Aggregation Proposal also included a provision for disaggregation relief for ownership or equity interests of greater than 50 percent, which was consistent with the Commission's preliminary view that relief from the aggregation requirement should not be available merely upon a notice filing by a person who has a greater than 50 percent ownership or equity interest in the owned entity. The Commission explained that, in its view, a person with a greater than 50 percent ownership interest in multiple accounts would have the ability to hold and control a significant and potentially unduly large overall position in a particular commodity, which position limits are intended to prevent. Also, as noted above, the Commission believed that in general this “bright line” approach would provide administrative certainty.25

    25See id.

    Nonetheless, the Commission considered points raised by commenters in this regard, and concluded that in some situations disaggregation relief may be appropriate even for a person holding a majority ownership interest, on the conditions that the owned entity is not required to be, and is not, consolidated on the financial statement of the person, the person can demonstrate that the person does not control the trading of the owned entity, based on the criteria in proposed rule § 150.4(b)(2)(i), and both the person and the owned entity have procedures in place that are reasonably effective to prevent coordinated trading.26

    26See id.

    The Commission acknowledged that to provide such relief in order to address issues raised by commenters would represent a break by the Commission from past practice, but it explained that it has authority to provide such relief pursuant to section 4a(a)(7) of the CEA, which authorizes the Commission to provide relief from the requirements of the position limits regime.27

    27See id.

    Consequently, the 2013 Aggregation Proposal included a provision (proposed rule § 150.4(b)(3)) that would permit a person with a greater than 50 percent ownership of an owned entity to apply to the Commission for relief from aggregation on a case-by-case basis. The person would be required to demonstrate to the Commission that:

    i. The owned entity is not required to be, and is not, consolidated on the financial statement of the person,

    ii. the person does not control the trading of the owned entity (based on criteria in rule § 150.4(b)(2)(i)), with the person showing that it and the owned entity have procedures in place that are reasonably effective to prevent coordinated trading in spite of majority ownership,28

    28 The Commission pointed out that since this criterion requires a person to certify that the person does not control trading of its owned entity, the criterion could not be met by a natural person or any entity, such as a partnership, where it is not possible to separate knowledge and control of the person from that of the owned entity.

    iii. each representative of the person (if any) on the owned entity's board of directors attests that he or she does not control trading of the owned entity, and

    iv. the person certifies that either (a) all of the owned entity's positions qualify as bona fide hedging transactions or (b) the owned entity's positions that do not so qualify do not exceed 20 percent of any position limit currently in effect, and the person agrees in either case that:

    If this certification becomes untrue for the owned entity, the person will aggregate the owned entity for three complete calendar months and if all of the owned entity's positions qualify as bona fide hedging transactions for that entire time the person would have the opportunity to make the certification again and stop aggregating,

    upon any call by the Commission, the owned entity(ies) will make a filing responsive to the call, reflecting the owned entity's positions and transactions only, at any time (such as when the Commission believes the owned entities in the aggregate may exceed a visibility level), and

    the person will provide additional information to the Commission if any owned entity engages in coordinated activity, short of common control (understanding that if there were common control, the positions of the owned entity(ies) would be aggregated).

    The Commission clarified that the proposed relief would not be automatic, but rather would be available only if the Commission finds, in its discretion, that the four conditions above are met. The proposed rule would not impose any time limits on the Commission's process for making the determination of whether relief is appropriately granted, and relief would be available only if and when the Commission acts on a particular request for relief.29

    29See 2013 Aggregation Proposal, 78 FR at 68960.

    The Commission also explained that, under the 2013 Aggregation Proposal, it would interpret factors such as the owned entity being a newly acquired standalone business or a joint venture subject to special restrictions on control, or two different owned entities conducting operations at different levels of commerce (such as retail and wholesale), to be favorable to granting relief from the aggregation requirement.30 The Commission also noted that if a person with greater than 50 percent ownership of an owned entity could not meet the conditions in proposed rule § 150.4(b)(3), the person could apply to the Commission for relief from aggregation under CEA section 4a(a)(7).31 The Commission noted that CEA section 4a(a)(7) does not impose any time limits on the Commission's process for determining whether relief under that section is appropriate, nor does it prescribe or limit the factors that the Commission may consider to be relevant in determining whether to grant relief.32

    30See id.

    31See id. Section 4a(a)(7) of the CEA provides authority to the Commission to grant relief from the position limits regime.

    32See id. The 2013 Aggregation Proposal also included amended rule § 150.1(e)(5) and proposed rule § 150.4(b)(5) that would allow managers of employee benefit plans (i.e., persons that manage a commodity pool, the operator of which is excluded from registration as a commodity pool operator under rule § 4.5(a)(4)) to be treated as an IAC, on the condition that an IAC notice filing is made as required under rule § 150.4(c). See id. at 68961. The aspects of the 2013 Aggregation Proposal related to proposed rule §§ 150.1(e)(5) and 150.4(b)(5) are not affected by the revisions discussed herein.

    II. Proposed Rules A. Proposed Revision To Allow for Relief to Owners of More Than 50 Percent of an Owned Entity Based on Notice Filing

    In light of the language in section 4a of the CEA, its legislative history, subsequent regulatory developments, and the Commission's historical practices in this regard, the Commission continues to believe that section 4a requires aggregation on the basis of either ownership or control of an entity. The Commission also believes that aggregation of positions across accounts based upon ownership is a necessary part of the Commission's position limit regime.33 However, the Commission is also mindful that, as discussed by commenters on the 2013 Aggregation Proposal, aggregation of positions held by owned entities may in some cases be impractical, burdensome, or not in keeping with modern corporate structures. Therefore, the Commission is proposing a limited revision to the 2013 Aggregation Proposal that would permit all owners of 10 percent or more of an owned entity (i.e., the owners of up to and including 100 percent of an owned entity) to disaggregate the positions of the owned entity in the circumstances specified in proposed rule § 150.4(b)(2). All other aspects of the 2013 Aggregation Proposal, including the proposed criteria for disaggregation relief and other aspects not discussed herein, remain the same.

    33See 1999 Amendments, 64 FR at 24044 (“[T]he Commission . . . interprets the `held or controlled' criteria as applying separately to ownership of positions or to control of trading decisions.”). See also, Exemptions from Speculative Position Limits for Positions which have a Common Owner but which are Independently Controlled and for Certain Spread Positions; Proposed Rule, 53 FR 13290, 13292, (Apr. 22, 1988). In response to two separate petitions, the Commission proposed the independent account controller exemption from speculative position limits, but declined to remove the ownership standard from its aggregation policy.

    The Commission has the authority to revise its proposed relief under section 4a(a)(7) of the CEA, which authorizes the Commission to provide relief from the requirements of the position limits regime. The reasons for this proposed revision are discussed below.

    B. Commenters' Views

    Commenters on the 2013 Aggregation Proposal generally praised the proposed relief for owners of between 10 percent and 50 percent of an owned entity, but asserted that the proposed application procedures for owners of a more than 50 percent equity or ownership interest were unnecessary and inappropriate.34

    34 The comments on the 2013 Aggregation Proposal are available on the Commission's Web site at http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1427. Commenters also addressed other aspects of the 2013 Aggregation Proposal, but since those other aspects remain the same under this revision to the proposal, it is unnecessary to address those comments at this time.

    A few commenters opposed providing aggregation relief for owners of more than 10 percent of an owned entity. Better Markets, Inc. (“Better Markets”), an organization that advocates for financial reform, commented that allowing disaggregation of majority-owned subsidiaries would ignore the clear language of CEA section 4a(a)(1) and “would allow traders to easily circumvent Position Limits by creating multiple subsidiaries and dividing its positions among them.” 35 Better Markets said the Commission must therefore not allow any disaggregation relief for owners holding a more than 10 percent interest in an owned entity.36 Occupy the SEC, another organization that advocates for financial reform, said that the provision for relief for owners of more than 50 percent of an owned entity should be removed because “there can be no plausible justification for exempting largely interconnected firms from the position limits regime,” and in any case the proposed relief for greater than 50 percent owners would be of little use because it “adds a veritable gauntlet of conditions [in proposed rule 150.4(b)(3)] that few companies will be able to pass.” 37

    35 Better Markets, Inc. on February 10, 2014 (“CL-Better Markets”) at 2-3.

    36 CL-Better Markets at 3.

    37 Occupy the SEC on August 7, 2014 at 5-6. Occupy the SEC did not comment on the provision for disaggregation relief for owners holding between a 10 percent and a 50 percent interest in an owned entity.

    Another commenter, Chris Barnard, said that he initially took a negative view of providing relief for owners of more than 50 percent of an owned entity, but concluded such relief was acceptable because of the strength of the conditions in proposed rule § 150.4(b)(3). Chris Barnard on January 16, 2014 at 1-2.

    The Futures Industry Association (“FIA”), a trade association, commented that the Commission should permit majority-owned affiliates to be disaggregated regardless of whether the entities are required to consolidate financial statements.38 The FIA opined that conditioning disaggregation of majority-owned affiliates on the lack of a requirement for consolidated financial statements would be arbitrary, because the accounting principles “are wholly unrelated to the question of actual control of day-to-day trading decisions and positions.” 39 The FIA requested that the Commission amend the proposal to allow a person to rebut the presumption of control of a majority-owned affiliate solely by demonstrating that the person does not control the trading and positions of the owned entity through, among other things, effective procedures that prevent coordinated trading.40 The FIA recommended that the Commission remove the condition for each representative of the board of directors to certify that he or she does not control the trading decisions of the owned entity.41

    38 Futures Industry Association on February 6, 2014 (“CL-FIA”) at 4, 8 and 10-11.

    39 CL-FIA at 10.

    40 CL-FIA at 10. The FIA commented that because the exemption for majority-owned entities would be effective only after a Commission determination, the Commission would have discretion on a case-by-case basis to review facts and circumstances. CL-FIA at 10.

    41 CL-FIA at 10-11.

    Other commenters said that the Commission should provide the same disaggregation relief for owners of more than 50 percent of an owned entity as is proposed to be provided for owners of 50 percent or less. For example, the Asset Management Group of the Securities Industry and Financial Markets Association said that the Commission should extend “the owned entity exemption at proposed [rule] 150.4(b)(2) to include all third party ownership interests (greater than 50 [percent]) that do not involve actual common trading control.” 42 The Center for Capital Markets Competitiveness of the U.S. Chamber of Commerce said that the requirement in proposed rule § 150.4(b)(3) to submit an application to the Commission and await its approval would be unworkable in practice and not provide any apparent regulatory benefit.43

    42 The Asset Management Group of the Securities Industry and Financial Markets Association on February 10, 2014 at 6. The Coalition of Physical Energy Companies, on February 10, 2014 at 3-8, also said that the “Greater Than 50 Percent” category should be eliminated and such situations treated in accordance with proposed rule § 150.4(b)(2).

    43 Center for Capital Markets Competitiveness of the U.S. Chamber of Commerce on February 10, 2014 at 9. ICE Futures U.S., Inc., a designated contract market (“DCM”), agreed that the requirements in proposed rule § 150.4(b)(3) would be unworkable, and suggested that the Commission should “[a]t a minimum,” revise the rule to reflect an objective process for action within a specified time. ICE Futures U.S., Inc. on February 10, 2014 at 3.

    Similar comments were made by the American Gas Association on February 10, 2014 at 5-11, the Commercial Energy Working Group on February 10, 2014 at 2-8, the Managed Funds Association on February 10, 2014 at 9-15, and the Private Equity Growth Capital Council on February 10, 2014 (“CL-PEGCC”) at 3-8.

    The Commodity Markets Council recommended that the Commission not require aggregation based solely on ownership of legal entities, but instead extend the IAC exemption to all separately organized companies, whether or not they are affiliated.44 The Natural Gas Supply Association (“NGSA”) recommended that the Commission leave the current rules on aggregation in place unchanged, because “[u]nder the status quo, the Commission may bring enforcement action against an investor if it directs or otherwise controls the trading of an owned entity whose positions it claims it does not control.” 45

    44 Commodity Markets Council on February 10, 2014 (“CL-CMC”) at 16-17. In a separate comment letter, the Commodity Markets Council recommended that affiliated companies not be required to aggregate their positions when (1) the companies are authorized to control trading decisions on their own, (2) the owner maintains only such minimum control as is consistent with its fiduciary responsibilities to supervise diligently the trading of the owned entity (or other applicable responsibilities), (3) the companies actually trade independently, and (4) the companies have no knowledge of each other's trading decisions. Commodity Markets Council on July 25, 2014 (“CL-CMC II”) at 5-6.

    45 Natural Gas Supply Association on February 10, 2014 (“CL-NGSA”) at 39-43.

    MidAmerican Energy Holdings Company (“MidAmerican”), an energy services company which is controlled by Berkshire Hathaway, Inc. (“Berkshire”), commented that, absent aggregation relief for majority-owned affiliates that are consolidated for accounting purposes, the proposed position limits would impose “serious regulatory costs and consequences” to establish an extensive compliance monitoring and coordination program across independently managed, disparate businesses, and would be contrary to policies, procedures, systems, and controls established to provide functional and legal separation for individual operating businesses.46 MidAmerican explained that Berkshire and its industrial operating businesses are generally managed on a decentralized basis, with no centralized or integrated business functions and minimal involvement by Berkshire's corporate headquarters in day-to-day business activities of MidAmerican or Berkshire's other operating businesses.47 MidAmerican recommended that the Commission provide for disaggregation upon a notice filing by a group of majority-owned entities that meet the four criteria in the proposal or, if the group does not meet all four criteria in the proposal, provide for the group to rely on the submission of an application for relief until the Commission has acted on the application.48

    46 MidAmerican Energy Holdings Company on February 7, 2014 (“CL-MidAmerican”) at 1-2.

    47 CL-MidAmerican at 2.

    48 CL-MidAmerican at 3. MidAmerican recommended an application for relief by majority-owned affiliates not meeting all four criteria would need to rebut the assumption of control over majority-owned subsidiaries and meet two conditions: (1) The requirements applicable to entities with 50 percent or less common ownership; and (2) The requirement that representatives of board members of an entity covered by the relief request attest to the absence of trading control. MidAmerican recommended that the Commission consider the following factors that may rebut the assumption of control over majority-owned subsidiaries: (1) Separate trading accounts and broker relationships for each entity; (2) periodic certification from an officer of the requesting entity that the policies and procedures designed to prevent trading-level control or coordination remain in place and are effective; (3) lack of common guarantor and/or provision of independent credit support; (4) lack of cross-default or cross-acceleration provisions in trading contracts; (5) maintenance of separate identifiable assets; (6) maintenance of separate lines of business (i.e., the business of one entity is not dependent upon the other); and (7) any other structural, legal, or regulatory barriers limiting control and interdependencies among affiliated entities. CL-MidAmerican at 4-5.

    CME Group (“CME”), a holding company for a number of DCMs, stated that the Commission did not identify any basis or justification for the various features of the proposed aggregation regime.49 CME contended that features of the 2013 Aggregation Proposal (regarding the owned entity aggregation rules, the IAC exemption, and the “substantially identical trading strategies” rule) are not in accordance with law, arbitrary and capricious, an unexplained departure from the Commission's administrative precedent, and not more permissive than existing aggregation standards.50 The Commodity Markets Council and the NGSA were also of the opinion that the 2013 Aggregation Proposal was not supported by the Commission's administrative precedent.51 CME and NGSA asserted that section 4a(a)(1) of the CEA provides no basis for requiring aggregation of positions held by another person in the absence of control of such other person.52 CME also stated that rule § 150.4(b) generally exempts a commodity pool's participants with an ownership interest of 10 percent or greater from aggregating the positions held by the pool.53 Finally, CME and NGSA contended that two of the Commission's enforcement cases indicate that the Commission has viewed aggregation as being required only where there is common trading control.54

    49 CME Group on February 10, 2014 (“CL-CME”) at 9.

    50 CL-CME at 2, 6, and 10-11. CME opined that under the Commission's precedent, a 10 percent or more ownership or equity interest in an account is an indicia of trading control, but this precedent does not support a requirement for aggregation based on a 10 percent or more ownership or equity interest in an entity. CL-CME at 11. CME reasoned that the Commission's use of the term “account” has never referred to an owned entity that itself has accounts, that the 1979 Aggregation Policy suggests the Commission contemplated a definition of “account” that means no more than a personally owned futures trading account, and that the 1999 Amendments to the aggregation rules were focused on directly owned accounts. CL-CME at 11-12.

    51 The Commodity Markets Council said that under the Commission's precedents “[l]egal affiliation [between companies] has been an indicium but not necessarily sufficient for position aggregation.” CL-CMC at 16.

    NGSA said that the Commission has never specifically required aggregation solely on the basis of ownership of another legal person. CL-NGSA at 42. To support its view, NGSA said that the 1979 Aggregation Policy and the 1999 Amendments apply to only trading accounts that are directly or personally held or controlled by an individual or legal entity, the Commission's large trader rules require aggregation of multiple accounts held by a particular person, not the accounts of a person and its owned entities, and regulation § 18.04(b) distinguishes between owners of the “reporting trader” and the owners of the “accounts of the reporting trader.” Id. at 42-43.

    52 CL-CME at 5-6; CL-NGSA at 41. CME commented that the Commission failed to consider the statutorily required factors, because CME asserts it is false that prior rules required aggregation of owned entity positions at a 10 percent ownership level. CL-CME at 8.

    NGSA contended that “CEA section 4a(a)(1) only allows the Commission to require the aggregation of positions on ownership alone when those positions are directly owned by a person. The positions of another person are only to be aggregated when the person has direct or indirect control over the trading of another person.” CL-NGSA at 41.

    53 CL-CME at 13. CME noted that 63 FR 38525 at 38532 n. 27 (July 17, 1998) (proposal to amend regulation 150.3 to include the separately incorporated affiliates of a CPO, CTA or FCM as eligible entities for the exemption relief of regulation 150.3) states: “Affiliated companies are generally understood to include one company that owns, or is owned by, another or companies that share a common owner.” CL-CME at 13 n. 52. CME also asserted that the term “principals” under regulation § 3.1(a)(2)(ii) include entities that have a direct ownership interest that is 10 percent or greater in a lower tier entity, such as the parent of a wholly-owned subsidiary. From these two provisions, CME concluded that the corporate parent of a wholly-owned CPO would be affiliated with, and a principal of, its wholly-owned subsidiary.

    54See CL-CME at 14-15, citing In the Matter of Vitol Inc. et al., Docket No. 10-17 (Sept. 14, 2010), available at http://www.cftc.gov/ucm/groups/public/@lrenforcementactions/documents/legalpleading/enfvitolorder09142010.pdf (“In the Matter of Vitol”) and In the Matter of Citigroup Inc. et al., Docket No. 12-34 (Sept. 21, 2012), available at http://www.cftc.gov/ucm/groups/public/@lrenforcementactions/documents/legalpleading/enfcitigroupcgmlorder092112.pdf (“In the Matter of Citigroup”).

    NGSA contended that In the Matter of Vitol was based on facts that would be relevant only if common trading control was necessary for aggregating the positions of affiliated companies. See CL-NGSA at 43. NGSA did not discuss In the Matter of Citicorp.

    C. Revised Proposed Rule

    In view of the points raised by commenters on the 2013 Aggregation Proposal and upon further review of the matter, the Commission is proposing to revise the proposal to delete proposed rule §§ 150.4(b)(3) and 150.4(c)(2), and to change proposed rule § 150.4(b)(2) so that it would apply to all persons with an ownership or equity interest in an owned entity of 10 percent or greater (i.e., an interest of up to and including 100%) in the same manner as proposed rule § 150.4(b)(2) would apply, before this revision, to owners of an interest of between 10 percent and 50 percent. The Commission is also proposing conforming changes in proposed rule § 150.4(b)(7), to delete a cap of 50 percent on the ownership or equity interest for broker-dealers to disaggregate, and in proposed rule § 150.4(e)(1)(i), to delete a delegation of authority referencing proposed rule § 150.4(b)(3).55 The entirety of the Commission's aggregation-related proposed amendments to part 150, as set out in the 2013 Aggregation Proposal as revised herein, is set forth at the end of this notice.

    55 The Commission also proposes to delete a cross-reference to proposed rule § 150.4(b)(3)(vii) in proposed rule § 150.4(c)(1).

    The Commission finds merit in the comments of the FIA that ownership of a greater than 50 percent interest in an entity (and the related consolidation of financial statements) may not mean that the owner actually controls day-to-day trading decisions of the owned entity. The Commission believes that, on balance, the overall purpose of the position limits regime (to diminish the burden of excessive speculation which may cause unwarranted changes in commodity prices) would be better served by focusing the aggregation requirement on situations where the owner is, in view of the circumstances, actually able to control the trading of the owned entity.56 The Commission reasons that the ability to cause unwarranted changes in the price of a commodity derivatives contract would result from the owner's control of the owned entity's trading activity.

    56 The Commission notes in this regard that there may be significant burdens in meeting the requirements of proposed rule § 150.4(b)(3) even where there is no control the trading of the owned entity, as was suggested by the Center for Capital Markets Competitiveness of the U.S. Chamber of Commerce, the Asset Management Group of the Securities Industry and Financial Markets Association and the other commenters. See supra nn. 42 and 43.

    The Commission has considered the views of Better Markets and other commenters who warned that inappropriate relief from the aggregation requirements could allow circumvention of position limits through the use of multiple subsidiaries. However, the Commission believes that the criteria in proposed rule § 150.4(b)(2)(i), which must be satisfied in order to disaggregate, will appropriately indicate whether an owner has control of or knowledge of the trading activity of the owned entity. The disaggregation criteria require that the two entities not have knowledge of each other's trading and, moreover, have and enforce written procedures to preclude such knowledge.57 And, in fact, as noted in the 2013 Aggregation Proposal, the Commission has applied, and expects to continue to apply, certain of the same conditions in connection with the IAC exemption to ensure independence of trading between an eligible entity and an affiliated independent account controller. If the disaggregation criteria are satisfied, therefore, the Commission preliminarily believes that disaggregation may be permitted even if the owner has a greater than 50 percent ownership or equity interest in the owned entity. Even in the case of majority ownership, if the disaggregation criteria are satisfied, the ability of an owner and the owned entity to act together to engage in excessive speculation or to cause unwarranted price changes should not differ significantly from that of two separate individuals.

    57See 2013 Aggregation Proposal, 78 FR at 68961, referring to regulation § 150.3(a)(4) (proposed to be replaced by proposed rule § 150.4(b)(5)). Such conditions have been useful in ensuring that trading is not coordinated through the development of similar trading systems, and that procedures are in place to prevent the sharing of trading decisions between entities.

    The Commission points out that finalization of proposed rule § 150.4(b)(2), which would allow persons with ownership or equity interests in an owned entity of up to and including 100 percent to disaggregate the positions of the owned entity if certain conditions were satisfied, would not mean that there would be no aggregation on the basis of ownership. Rather, aggregation would still be the “default requirement” for the owner of a 10 percent or greater interest in an owned entity, unless the conditions of proposed rule § 150.4(b)(2) are satisfied.58

    58 The Commission noted in the 2013 Aggregation Proposal that if there were no aggregation on the basis of ownership, it would have to apply a control test in all cases, which would pose significant administrative challenges to individually assess control across all market participants. See 2013 Aggregation Proposal, 78 FR at 68956. Further, the Commission considered that if the statute required aggregation only if the existence of control were proven, market participants may be able to use an ownership interest to directly or indirectly influence the account or position and thereby circumvent the aggregation requirement. See id. On further review and after considering the comments of the FIA and others, the Commission believes that the disaggregation criteria in proposed rule § 150.4(b)(2)(i) provide an effective, easily implemented means of applying a “control test” to determine if disaggregation should be allowed, without creating a loophole through which market participants could circumvent the aggregation requirement.

    Furthermore, satisfaction of the criteria of proposed rule § 150.4(b)(2) would not mean that an owner and owned entity would be entirely immune from aggregation in all circumstances. For example, aggregation is and would continue to be required under both current regulation § 150.4(a) and proposed rule § 150.4(a)(1) if two or more persons act pursuant to an express or implied agreement; and this aggregation requirement would apply whether the two or more persons are an owner and owned entity(ies) that meet the conditions in proposed rule § 150.4(b)(2), or are unaffiliated individuals. The Commission intends to continue to enforce the requirement of aggregation when two persons are acting together pursuant to an express or implied agreement regardless of whether the two persons are unaffiliated or if one person has an ownership interest in the other.

    In determining whether the criteria in proposed rule § 150.4(b)(2) are an appropriate test for owners of more than 50 percent of an owned entity, the Commission notes the comments of MidAmerican regarding the relevant variances in corporate structures. MidAmerican stated that there are instances where one entity has a 100 percent ownership interest in another entity, yet does not control day-to-day business activities of the owned entity. Also, in this situation the owned entity would not have knowledge of the activities of other entities owned by the same owner, nor would it raise the heightened concerns, triggered when one entity both owns and controls trading of another entity, that the owner would necessarily act in a coordinated manner with other owned entities.

    The Commission also appreciates that a requirement to aggregate the positions of majority-owned subsidiaries could require corporate groups to establish procedures to monitor and coordinate trading activities across disparate owned entities, which could have unpredictable consequences. The Commission recognizes that these consequences could include not only the cost of establishing these procedures, but also the impairment of corporate structures which were established to insure that the various owned entities engage in business independently. This independence may serve important purposes which could be lost if the aggregation requirement were imposed too widely.

    Further, the Commission notes that for those corporate groups that establish policies and controls to separate different operating businesses, the disaggregation criteria in proposed rule § 150.4(b)(2)(i) should be relatively familiar and easy to satisfy. That is, the disaggregation criteria and their application to corporate groups like MidAmerican's group are in line with prudent corporate practices that are maintained for longstanding, well-accepted reasons. The Commission does not intend that the aggregation requirement interfere with these structures.59

    59 In the 2013 Aggregation Proposal, the Commission noted that if the aggregation rules adopted by the Commission would be a precedent for aggregation rules enforced by designated contract markets and swap execution facilities, it would be even more important that the aggregation rules set out, to the extent feasible, “bright line” rules that are capable of easy application by a wide variety of market participants while not being susceptible to circumvention. See 2013 Aggregation Proposal, 78 FR at 68596, n. 103. The Commission believes that by implementing an approach to aggregation that is in keeping with longstanding corporate practices, the proposed revisions promote the goal of setting out “bright line” rules that are relatively easy to apply while not being susceptible to circumvention.

    MidAmerican and the Commodity Markets Council proposed various alternative criteria which could be used to determine whether the positions of an owner and owned entity could be disaggregated.60 However, after considering these suggestions, the Commission does not believe that the suggested criteria are significantly different from the criteria in proposed rule § 150.4(b)(2)(i) in the 2013 Aggregation Proposal. Also, some of the suggested criteria appear to be suitable for particular situations, but not necessarily all corporate groups.61 Overall, the Commission believes that the criteria in proposed rule § 150.4(b)(2)(i) are appropriate and suitable for determining when disaggregation is permissible due to a lack of control and shared knowledge of trading activities. 62

    60See, e.g., CL-MidAmerican at 4-5, CL-CMC II at 5-6.

    61 For example, MidAmerican recommended factors such as whether the owner and the owned entity have separate trading accounts, separate assets, separate lines of business, independent credit support and other specific indications of separation. See CL-MidAmerican at 4-5. In the Commission's view, criteria such as these are specific manifestations of the general principles stated in proposed rule § 150.4(b)(2)(i) that the owner and the owned entity not have knowledge of the trading decisions of the other and trade pursuant to separately developed and independent trading systems. Similarly, whether the two entities do or do not have separate assets or separate lines of business would not necessarily indicate whether they are engaged in coordinated trading.

    62 As stated in the 2013 Aggregation Proposal, the Commission proposes that the criteria in proposed rule § 150.4(b)(2)(i) would be interpreted and applied in accordance with the Commission's past practices. See, e.g., 1979 Aggregation Policy, 44 FR 33839 (providing indicia of independence); CFTC Interpretive Letter No. 92-15 (CCH ¶ 25,381) (ministerial capacity overseeing execution of trades not necessarily inconsistent with indicia of independence); 1999 Amendments, 64 FR at 24044 (intent in issuing final aggregation rule “merely to codify the 1979 Aggregation Policy, including the continued efficacy of the [1992] interpretative letter”).

    In response to the assertions of CME and NGSA, the Commission reiterates its belief, as stated in the 2013 Aggregation Proposal, that ownership of an entity is an appropriate criterion for aggregation of that entity's positions, due in part to the direction in section 4a(a)(1) of the CEA that all positions held by a person should be aggregated.

    The Commission has explained that this interpretation is supported by Congressional direction and Commission precedent from as early as 1957 and continued through 1999.63 For example, in 1968, Congress amended the aggregation standard in CEA section 4a to include positions “held by” one trader for another,64 supporting the view that an owner should aggregate the positions held by an owned entity (because the owned entity is holding the positions for the owner). During the Commission's 1986 reauthorization, points similar to those raised now by CME and NGSA were considered and rejected. At that time, witnesses at Congressional hearings suggested that “aggregation of positions based on ownership without actual control unnecessarily restricts a trader's use of the futures and options markets,” but the Congressional committee did not recommend any changes to the statute based on these suggestions.65

    63See 2013 Aggregation Proposal, 78 FR at 68956.

    64See Pub. L. 90-258, Sec. 2, 82 Stat. 26 (1968). The Senate Report accompanying the 1968 amendment stated that “all of the changes made by this section incorporate longstanding administrative interpretations reflected in orders of the [Commodity Exchange] Commission.” S. Rep. No. 947, 90th Cong. 2d Sess. (1968) at page 5.

    65See H.R. Rep. No. 624, 99th Cong., 2d Sess. (1986) at page 43. The Report noted that:

    During the subcommittee hearings on reauthorization, several witnesses expressed dissatisfaction with the manner in which certain market positions are aggregated for purposes of determining compliance with speculative limits fixed under Section 4a of the Act. The witnesses suggested that, in some instances, aggregation of positions based on ownership without actual control unnecessarily restricts a trader's use of the futures and options markets. In this connection, concern was expressed about the application of speculative limits to the market positions of certain commodity pools and pension funds using multiple trading managers who trade independently of each other. The Committee does not take a position on the merits of the claims of the witnesses.

    Id.

    In 1988, the Commission reviewed petitions by the Managed Futures Trade Association and the Chicago Board of Trade which argued against aggregation based only on ownership.66 In response to the petition, however, the Commission stated that:

    66 The Managed Futures Trade Association petition requested that the Commission amend the aggregation standard for exchange-set speculative position limits in regulation § 1.61(g) (now regulation § 150.5(g)), by adding a proviso to exclude the separate accounts of a commodity pool where trading in those accounts is directed by unaffiliated CTAs acting independently. See Exemption From Speculative Position Limits for Positions Which Have a Common Owner but Which Are Independently Controlled; Proposed Rule, 53 FR 13290, 13291-92 (Apr. 22, 1988). The petition argued the ownership standard, as applied to “multiple-advisor commodity pools, is unfair and unrealistic” because while the commodity pool may own the positions in the separate accounts, the CPO does not control trading of those positions (the unaffiliated CTA does) and therefore the pool's ownership of the positions will not result in unwarranted price fluctuations. See id. at 13292.

    The petition from the Chicago Board of Trade (which is now a part of CME) sought to revise the aggregation standard so as not to require aggregation based solely on ownership without control. See id.

    Both ownership and control have long been included as the appropriate aggregation criteria in the Act and Commission regulations. Generally, inclusion of both criteria has resulted in a bright-line test for aggregating positions. And as noted above, although the factual circumstances surrounding the control of accounts and positions may vary, ownership generally is clear.

    . . . In the absence of an ownership criterion in the aggregation standard, each potential speculative position limit violation would have to be analyzed with regard to the individual circumstances surrounding the degree of trading control of the positions in question. This would greatly increase uncertainty.67

    67See id. In response to the petitions, however, the Commission proposed the IAC exemption, which provides “an additional exemption from speculative position limits for positions of commodity pools which are traded in separate accounts by unaffiliated account controllers acting independently.” Id.

    Contrary to CME's and NGSA's contentions, the aggregation requirement in CEA section 4a is not phrased in terms of whether the owner holds an interest in a trading account. In fact, the word “account” does not even appear in the statute.68 CME and NGSA incorrectly contend that the Commission has limited its interpretation of the term “account” to include only a personally owned futures trading account; the Commission has not. In 1986, for example, the Commission considered a comment that the use of the term “account” means a direct interest in a specific futures trading account, and rejected this view, writing that the Commission “has generally interpreted and applied these rules more broadly” and that “[t]o conduct effective market surveillance and enforce speculative limits, the Commission must know the relationship in terms of financial interest or control between traders as well as that between a trader and trading accounts.” 69 CME and NGSA also misread the 1999 Amendments, which specifically stated that “the Commission. . . interprets the `held or controlled' criteria as applying separately to ownership of positions or to control of trading decisions .” 70 CME misconstrues the 1999 amendments' reference to the Commission's large-trader reporting system as being related to the aggregation rules for the position limits regime.71 But the 1999 amendments are consistent, because they included an explanation of situations in which reporting could be required based on both control and ownership.72 And, CME's citation to exemptions for aggregation for certain commodity pools 73 simply prove too much—the reason these exemptions are in place is because aggregation would be required due to ownership or control of the commodity pools if the exemptions were not available.

    68 As noted above, section 4a(a)(1) of the CEA provides that “In determining whether any person has exceeded such limits, the positions held and trading done by any persons directly or indirectly controlled by such person shall be included with the positions held and trading done by such person.” 7 U.S.C. 6a(a)(1).

    69See Reports Filed by Contract Markets, Futures Commission Merchants, Clearing Members, Foreign Brokers and Large Traders; Final Rule, 51 FR 4712, 4716 (Feb. 7, 1986) (referring to the use of the term “account” in regulation 18.04, which required reports relating to persons whose accounts are controlled by the reporting trader and persons who have a financial interest of 10 percent or more in the account of the trader) (emphasis added).

    70See 1999 Amendments, 64 FR at 24043 and fn. 26 (referring to rule 18.01 requirement of aggregation for reporting purposes when a trader “holds, has a financial interest in or controls positions in more than one account”).

    71See CL-CME at 12, citing the 1999 Amendments, 64 FR at 24043.

    72 The Commission stated that its “routine large trader reporting system is set up so that it does not double count positions which may be controlled by one and traded for the beneficial ownership of another. In such circumstances, although the routine reporting system will aggregate the positions reported by FCMs using only the control criterion, the staff may determine that certain accounts or positions should also be aggregated using the ownership criterion or may by special call receive reports directly from a trader.” 1999 Amendments, 64 FR at 24043 and fn. 26.

    73See CL-CME at 13, citing rule § 150.4(b) and (c).

    Last, CME and NGSA misread the Commission's enforcement history, which in fact does not contradict the Commission's traditional view of aggregation of owned entity positions as being required on the basis of either control or ownership. The first case cited by CME and NGSA did not enforce the Commission's aggregation standard, but rather section 9(a)(4) of the CEA, which makes it unlawful for any person willfully to conceal any material fact to a board of trade acting in furtherance of its official duties under the Act.74 In this case, respondent companies willfully failed to disclose to a DCM the true nature of the relationship and the limited nature of the barriers to trading information flow between two companies.75 Nowhere does the case speak to whether aggregation standards may be applied based on either or both of ownership or control.

    74See In the Matter of Vitol at 2.

    75See id.

    In describing the second case it cites, CME seems to have made assumptions that never appear in the Commission's decision. The only facts actually cited as relevant in this case were that a company and its two wholly-owned subsidiaries acted as counterparties in over-the-counter swaps contracts, engaged in futures trading, and held aggregate net-long positions in excess of the Commission's all-months position limits.76 Nowhere did the Commission find, as erroneously described by CME, that the companies off-set the “same risk acquired from similarly situated counterparties.” 77 Nor did the Commission find, as CME incorrectly asserts, that the subsidiaries traded as agents for the corporate parent.78

    76See In the Matter of Citigroup at 2-3. The Commission's order specifically stated that “The positions of Citigroup's wholly-owned subsidiaries, including CGML, in December 2009 are subject to aggregation pursuant to Commission Regulation § 150.4(a)-(b).” See id. at 2, n. 2.

    77See CL-CME at 15.

    78See id. Rather, the Commission's order found the parent company liable for the violations of its wholly-owned subsidiaries under section 2(a)(1)(B) of the CEA because the actions of the wholly-owned subsidiaries occurred within the scope of their employment, office, or agency with respect to the parent company. See In the Matter of Citigroup at 4, citing CEA section 2(a)(1)(B) and regulation 1.2.

    The Commission solicits comment on all aspects of the revision to its proposed modification of rule 150.4 described herein. Commenters are invited to address whether proposed rule § 150.4(b)(2), as revised, appropriately furthers the overall purposes of the position limits regime while not creating opportunities for circumvention of the aggregation requirement.

    III. Related Matters A. Considerations of Costs and Benefits

    Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of the following five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

    On November 15, 2013, the Commission proposed certain modifications to its policy for aggregation under the part 150 position limits regime (i.e., the 2013 Aggregation Proposal).79 The 2013 Aggregation Proposal provided the public with an opportunity to comment on the Commission's cost-and-benefit considerations of the proposed amendments, including identification and assessment of any costs and benefits not discussed therein. In particular, the Commission requested that commenters provide data or any other information that they believe supports their positions with respect to the Commission's considerations of costs and benefits.

    79See 2013 Aggregation Proposal, 78 FR at 68958-59.

    In this release, the Commission proposes to revise the 2013 Aggregation Proposal so that any person who owns 10 percent or more of another entity would be permitted to disaggregate the positions of the entity under a unified set of conditions and procedures. All other aspects of the 2013 Aggregation Proposal, including the proposed criteria for disaggregation relief, remain the same.

    In the following, the Commission provides a general background for the 2013 proposed amendments and the current 2015 proposed revisions and discusses commenters' responses to the 2013 Aggregation Proposal that are relevant to its considerations of costs and benefits. The Commission further considers the expected costs and benefits of the 2015 proposed revisions in light of the five factors outlined in section 15(a).

    Using the existing regulation 150.4 as the baseline for comparison,80 the Commission considers in this section the incremental costs and benefits that arise from the proposed 2015 revisions.81 That is, if the proposed 2015 revisions are not adopted, the aggregation standards that would apply would be those described in the Commission's existing regulation 150.4. The 2013 Aggregation Proposal set forth the costs and benefits of the Commission's proposed amendments of existing regulation 150.4. All aspects of the 2013 Aggregation Proposal's considerations of costs and benefits remain the same other than those related specifically to the instant proposal to allow persons owning 10 percent or more of another entity to disaggregate the positions of the entity under a unified set of conditions and procedures. Thus, while the existing regulation 150.4 serves as the baseline for this consideration of costs and benefits, we also discuss as appropriate for clarity the differences from the 2013 Aggregation Proposal.

    80 17 CFR 150.4.

    81 As expressed throughout this preamble, all aspects of the amendments as proposed in the 2013 Aggregation Proposal, except as explicitly modified by the revisions discussed in this 2015 release, remain the same.

    1. Background

    As discussed in the preamble, the Commission's historical approach to position limits in current part 150 generally consists of three components: (1) The level of each limit, which sets a threshold that restricts the number of speculative positions that a person may hold in the spot-month, in any individual month, and in all months combined; (2) an exemption for positions that constitute bona fide hedging transactions and certain other types of transactions; and (3) standards to determine which accounts and positions a person must aggregate for the purpose of determining compliance with the position limit levels.

    The third component of the Commission's position limits regime—aggregation—is set out in regulation 150.4.82 Regulation 150.4 requires that unless a particular exemption applies, a person must aggregate all positions for which that person: (1) Controls the trading decisions, or (2) has at least a 10 percent ownership or equity interest in an account or position; and in doing so the person must treat positions that are held by two or more persons pursuant to an express or implied agreement or understanding as if they were held by a single person.83

    82 17 CFR 150.4.

    83 17 CFR 150.4(b), (c), and (d).

    The 2013 Aggregation Proposal set forth conditions and procedures to grant a person permission to disaggregate the positions of a separately organized entity (“owned entity”). The permission or exemption is dependent on the person's level of ownership or equity interest in the owned entity. In the 2013 Aggregation Proposal, the ownership or equity-interest levels were divided into two categories: (1) A person with an interest of between 10 percent and 50 percent would be permitted to disaggregate the positions, upon filing a notice demonstrating compliance with certain requirements specified in the proposed amendments; (2) a person with a greater than 50 percent interest would have to apply on a case-by-case basis to the Commission for permission, and await the Commission's decision as to whether certain prerequisites enumerated in the 2013 Aggregation Proposal had been met.84

    84 Note that no aggregation would be required if the ownership or equity interest is below 10 percent.

    2. Comments on the 2013 Aggregation Proposal

    In response to the 2013 Aggregation Proposal, several commenters raised concerns about the costs and benefits associated with the proposed changes to regulation 150.4. CME declared that the Commission failed to consider adequately the costs and benefits of “every aspect” of the 2013 Aggregation Proposal.85 Yet, for the most part, commenters did not identify specific monetary costs or provide any quantitative information to support their arguments. Instead, they made the general statements that requiring owners without actual control to aggregate positions would weaken the ability of largely passive investors to provide capital investment and generate returns for their beneficiaries,86 and that it would run contrary to certain established corporate structures to provide functional and legal separation for individual operating businesses.87

    85 CL-CME at 6. See also CL-MidAmerican at 1.

    86 CL-SIFMA at 1.

    87 CL-MidAmerican at 2.

    NGSA and PEGCC expressed concern over attendant compliance costs for persons with greater than 50 percent interest in an owned entity.88 NGSA and MidAmerican asserted that the proposal would require new position-trading surveillance and compliance systems for owned entities, and involve more intraday coordination.89 NGSA identified another general cost: constraints on risk management programs when an owned entity's commodity trading is restricted to 20 percent of positions.90 PEGCC characterized the exemption-application process as unworkable because of the unlimited waiting period for Commission review and approval.91 As a result, the Commission's approach would create uncertainty for applicants and burden Commission staff resources.92 Furthermore, during the waiting period, applicants would have to expend costs to develop interim compliance programs.93

    88 CL-NGSA at 39; CL-PEGCC.

    89 CL-NGSA at 39; CL-MidAmerican at 2.

    90 CL-NGSA at 40.

    91 CL-PEGCC at 4, 5.

    92 CL-PEGCC at 4.

    93Id.

    Commenters also suggested alternatives to the exemption processes proffered in the 2013 Aggregation Proposal. Several commenters advised the Commission to accept a notice filing.94 PEGCC also recommended that the Commission modify the certifications requirement for the proposed greater than 50 percent ownership exemption. Instead of producing certifications from the owner entity and board members, PEGCC proposed that the Commission require a certification from the owner entity only.95 They also recommended that the Commission eliminate the grace period for seeking re-certification after the person loses its greater than 50 percent ownership exemption for failing to meet a condition.96 PEGCC remarked that the Commission had failed to provide any rationale for the grace period, and stated that the person should be able to apply for re-certification once it loses its status.97

    94See, e.g., CL-PEGCC at 6.

    95 CL-PEGCC at 7.

    96Id.

    97Id.

    3. The Current Proposal

    The Commission is proposing to revise the 2013 Aggregation Proposal to delete proposed rule § 150.4(b)(3) and § 150.4(c)(2), and to change proposed rule § 150.4(b)(2), so that the latter provision would apply to all persons with an ownership or equity interest in an owned entity of 10 percent or greater. More precisely, under these proposed revisions, a person with at least a 10 percent interest would not be required to aggregate an owned entity's positons, if such person files a notice attesting to no trading control and implementation of firewalls to prevent access to relevant information, among other conditions. The Commission is also proposing conforming changes in other sections of proposed rule 150.4.98

    98 See earlier sections of this preamble for a discussion on all proposed revisions to regulation 150.4.

    As discussed in Section III.A.2, commenters raised concerns and suggested several alternatives for the exemptive category covering owners with a greater-than-50-percent interest. The Commission recognizes that the proposed amendments for this category in the 2013 Aggregation Proposal may impose burdens on certain market participants. It has embraced some of the commenters' suggestions and revised the requirements for those market participants seeking relief from the aggregation obligations accordingly. The Commission welcomes comment on all aspects regarding the cost-and-benefit considerations of the 2015 proposed revisions. Commenters are encouraged to suggest additional alternatives that may result in a superior cost-and-benefit profile, and provide support for their position both qualitatively and quantitatively.

    4. Costs and Benefits

    As noted in the preamble, the Commission's general policy on aggregation is derived from CEA section 4a(a)(1), which directs the Commission to aggregate positions based on separate considerations of ownership, control, or persons acting pursuant to an express or implied agreement. The Commission's historical approach to its statutory aggregation obligation has thus included both ownership and control factors designed to prevent evasion of prescribed position limits. The Commission continues to believe that these factors together constitute an appropriate criterion for aggregation of that entity's positions.

    The Commission believes that the revisions proposed herein would maintain the Commission's historical approach to aggregation while adding thoughtful exemptions to relieve market participants from unnecessary burdens due to aggregation. Moreover, the proposed exemptions would only apply under legitimate conditions. As a result, the Commission's aggregation policy is more focused on targeting market participants that pose an actual risk of engaging in the activities which the position limits regime is intended to prevent.

    a. Benefits

    The primary purpose of requiring positions of owned entities to be aggregated is to prevent evasion of prescribed position limits through coordinated trading. The Commission recognizes, however, that an overly restrictive or prescriptive aggregation policy may result in unnecessary burdens or unintended consequences. Such unintended consequences may take the form of reduced liquidity because imposing aggregation requirements on owned entities that are not susceptible to coordinated trading would unnecessarily restrict their ability to trade commodity derivatives contracts. Moreover, as argued by some commenters, requiring passive investors to aggregate the positions of entities they own may potentially diminish capital investments in their businesses,99 or interfere with existing decentralized business structures.100 By providing exemptive relief to market participants under legitimate circumstances—for instance, the demonstration of no control over trading—potential negative effects on derivatives markets would be reduced.

    99 SIFMA Letter at p. 1.

    100 MidAmerican Letter at p. 2.

    The proposed 2015 revisions would also benefit market participants by mitigating their compliance burdens associated with the aggregation requirements as well as the position limits requirements more generally. Under the proposed exemptions, eligible market participants would not have to establish and maintain the infrastructure necessary to aggregate positions across owned entities. Further, an eligible entity with legitimate hedging needs and whose aggregated positions are above the position limits thresholds in the absence of any exemption would have the option of applying for an aggregation exemption instead of applying for a bona fide hedging exemption.

    Finally, under the proposed 2015 revisions, the same set of exemption standards and procedures would apply to a person with any level of ownership or equity interest in the owned entity being considered—as long as the level is high enough to trigger the aggregation requirements (i.e., at least 10 percent). This unified exemptive framework facilitates legal clarity and consistency. It also further mitigates the burdens facing market participants. Consider, for example, a parent-holding company that has different levels of ownership or equity interest in its various subsidiaries. Under the proposed unified framework, such parent-holding company would not need to establish and maintain multiple sets of systems for the purpose of obtaining aggregation exemptions for each of these subsidiaries.

    The Commission requests comment on its considerations of the benefits of the proposed 2015 revisions. Commenters are specifically encouraged to include both quantitative and qualitative assessments of these benefits, as well as data or other information to support such assessments.

    b. Costs

    To a large extent, market participants may already have incurred many of the compliance costs associated with existing regulation 150.4. The Commission and DCMs generally have required aggregation of positions starting at a 10 percent interest threshold under the current regulatory requirements of part 150 as well as the acceptable practices found in the prior version of part 38. The Commission therefore believes that market participants active on DCMs have already developed systems for aggregating positions across owned entities.101

    101 The 10 percent threshold has been in place for the nine agricultural contracts with federal limits for decades, and for other contracts where limits were imposed by DCMs and enforced by the Commission. See supra, note 15 (citing to the 1979 Aggregation Policy, 44 FR at 33843, where the Commission codified its view that, except in certain limited circumstances, a financial interest in an account at or above 10 percent “will constitute the trader as an account owner for aggregation purposes”).

    The Commission anticipates there are two main types of direct costs associated with the 2015 proposed revisions. First, there would be initial costs incurred by entities as they develop and maintain systems to determine whether they may be eligible for the proposed exemptions. Second, there would be costs related to subsequent filings required by the exemptions. In addition, some entities may also sustain direct costs for modifying existing operational protocols—such as firewalls and reporting schemes—to be eligible to claim an exemption. It is difficult to quantify these direct costs because such costs are heavily dependent on the individual characteristics of each entity's current systems, its corporate structure, and its use of commodity derivatives, among other attributes.

    Should the Commission's other proposed amendments to the position limits regime in part 150 be adopted as proposed,102 the aggregation requirements would cover a greater set of commodity derivative contracts. Part 150 applies currently to futures and options contracts referencing nine commodities as stated in regulation 150.2. The other 2013 proposed amendments would expand the list, and would apply on a federal level to commodity derivative contracts, including swaps, based on an additional 19 commodities. This expansion would likely create additional compliance costs for futures market participants because they would have to broaden current procedures for aggregating futures positions to include swaps positions, as well as for swaps market participants, who would be required to develop and maintain systems to comply with the aggregation rules. Further, exchanges would be required to conform their aggregation policies to the Commission's aggregation policy. However, the revisions proposed herein provide exemptive relief from these requirements.

    102See Position Limits for Derivatives, 78 FR 75680 (December 12, 2013).

    In accordance with the Paperwork Reduction Act, the Commission has quantified the filing costs required to claim the proposed exemptions discussed in Section III.C below. The Commission estimates that 240 entities will submit exemption claims for a total of 340 responses per year. The 240 entities will incur a total burden of 6,850 labor hours at a cost of approximately $822,000 annually to claim exemptive relief under regulation 150.4, as proposed herein.103

    103 See Section III.C of this release for a more detailed summary of the Commission's PRA burden estimates.

    The Commission requests comment on its consideration of the costs imposed by the proposed 2015 revisions. Commenters are specifically encouraged to submit both qualitative and quantitative estimates of the potential costs, as well as data or other information to support such estimates.

    5. Section 15(a) Considerations a. Protection of Market Participants and the Public

    As pointed out above, the proposed aggregation exemptions would be granted to an entity only upon demonstrating lack of trading control as well as the implementation of information firewalls. These conditions help to ensure that the effectiveness of the Commission's aggregation policy is not jeopardized, thereby protecting the public.

    b. Efficiency, Competition, and Financial Integrity of Markets

    An important rationale for providing aggregation exemptions is to avoid overly restricting commodity derivatives trading of owned entities not susceptible to coordinated trading. As discussed above, such trading restrictions may potentially result in reduced liquidity in commodity derivatives markets, diminished investment by largely passive investors, or distortions of existing decentralized business structures. Thus, the proposed exemptions help promote efficiency and competition, and protect market integrity by helping to prevent these undesirable consequences.

    c. Price Discovery

    By avoiding overly restricting commodity derivatives trading of those entities that are not susceptible to coordinated trading, the proposed exemptions may help improve liquidity by encouraging more market participation. This might improve the price discovery function or it might have only a negligible effect on the price discovery function of relevant derivative markets.

    d. Risk Management

    The imposition of position limits helps to restrict market participants from amassing positions that are of sufficient size potentially to cause sudden or unreasonable fluctuations or unwarranted changes in the price of a commodity derivatives contract, or to be used to manipulate the market price. The proposed exemptions would allow an owner to disaggregate the positions of an owned entity in circumstances where the Commission has determined that the positions are less of a risk of disrupting market operation through coordinated trading. The Commission believes that the proposed exemptions would not materially inhibit the use of commodity derivatives for hedging, as bona fide hedging exemptions are available to any entity regardless of aggregation of positions and exemptions from aggregation.

    e. Other Public Interest Considerations

    As pointed out above, the proposed aggregation exemptions would mitigate market participants' compliance burdens with the aggregation requirements and the position limits requirements more generally. The Commission has not identified any other public interest considerations related to the costs and benefits of the proposed exemptive relief. The Commission requests comment on any potential public interest considerations, as well as data or other information to support such considerations.

    6. Section 15(b) Considerations

    Section 15(b) of the CEA requires the Commission to consider the public interest to be protected by the antitrust laws and to endeavor to take the least anticompetitive means of achieving the objectives, policies and purposes of the CEA, before promulgating a regulation under the CEA or issuing certain orders. The Commission preliminarily believes that the proposed exemptive relief will be consistent with the public interest protected by the antitrust laws. The proposal would broaden the availability of one category of relief from the aggregation requirement to more owners and owned entities, retaining conditions intended to address the Commission's concerns about circumvention of position limits by coordinated trading or direct or indirect influence between entities. The Commission requests comment on any considerations related to the public interest to be protected by the antitrust laws and potential anticompetitive effects of the proposal, as well as data or other information to support such considerations.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (“RFA”) requires that agencies consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.104 A regulatory flexibility analysis or certification typically is required for “any rule for which the agency publishes a general notice of proposed rulemaking pursuant to” the notice-and-comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b).105 The requirements related to the proposed amendments fall mainly on registered entities, exchanges, FCMs, swap dealers, clearing members, foreign brokers, and large traders. The Commission has previously determined that registered DCMs, FCMs, swap dealers, major swap participants, eligible contract participants, SEFs, clearing members, foreign brokers and large traders are not small entities for purposes of the RFA.106 While the requirements under the proposed rulemaking may impact non-financial end users, the Commission notes that position limits levels apply only to large traders. Accordingly, the Chairman, on behalf of the Commission, hereby certifies, on behalf of the Commission, pursuant to 5 U.S.C. 605(b), that the actions proposed to be taken herein would not have a significant economic impact on a substantial number of small entities. The Chairman made the same certification in the 2013 Aggregation Proposal,107 and the Commission did not receive any comments on the RFA.

    104 44 U.S.C. 601 et seq.

    105 5 U.S.C. 601(2), 603-05.

    106See Policy Statement and Establishment of Definitions of “Small Entities” for Purposes of the Regulatory Flexibility Act, 47 FR 18618, 18619, Apr. 30, 1982 (DCMs, FCMs, and large traders) (“RFA Small Entities Definitions”); Opting Out of Segregation, 66 FR 20740, 20743, Apr. 25, 2001 (eligible contract participants); Position Limits for Futures and Swaps; Final Rule and Interim Final Rule, 76 FR 71626, 71680, Nov. 18, 2011 (clearing members); Core Principles and Other Requirements for Swap Execution Facilities, 78 FR 33476, 33548, June 4, 2013 (SEFs); A New Regulatory Framework for Clearing Organizations, 66 FR 45604, 45609, Aug. 29, 2001 (DCOs); Registration of Swap Dealers and Major Swap Participants, 77 FR 2613, Jan. 19, 2012, (swap dealers and major swap participants); and Special Calls, 72 FR 50209, Aug. 31, 2007 (foreign brokers).

    107See 78 FR 68973.

    C. Paperwork Reduction Act 1. Overview

    The Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501 et seq., imposes certain requirements on Federal agencies in connection with their conducting or sponsoring any collection of information as defined by the PRA. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number issued by the Office of Management and Budget (“OMB”). Certain provisions of the proposed rules would result in amendments to previously-approved collection of information requirements within the meaning of the PRA. Therefore, the Commission is submitting to OMB for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11 the information collection requirements proposed in this rulemaking proposal as an amendment to the previously-approved collection associated with OMB control number 3038-0013.

    If adopted, responses to this collection of information would be mandatory. The Commission will protect proprietary information according to the Freedom of Information Act and 17 CFR part 145, titled “Commission Records and Information.” In addition, the Commission emphasizes that section 8(a)(1) of the Act strictly prohibits the Commission, unless specifically authorized by the Act, from making public “data and information that would separately disclose the business transactions or market positions of any person and trade secrets or names of customers.” The Commission also is required to protect certain information contained in a government system of records pursuant to the Privacy Act of 1974.

    On November 15, 2013, the Commission published in the Federal Register a notice of proposed modifications to part 150 of the Commission's regulations (i.e., the 2013 Aggregation Proposal). The modifications addressed the policy for aggregation under the Commission's position limits regime for futures and option contracts on nine agricultural commodities set forth in part 150, and noted that the modifications would also apply to the position limits regimes for 28 exempt and agricultural commodity futures and options contracts and the physical commodity swaps that are economically equivalent to such contracts, if such regimes are finalized. The Commission is now proposing a revision to its 2013 Aggregation Proposal.

    Specifically, the Commission is now proposing that all persons holding a greater than 10 percent ownership or equity interest in another entity could avail themselves of an exemption in proposed rule § 150.4(b)(2) to disaggregate the positions of the owned entity. To claim the exemption, a person would need to meet certain criteria and file a notice with the Commission in accordance with proposed rule § 150.4(c). The notice filing would need to demonstrate compliance with certain conditions set forth in proposed rule § 150.4(b)(2)(i)(A) through (E). Similar to other exemptions from aggregation, the notice filing would be effective upon submission to the Commission, but the Commission may call for additional information as well as reject, modify or otherwise condition such relief. Further, such person is obligated to amend the notice filing in the event of a material change to the filing. The Commission now proposes to delete rule § 150.4(b)(3) from its proposal. This rule would have established a similar but separate owned-entity exemption with more intensive qualifications for exemption.

    2. Methodology and Assumptions

    It is not possible at this time to precisely determine the number of respondents affected by the proposed revision to the 2013 Aggregation Proposal. The proposed revision relates to exemptions that a market participant may elect to take advantage of, meaning that without intimate knowledge of the day-to-day business decisions of all its market participants, the Commission could not know which participants, or how many, may elect to obtain such an exemption. Further, the Commission is unsure of how many participants not currently in the market may be required to or may elect to incur the estimated burdens in the future.

    These limitations notwithstanding, the Commission has made best-effort estimations regarding the likely number of affected entities for the purposes of calculating burdens under the PRA. The Commission used its proprietary data, collected from market participants, to estimate the number of respondents for each of the proposed obligations subject to the PRA by estimating the number of respondents who may be close to a position limit and thus may file for relief from aggregation requirements.

    The Commission's estimates concerning wage rates are based on 2011 salary information for the securities industry compiled by the Securities Industry and Financial Markets Association (“SIFMA”). The Commission is using a figure of $120 per hour, which is derived from a weighted average of salaries across different professions from the SIFMA Report on Management & Professional Earnings in the Securities Industry 2011, modified to account for an 1800-hour work-year, adjusted to account for the average rate of inflation in 2012. This figure was then multiplied by 1.33 to account for benefits 108 and further by 1.5 to account for overhead and administrative expenses.109 The Commission anticipates that compliance with the provisions would require the work of an information technology professional; a compliance manager; an accounting professional; and an associate general counsel. Thus, the wage rate is a weighted national average of salary for professionals with the following titles (and their relative weight); “programmer (average of senior and non-senior)” (15% weight), “senior accountant” (15%) “compliance manager” (30%), and “assistant/associate general counsel” (40%). All monetary estimates have been rounded to the nearest hundred dollars.

    108 The Bureau of Labor Statistics reports that an average of 32.8% of all compensation in the financial services industry is related to benefits. This figure may be obtained on the Bureau of Labor Statistics Web site, at http://www.bls.gov/news.release/ecec.t06.htm. The Commission rounded this number to 33% to use in its calculations.

    109 Other estimates of this figure have varied dramatically depending on the categorization of the expense and the type of industry classification used (see, e.g., BizStats at http://www.bizstats.com/corporation-industry-financials/finance-insurance-52/securities-commodity-contracts-other-financial-investments-523/commodity-contracts-dealing-and-brokerage-523135/show and Damodaran Online at http://pages.stern.nyu.edu/~adamodar/pc/datasets/uValuedata.xls. The Commission has chosen to use a figure of 50% for overhead and administrative expenses to attempt to conservatively estimate the average for the industry.

    The Commission welcomes comment on its assumptions and estimates.

    3. Collections of Information

    Proposed rule § 150.4(b)(2) would require qualified persons to file a notice in order to claim exemptive relief from aggregation. Further, proposed rule § 150.4(b)(2)(ii) states that the notice is to be filed in accordance with proposed rule § 150.4(c), which requires a description of the relevant circumstances that warrant disaggregation and a statement that certifies that the conditions set forth in the exemptive provision have been met. Previously proposed rule § 150.4(b)(3) (which the Commission is now deleting from the proposal) would have specified that qualified persons may request an exemption from aggregation in accordance with proposed rule § 150.4(c). Such a request would be required to include a description of the relevant circumstances that warrant disaggregation and a statement certifying the conditions have been met. Persons claiming these exemptions would be required to submit to the Commission, as requested, such information as relates to the claim for exemption. An updated or amended notice must be filed with the Commission upon any material change.

    In the 2013 Aggregation Proposal, the Commission estimated that 100 entities will each file two notices annually under proposed rule § 150.4(b)(2), at an average of 20 hours per filing. Thus, the Commission approximates a total per entity burden of 40 labor hours annually. At an estimated labor cost of $120, the Commission estimates a cost of approximately $4,800 per entity for filings under proposed rule § 150.4(b)(2).

    The Commission also estimated that 25 entities would each file one notice annually under proposed rule § 150.4(b)(3), at an average of 30 hours per filing. Thus, the Commission approximates a total per entity burden of 30 labor hours annually. At an estimated labor cost of $120, the Commission estimates a cost of approximately $3,600 per entity for filings under proposed rule § 150.4(b)(3).

    For this proposed revision to the 2013 Aggregation Proposal, the Commission estimates that the 25 entities that would have filed one notice annually under proposed rule § 150.4(b)(3) will instead file those notices under proposed rule § 150.4(b)(2). The burden for each such filing would be reduced by 10 hours (i.e., 30 hours minus 20 hours) and $1,200 (i.e., 10 hours times $120 per hour).

    Thus, while the Commission estimates that the effect of this proposed revision will not change the number of entities making filings or the number of responses in order to claim exemptive relief under proposed rule 150.4 (so the estimate in the 2013 Aggregation Proposal that 240 entities will submit a total of 340 responses per year will remain the same),110 the total burden will be reduced to 6,850 labor hours (from 7,100 labor hours) at a cost of approximately $822,000 (instead of $852,000) annually.

    110 In the 2013 Aggregation Proposal, the Commission estimated that 75 entities would each file one notice annually under proposed rule § 150.4(b)(5) at an average of 10 labor hours and cost of approximately $1,200 per filing, and that 40 entities would each file one notice annually under proposed rule § 150.4(b)(8) at an average of 40 labor hours and cost of approximately $4,800 per filing. These estimates remain unchanged.

    4. Information Collection Comments

    The Commission invites the public and other federal agencies to comment on any aspect of the reporting and recordkeeping burdens discussed above. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments in order to: (1) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) evaluate the accuracy of the Commission's estimate of the burden of the proposed collections of information; (3) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collections of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.

    Comments may be submitted directly to the Office of Information and Regulatory Affairs, by fax at (202) 395-6566 or by email at [email protected]. Please provide the Commission with a copy of comments submitted so that all comments can be summarized and addressed in the final regulation preamble. Refer to the ADDRESSES section of this document for comment submission instructions to the Commission. A copy of the supporting statements for the collection of information discussed above may be obtained by visiting RegInfo.gov. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this release. Consequently, a comment to OMB is most assured of being fully considered if received by OMB (and the Commission) within 30 days after the publication of this notice of proposed rulemaking.

    Finally, it should be noted that the following proposed amendments to part 150 may require conforming technical changes if the Commission also adopts any proposed amendments to its regulations regarding position limits.111

    111See Position Limits for Derivatives, 78 FR 75680 (December 12, 2013).

    List of Subjects in 17 CFR Part 150

    Bona fide hedging, Position limits, Referenced contracts.

    For the reasons discussed in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR part 150 as follows:

    PART 150—LIMITS ON POSITIONS 1. The authority citation for part 150 is revised to read as follows: Authority:

    7 U.S.C. 6a, 6c, and 12a(5), as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (2010).

    2. Revise paragraphs (d) and (e)(2) and (5) of § 150.1 to read as follows:
    § 150.1 Definitions.

    (d) Eligible entity means a commodity pool operator; the operator of a trading vehicle which is excluded, or which itself has qualified for exclusion from the definition of the term “pool” or “commodity pool operator,” respectively, under § 4.5 of this chapter; the limited partner, limited member or shareholder in a commodity pool the operator of which is exempt from registration under § 4.13 of this chapter; a commodity trading advisor; a bank or trust company; a savings association; an insurance company; or the separately organized affiliates of any of the above entities:

    (1) Which authorizes an independent account controller independently to control all trading decisions with respect to the eligible entity's client positions and accounts that the independent account controller holds directly or indirectly, or on the eligible entity's behalf, but without the eligible entity's day-to-day direction; and

    (2) Which maintains:

    (i) Only such minimum control over the independent account controller as is consistent with its fiduciary responsibilities to the managed positions and accounts, and necessary to fulfill its duty to supervise diligently the trading done on its behalf; or

    (ii) If a limited partner, limited member or shareholder of a commodity pool the operator of which is exempt from registration under § 4.13 of this chapter, only such limited control as is consistent with its status.

    (e) * * *

    (2) Over whose trading the eligible entity maintains only such minimum control as is consistent with its fiduciary responsibilities to the managed positions and accounts to fulfill its duty to supervise diligently the trading done on its behalf or as consistent with such other legal rights or obligations which may be incumbent upon the eligible entity to fulfill;

    (5) Who is:

    (i) Registered as a futures commission merchant, an introducing broker, a commodity trading advisor, or an associated person of any such registrant, or

    (ii) A general partner, managing member or manager of a commodity pool the operator of which is excluded from registration under § 4.5(a)(4) of this chapter or § 4.13 of this chapter, provided that such general partner, managing member or manager complies with the requirements of § 150.4(c).

    § 150.3 [Amended]
    3. Amend § 150.3 as follows: a. Remove the semicolon and the word “or” at the end of paragraph (a)(3); b. Add a period at the end of paragraph (a)(3); and c. Remove paragraph (a)(4). 4. Revise § 150.4 to read as follows:
    § 150.4 Aggregation of positions.

    (a) Positions to be aggregated—(1) Trading control or 10 percent or greater ownership or equity interest. For the purpose of applying the position limits set forth in § 150.2, unless an exemption set forth in paragraph (b) of this section applies, all positions in accounts for which any person, by power of attorney or otherwise, directly or indirectly controls trading or holds a 10 percent or greater ownership or equity interest must be aggregated with the positions held and trading done by such person. For the purpose of determining the positions in accounts for which any person controls trading or holds a 10 percent or greater ownership or equity interest, positions or ownership or equity interests held by, and trading done or controlled by, two or more persons acting pursuant to an expressed or implied agreement or understanding shall be treated the same as if the positions or ownership or equity interests were held by, or the trading were done or controlled by, a single person.

    (2) Substantially identical trading. Notwithstanding the provisions of paragraph (b) of this section, for the purpose of applying the position limits set forth in § 150.2, any person that, by power of attorney or otherwise, holds or controls the trading of positions in more than one account or pool with substantially identical trading strategies, must aggregate all such positions.

    (b) Exemptions from aggregation. For the purpose of applying the position limits set forth in § 150.2, and notwithstanding the provisions of paragraph (a)(1) of this section, but subject to the provisions of paragraph (a)(2) of this section, the aggregation requirements of this section shall not apply in the circumstances set forth in this paragraph.

    (1) Exemption for ownership by limited partners, shareholders or other pool participants. Any person that is a limited partner, limited member, shareholder or other similar type of pool participant holding positions in which the person by power of attorney or otherwise directly or indirectly has a 10 percent or greater ownership or equity interest in a pooled account or positions need not aggregate the accounts or positions of the pool with any other accounts or positions such person is required to aggregate, except that such person must aggregate the pooled account or positions with all other accounts or positions owned or controlled by such person if such person:

    (i) Is the commodity pool operator of the pooled account;

    (ii) Is a principal or affiliate of the operator of the pooled account, unless:

    (A) The pool operator has, and enforces, written procedures to preclude the person from having knowledge of, gaining access to, or receiving data about the trading or positions of the pool;

    (B) The person does not have direct, day-to-day supervisory authority or control over the pool's trading decisions;

    (C) The person, if a principal of the operator of the pooled account, maintains only such minimum control over the commodity pool operator as is consistent with its responsibilities as a principal and necessary to fulfill its duty to supervise the trading activities of the commodity pool; and

    (D) The pool operator has complied with the requirements of paragraph (c) of this section on behalf of the person or class of persons; or

    (iii) Has, by power of attorney or otherwise directly or indirectly, a 25 percent or greater ownership or equity interest in a commodity pool, the operator of which is exempt from registration under § 4.13 of this chapter.

    (2) Exemption for certain ownership of greater than 10 percent in an owned entity. Any person with an ownership or equity interest in an owned entity of 10 percent or greater (other than an interest in a pooled account subject to paragraph (b)(1) of this section), need not aggregate the accounts or positions of the owned entity with any other accounts or positions such person is required to aggregate, provided that:

    (i) Such person, including any entity that such person must aggregate, and the owned entity:

    (A) Do not have knowledge of the trading decisions of the other;

    (B) Trade pursuant to separately developed and independent trading systems;

    (C) Have and enforce written procedures to preclude each from having knowledge of, gaining access to, or receiving data about, trades of the other. Such procedures must include document routing and other procedures or security arrangements, including separate physical locations, which would maintain the independence of their activities;

    (D) Do not share employees that control the trading decisions of either; and

    (E) Do not have risk management systems that permit the sharing of trades or trading strategy; and

    (ii) Such person complies with the requirements of paragraph (c) of this section.

    (3) [Reserved]

    (4) Exemption for accounts held by futures commission merchants. A futures commission merchant or any affiliate of a futures commission merchant need not aggregate positions it holds in a discretionary account, or in an account which is part of, or participates in, or receives trading advice from a customer trading program of a futures commission merchant or any of the officers, partners, or employees of such futures commission merchant or of its affiliates, if:

    (i) A person other than the futures commission merchant or the affiliate directs trading in such an account;

    (ii) The futures commission merchant or the affiliate maintains only such minimum control over the trading in such an account as is necessary to fulfill its duty to supervise diligently trading in the account;

    (iii) Each trading decision of the discretionary account or the customer trading program is determined independently of all trading decisions in other accounts which the futures commission merchant or the affiliate holds, has a financial interest of 10 percent or more in, or controls; and

    (iv) The futures commission merchant or the affiliate has complied with the requirements of paragraph (c) of this section.

    (5) Exemption for accounts carried by an independent account controller. An eligible entity need not aggregate its positions with the eligible entity's client positions or accounts carried by an authorized independent account controller, as defined in § 150.1(e), except for the spot month in physical-delivery commodity contracts, provided that the eligible entity has complied with the requirements of paragraph (c) of this section, and that the overall positions held or controlled by such independent account controller may not exceed the limits specified in § 150.2.

    (i) Additional requirements for exemption of affiliated entities. If the independent account controller is affiliated with the eligible entity or another independent account controller, each of the affiliated entities must:

    (A) Have, and enforce, written procedures to preclude the affiliated entities from having knowledge of, gaining access to, or receiving data about, trades of the other. Such procedures must include document routing and other procedures or security arrangements, including separate physical locations, which would maintain the independence of their activities; provided, however, that such procedures may provide for the disclosure of information which is reasonably necessary for an eligible entity to maintain the level of control consistent with its fiduciary responsibilities to the managed positions and accounts and necessary to fulfill its duty to supervise diligently the trading done on its behalf;

    (B) Trade such accounts pursuant to separately developed and independent trading systems;

    (C) Market such trading systems separately; and

    (D) Solicit funds for such trading by separate disclosure documents that meet the standards of § 4.24 or § 4.34 of this chapter, as applicable, where such disclosure documents are required under part 4 of this chapter.

    (ii) [Reserved]

    (6) Exemption for underwriting. A person need not aggregate the positions or accounts of an owned entity if the ownership or equity interest is based on the ownership of securities constituting the whole or a part of an unsold allotment to or subscription by such person as a participant in the distribution of such securities by the issuer or by or through an underwriter.

    (7) Exemption for broker-dealer activity. A broker-dealer registered with the Securities and Exchange Commission, or similarly registered with a foreign regulatory authority, need not aggregate the positions or accounts of an owned entity if the ownership or equity interest is based on the ownership of securities acquired in the normal course of business as a dealer, provided that such person does not have actual knowledge of the trading decisions of the owned entity.

    (8) Exemption for information sharing restriction. A person need not aggregate the positions or accounts of an owned entity if the sharing of information associated with such aggregation (such as, only by way of example, information reflecting the transactions and positions of a such person and the owned entity) creates a reasonable risk that either person could violate state or federal law or the law of a foreign jurisdiction, or regulations adopted thereunder, provided that such person does not have actual knowledge of information associated with such aggregation, and provided further that such person has filed a prior notice pursuant to paragraph (c) of this section and included with such notice a written memorandum of law explaining in detail the basis for the conclusion that the sharing of information creates a reasonable risk that either person could violate state or federal law or the law of a foreign jurisdiction, or regulations adopted thereunder. However, the exemption in this paragraph shall not apply where the law or regulation serves as a means to evade the aggregation of accounts or positions. All documents submitted pursuant to this paragraph shall be in English, or if not, accompanied by an official English translation.

    (9) Exemption for higher-tier entities. If an owned entity has filed a notice under paragraph (c) of this section, any person with an ownership or equity interest of 10 percent or greater in the owned entity need not file a separate notice identifying the same positions and accounts previously identified in the notice filing of the owned entity, provided that:

    (i) Such person complies with the conditions applicable to the exemption specified in the owned entity's notice filing, other than the filing requirements; and

    (ii) Such person does not otherwise control trading of the accounts or positions identified in the owned entity's notice.

    (iii) Upon call by the Commission, any person relying on the exemption paragraph (b)(9) of this section shall provide to the Commission such information concerning the person's claim for exemption. Upon notice and opportunity for the affected person to respond, the Commission may amend, suspend, terminate, or otherwise modify a person's aggregation exemption for failure to comply with the provisions of this section.

    (c) Notice filing for exemption. (1) Persons seeking an aggregation exemption under paragraph (b)(1)(ii), (b)(2), (b)(4), (b)(5), or (b)(8) of this section shall file a notice with the Commission, which shall be effective upon submission of the notice, and shall include:

    (i) A description of the relevant circumstances that warrant disaggregation; and

    (ii) A statement of a senior officer of the entity certifying that the conditions set forth in the applicable aggregation exemption provision have been met.

    (2) [Reserved]

    (3) Upon call by the Commission, any person claiming an aggregation exemption under this section shall provide such information demonstrating that the person meets the requirements of the exemption, as is requested by the Commission. Upon notice and opportunity for the affected person to respond, the Commission may amend, suspend, terminate, or otherwise modify a person's aggregation exemption for failure to comply with the provisions of this section.

    (4) In the event of a material change to the information provided in any notice filed under paragraph (c) of this section, an updated or amended notice shall promptly be filed detailing the material change.

    (5) Any notice filed under paragraph (c) of this section shall be submitted in the form and manner provided for in paragraph (d) of this section.

    (d) Form and manner of reporting and submitting information or filings. Unless otherwise instructed by the Commission or its designees, any person submitting reports under this section shall submit the corresponding required filings and any other information required under this part to the Commission using the format, coding structure, and electronic data transmission procedures approved in writing by the Commission. Unless otherwise provided in this section, the notice shall be effective upon filing. When the reporting entity discovers errors or omissions to past reports, the entity shall so notify the Commission and file corrected information in a form and manner and at a time as may be instructed by the Commission or its designee.

    (e) Delegation of authority to the Director of the Division of Market Oversight. (1) The Commission hereby delegates, until it orders otherwise, to the Director of the Division of Market Oversight or such other employee or employees as the Director may designate from time to time, the authority:

    (i) [Reserved]

    (ii) In paragraph (b)(9)(iii) of this section to call for additional information from a person claiming the exemption in paragraph (b)(9)(i) of this section.

    (iii) In paragraph (d) of this section for providing instructions or determining the format, coding structure, and electronic data transmission procedures for submitting data records and any other information required under this part.

    (2) The Director of the Division of Market Oversight may submit to the Commission for its consideration any matter which has been delegated in this section.

    (3) Nothing in this section prohibits the Commission, at its election, from exercising the authority delegated in this section.

    Issued in Washington, DC, on September 23, 2015, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Note:

    The following appendices will not appear in the Code of Federal Regulations.

    Appendices to Aggregation of Positions Supplemental Notice of Proposed Rulemaking—Commission Voting Summary, Chairman's Statement, and Commissioner's Statement Appendix 1—Commission Voting Summary On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative. Appendix 2—Statement of Chairman Timothy G. Massad

    As part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress mandated that the CFTC adopt limits to address the risk of excessive speculation in physical commodity derivative contracts. In 2013, the Commission proposed these rules on “position limits.” These proposed rules included guidelines to determine which accounts and positions a person with an ownership interest must aggregate to determine compliance. In addition, the Commission separately proposed an exemption process from this “aggregation” requirement.

    Today, we are proposing a simplification of that exemption process. Instead of requiring a participant that has a 50 percent or more interest in an entity to apply for and obtain prior approval from the Commission, our proposal would rely on a notice filing. If that participant files a notice attesting to the Commission that it has no control over the trading of that entity, and that firewalls are in place to prevent access to information, then it need not wait for the CFTC's review and approval. This notice filing process is similar to what the Commission uses in many other areas.

    This should create a more practical, efficient rule. It is important to note that the proposed change does not alter the standard of when aggregation is required. Moreover, the Commission retains its authority to call for additional information and modify or terminate an exemption for failure to comply with the standard.

    Today's proposed modification is part of our ongoing consideration of the substantial public input the Commission received on its 2013 position limits proposal. As we continue to consider that input and work on a final rule, I want to underscore that the Commission appreciates the importance and complexity of these issues, and we intend to take the time necessary to get it right. We hope to have more to say about issues related to position limits in the coming months.

    Appendix 3—Statement of Commissioner J. Christopher Giancarlo

    I support these proposed changes to the aggregation rules because I believe they make the position limits regime more workable. However, this is just the first of many steps needed to make the CFTC's approach to position limits less harmful to the risk management activities of American farmers, energy producers, manufacturers, risk-hedgers and trading institutions that do business around the globe. We must avoid at all costs adopting flawed government regulations that prevent our markets from operating effectively at a time of plunging commodity prices.1 That means not displacing the everyday commercial judgement of farmers and businesses with a small set of allowable hedging options pre-selected by a Washington Commission with limited experience in commercial risk management.

    1See Ira Iosebashvili and Tatyana Shumsky, Investors Flee Commodities, The Wall Street Journal, Jul. 20, 2015, available at http://www.wsj.com/articles/investors-flee-commodities-1437434367; See also Veronica Brown and Pratima Desai, Speculators Show Global Commodities Rout Still Has Legs, Reuters, Jul. 27, 2015, available at http://www.reuters.com/article/2015/07/27/us-markets-commodities-rout-idUSKCN0Q11TJ20150727.

    As I recently stated,2 the CFTC must change the proposed requirement that a market participant aggregate trading positions across subsidiaries over which it has no control or in which it may only be invested on a short-term basis. The proposal from 2013 essentially requires a market participant to apply for permission from the CFTC before it can disaggregate a position if the participant owns more than fifty percent of an entity, even if it has zero control or influence over that entity. This approach does not reflect the realities of modern commerce in which global trading firms may often have many unconnected subsidiaries that neither communicate nor share trading strategies or market position information.

    2See Keynote Address by Commissioner J. Christopher Giancarlo, 7th Annual Capital Link Global Commodities, Energy & Shipping Forum, Sept. 16, 2015, available at http://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlo-8.

    I commend the CFTC staff for taking into account public comments and putting forward a revised rule proposal that better recognizes the varied corporate structures of contemporary market participants. I am hopeful that today's proposal will serve as the basis for a workable solution to the flawed approach to aggregation in the previous proposal.

    In addition, today's proposal would relieve the Commission of the obligation to conduct a detailed, individualized inquiry into the relationships of the owned entities of a majority-owner applicant that seeks to disaggregate its trading positions across a global corporate enterprise. I agree with commenters that characterized the 2013 process as unworkable and a burden on already-limited Commission resources.

    Furthermore, this proposed reform appears considerably more attentive to liquidity concerns than the 2013 proposal. By permitting majority owners that lack trading control to file a disaggregation notice with immediate effect rather than navigating a case-by-case Commission approval process, the 2015 framework significantly reduces barriers to disaggregation, thereby possibly increasing market participation.

    One area discussed at length in the current proposal is the issue of control of a corporate entity. Specifically, I invite public comment on whether there should be a removal of the presumption of control of an entity for all minority ownership interests. This would allow the exclusion now available to minority owners with a stake below ten percent, while retaining the presumption for interests exceeding fifty percent.

    In addition, I am concerned that, by requiring an owner to aggregate an owned entity's positions when its affiliates have risk-management systems that permit the sharing of trades or trading strategy, the proposed rule may stymie critical risk-mitigation efforts. Owners and their affiliates may need to share information regarding trades or trading strategy to verify compliance with applicable credit limits as well as restrictions and collateral requirements for inter-affiliate transactions, among other risk-management and compliance-related objectives.3

    3 Letter from Walt Lukken, President and Chief Executive Officer, Futures Industry Association, to Melissa Jurgens, Secretary, CFTC (Feb. 6, 2014), at 8-9, available at https://secure.fia.org/downloads/Aggregation_Comment_Letter_020614.pdf.

    Accordingly, I invite public comment on whether the Commission should consider modifying the current proposal to clarify that owners and their affiliates may share such trading information as is necessary for effective risk safeguards without forfeiting eligibility for disaggregation. If the Commission remains concerned that this accommodation will facilitate coordinated trading, it might require affiliates sharing trading data to restrict dissemination of the information to those responsible for compliance and risk-management efforts, maintaining internal firewalls to conceal the information from employees who develop or execute trading strategies.

    I also welcome public comment on whether the Commission should consider modifying the proposed rule to clarify that an owner filing a notice of trading independence in order to claim an exemption from aggregation under this rule need only make subsequent filings in the event of a material change in the owner's degree of control over its subsidiary's positions. The text of the proposed rule does not appear to require periodic filings following the initial notice of trading independence, but the Commission's calculation of the proposal's costs seems to assume that such filings will be made on an annual basis.

    I encourage the public to comment on my above concerns and propose potential solutions if appropriate.

    [FR Doc. 2015-24596 Filed 9-28-15; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM15-23-000] Collection of Connected Entity Data From Regional Transmission Organizations and Independent System Operators AGENCY:

    Federal Energy Regulatory Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) proposes to amend its regulations to require each regional transmission organization (RTO) and independent system operator (ISO) to electronically deliver to the Commission, on an ongoing basis, data required from its market participants that would; first identify the market participants by means of a common alpha-numeric identifier; and secondly list their “Connected Entities,” which includes entities that have certain ownership, employment, debt, or contractual relationships to the market participants, as specified in this NOPR; and finally describe in brief the nature of the relationship of each Connected Entity. Such information will assist screening and investigative efforts to detect market manipulation, an enforcement priority of the Commission. The initiative would also assist market monitors for the RTOs and ISOs in their individual and joint investigations of potential cross-market manipulation. Unless the RTOs and ISOs request continuation of existing affiliate disclosure requirements based on a particularized need, the Commission expects that this new disclosure obligation will supplant all existing affiliate disclosures requirements contained in the RTOs and ISOs tariffs. The proposed definitional uniformity of the term “Connected Entity” across all of the RTOs and ISOs may help ease compliance burdens on market participants that are active in more than one RTO or ISO, and that are now required to submit affiliate information that may be unique to each of the organized markets in which they participate.

    DATES:

    Comments on the proposed rule are due November 30, 2015.

    ADDRESSES:

    Comments, identified by docket number, may be filed in the following ways:

    • Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

    • Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document.

    FOR FURTHER INFORMATION CONTACT: David Pierce (Technical Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6454, [email protected] Kathryn Kuhlen (Legal Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6855, [email protected]
    SUPPLEMENTARY INFORMATION:

    1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) proposes, pursuant to sections 222, 301(b), 307(a) and 309 of the Federal Power Act (FPA),1 to amend its regulations to require each regional transmission organization (RTO) and independent system operator (ISO) to electronically deliver to the Commission, on an ongoing basis, data required from its market participants that would: (i) Identify the market participants by means of a common alpha-numeric identifier; (ii) list their “Connected Entities,” which includes entities that have certain ownership, employment, debt, or contractual relationships to the market participants, as specified in this NOPR; and (iii) describe in brief the nature of the relationship of each Connected Entity. The uniform identification of market participants, together with the listing of entities that comprise a network of common interests, would enhance the Commission's efforts to detect and deter market manipulation, a central objective of the Commission as identified in its FY 2014-2018 Strategic Plan.2 Unless the RTOs and ISOs request continuation of existing affiliate disclosure requirements based on a particularized need, the Commission expects that this new disclosure obligation will supplant all existing affiliate disclosures requirements contained in the RTOs and ISOs tariffs.

    1 16 U.S.C. 824v, 825(b), 825f(a), 825(h).

    2Federal Energy Regulatory Commission Strategic Plan FY 2014-2018, Objective 1.2 (Mar. 2014), available at http://www.ferc.gov/about/strat-docs/FY-2014-FY-2018-strat-plan.pdf.

    2. In the Strategic Plan, the Commission cited monitoring and surveillance activities as a key function in meeting the objective of detecting and deterring market manipulation.3 In recent years the Commission has greatly enhanced its capabilities in this regard, having developed automated screens of market activities and set up analytical procedures to detect potential market manipulation. Understanding the ownership, employment, debt, and contractual relationships of market participants would provide context for such data, and help determine whether there appears to be a legitimate business rationale for seemingly anomalous trading patterns, or whether there may be market manipulation, fraud, or abuse. This in turn will further the Commission's goal of detecting and deterring possible market manipulation. As we explain below, the existing affiliate disclosure requirements do not appropriately enable the Commission to identify and monitor these business relationships.

    3Id.

    I. Background

    3. Beginning in the late 1960s, the electric industry gradually transformed itself from one populated by mostly self-sufficient vertically integrated utilities compensated by cost-based rates, to competitive markets characterized by open transmission access, partial disaggregation of generation and transmission, and market-based rates.4 Competitive markets brought with them the potential for market manipulation, and Congress, acting in response to the abuses characterizing the Western Energy Crisis of 2000-2001, passed the Energy Policy Act of 2005 (EPAct 2005).5 This legislation, among other things, gave the Commission authority to address market manipulation, including the ability to assess substantial civil fines and seek criminal penalties.6

    4Enhancement of Electricity Market Surveillance and Analysis through Ongoing Electronic Delivery of Data from Regional Transmission Organizations and Independent System Operators, Order No. 760, 77 FR 26674 (May 7, 2012), FERC Stats. & Regs. ¶ 31,330, at P 2 (2012).

    5 Pub. L. 109-58, 119 Stat. 594.

    6See 16 U.S.C. 825o (criminal penalties); 16 U.S.C. 825o-1 (civil fines).

    4. In 2012, utilizing the authority granted by Congress under the FPA, the Commission expanded the tools available to staff to investigate market activity for potential manipulation. In Order No. 771,7 the Commission required e-Tag Authors and Balancing Authorities to ensure Commission access to their e-Tags. And in Order No. 760,8 the Commission required the RTOs and ISOs to electronically deliver to the Commission, on a regular basis, their existing data relating to physical and virtual offers and bids, market awards, resource outputs, marginal cost estimates, shift factors, financial transmission rights, internal bilateral contracts, uplift, and interchange pricing. These orders have provided needed tools for staff to monitor market activities.

    7Availability of E-Tag Information to Commission Staff, Order No. 771, 77 FR 76367 (Dec. 28, 2012), FERC Stats. & Regs. ¶ 31,339 (2012), order on rehearing and clarification, 142 FERC ¶ 61,181 (2013).

    8 Order No. 760, FERC Stats. & Regs. ¶ 31,330 at PP 8-19.

    5. The Commission has also been granted access by the Commodity Futures Trading Commission (CFTC) to its Large Trader Report, and the information contained therein has significantly added to the Commission's ability to carry out its enforcement responsibilities. In addition, on January 2, 2014, the Commission and the CFTC signed a new Memorandum of Understanding (MOU) to share information in connection with market surveillance and investigations into potential market manipulation, fraud, or abuse.9 This MOU establishes procedures for sharing information of mutual interest related to market surveillance and investigative matters, while maintaining confidentiality and data protection.10

    9Memorandum of Understanding Between the Commodity Futures Trading Commission and the Federal Energy Regulatory Commission Regarding Information Sharing and Treatment of Proprietary Trading and Other Information (Jan. 2, 2014), available at http://www.ferc.gov/legal/mou/mou-ferc-cftc-info-sharing.pdf.

    10Id.

    6. Nonetheless, despite increased access to trading data, the Commission cannot fully utilize this information in order to detect and deter market manipulation because of uncertainty regarding the identity of a given market participant, which may trade under different identifiers in different markets and venues. The Commission also lacks a clear window into the relationships between market participants and other entities, which can be complex. Without an understanding of which companies share ownership or debt interests, or who may function in key employment or other contractual roles (such as asset management), it can be difficult to ascertain which individuals or companies may benefit from a given transaction or, indeed, who may be jointly participating in a common course of conduct.

    7. Currently, each RTO and ISO requires market participants to provide it with a list of the participant's affiliates.11 However, requirements vary as to the nature of a reportable affiliate relationship and the frequency for updating the information. In addition, for purposes of ferreting out potential market manipulation, it is important to explore relationships that extend beyond corporate affiliation. Such additional relationships may involve contractual relationships such as tolling and asset management agreements, or debt structures that are convertible to ownership interests.

    11See, e.g., the following sections from the tariffs of the RTOs/ISOs: California Independent System Operator Corporation (CAISO): Section 39.9 and 4.10.1.5.1 (for congestion revenue rights); ISO New England Inc. (ISO-NE): Section I.3.5; Midcontinent Independent System Operator, Inc. (MISO): Attachment L.1.A.5 (credit application evaluation disclosure requirement), Attachment L.1.B.5 (ongoing credit evaluation disclosure requirement); New York Independent System Operator, Inc. (NYISO): Section 2.15; PJM: Section 216.2.1 (Interconnection customer affiliate disclosure requirement), Attachment Q 1.A.5 (credit application evaluation disclosure requirement), Attachment Q 1.B.5 (ongoing credit evaluation disclosure requirement).

    8. The existing affiliate disclosure rules do not provide the tools necessary for the Commission to sufficiently monitor these increasingly complex business relationships that impact our jurisdictional markets. Thus, the Commission believes it is desirable to use a new term, one that is free of any associations that have developed around the term “affiliate,” and one that is uniform across all of the RTOs and ISOs, to describe a relationship of interest in probing for potential market manipulation. We propose the term “Connected Entity,” and further propose to make the definition of that term uniform across the organized electric markets.

    II. Discussion Need for Connected Entity Information

    9. The Commission employs a variety of screens to identify anomalous trading. When it detects such anomalies, it attempts to determine whether the behavior is legitimate market activity. It does this in large part by analyzing the circumstances surrounding the activity, including trading patterns and trader explanations. Some patterns that have emerged to date are: limited risk or riskless combinations of trades to enhance the value of a position or portfolio, such as wash trades; repetitive, uneconomic physical trading or flows to benefit a position; trading to affect the formation of an index price; withholding physical generation to benefit a financial and/or physical position; and using virtual bids to benefit a financial and/or physical position.

    10. Rather than performing a trade or other action that results in a direct benefit to itself, a market participant might instead take actions that benefit another entity that bears a financial or legal relationship to it. Entities under common control, whether by ownership, beneficial interest, or contractual relationships, might also collude to set prices by taking positions that together result in a market manipulation. An understanding of these relationships is crucial in exploring the design and possible purposes behind a trading pattern, from which inferences of intent can be drawn and investigated. The existing affiliate disclosure requirements imposed through the RTOs and ISOs tariffs do not capture all of these business relationships.

    11. As evidence of intent is critical in establishing whether there has been market manipulation,12 the Commission can better monitor and protect the markets from wrongdoing if these relationships are fully known. Moreover, more complete information about these relationships will reduce the number of informal inquiries in response to false positive surveillance screen trips that may result from an incomplete picture of market participants' incentive structures.

    12 In Order No. 670, the Commission promulgated regulations 18 CFR 1c.1 and 1c.2, which prohibit manipulation in the natural gas and electric energy markets. In that order, the Commission stated that “any violation of the Final Rule requires a showing of scienter.” Prohibition of Energy Market Manipulation, Order No. 670, FERC Stats. & Regs. ¶ 31,202, at P 52 (2006).

    Sources and Completeness of Connected Entity Information

    12. Although there are a few third-party sources of public information that contain data about the affiliate relationships of entities trading in the electric energy markets, their information and manner of collection is insufficient for the Commission's market monitoring responsibilities. These sources include vendors such as Dun & Bradstreet, SNL Financial, and Ventyx. The primary service provided by these companies is tracking trading information, not compiling affiliate data, and their affiliate information is generally derived from public sources that do not cover all market participants. Further, whether such information is current or complete cannot be ascertained from the listings. Nor do such listings include entities that are connected by contractual relationships, rather than ownership. For all these reasons, an up-to-date, reliable, and complete listing of Connected Entities cannot be obtained from these third-party sources.

    13. Obtaining Connected Entity data from RTOs and ISOs leaves unaddressed similar data from entities operating outside the organized electric markets. However, the Commission has estimated, using Electric Quarterly Report (EQR) data and existing affiliation information gleaned from market-based rate filings and other available sources, that approximately 90 percent of the reported wholesale sales of electricity subject to the Commission's jurisdiction are made either by market participants in one or more of the six RTOs and ISOs, or by companies related by ownership to such a market participant.13 Therefore, access to Connected Entity data for all the market participants in each of the RTOs and ISOs would provide most of such data for all the transactions of interest in the Commission's electric manipulation screening. We invite comment on the desirability and feasibility of expanding our proposal to require the submission of Connected Entity information from non-RTO/ISO market participants, and on any difficulties commentators might perceive to exist in doing so.

    13 These RTOs and ISOs are: ISO-NE., NYISO, PJM, MISO, Southwest Power Pool, Inc., and CAISO. The Electric Reliability Council of Texas is non-jurisdictional and not included in the calculation. Staff determined this percentage by examining the Electric Quarterly Reports, which must be filed by all public utilities and by non-public utilities that trade above a de minimus amount. See 18 CFR 35.10(b) (2015).

    14. The Commission recognizes that this proposal would place additional burden on market participants to implement the new reporting requirement and to submit the Connected Entity information to the RTOs and ISOs as proposed. However, we believe that the benefits of this proposal will outweigh the additional burden imposed on market participants. Moreover, as noted above, each of the six RTOs and ISOs already requires its market participants to submit data identifying certain affiliate relationships. It is possible that some, if not all, market participants will be able to use its existing processes for reporting affiliate information to the RTOs and ISOs to lessen the burden of this proposed reporting. For market participants that are active in more than one market, it is also possible that the burden of making a uniform Connected Entity filing in all those markets, once the initial implementation period is over, would be no greater than the current burden of making multiple affiliate filings, each of which is unique to its particular RTO or ISO. For participants in only one market, we recognize that there will likely be an increase in the administrative time needed for compliance. As for the RTOs and ISOs themselves, we believe they would incur the initial implementation costs required to make compliance filings to amend their tariffs to conform the filed information to the new Commission standards, and revising their collection processes to be consistent with those standards.

    Authority To Acquire Connected Entity Information

    15. The Commission has the authority to require the type of record keeping and submittals contemplated in this NOPR. As discussed below, the Commission's anti-manipulation authority under section 222 of the FPA, taken together with its investigative authority under section 307(a) of the FPA, its administrative powers under section 309 of the FPA, and its inspection and examination authority under section 301(b) of the FPA, provides ample basis for accessing Connected Entity data.

    16. Section 222 of the FPA grants the Commission authority over the prohibition of market manipulation in connection with the purchase or sale of electric energy and transmission subject to the Commission's jurisdiction.14 It also prohibits manipulation by “any entity,” including entities exempted from the Commission's rate-related jurisdiction. Section 301(b) of the FPA provides that the Commission shall at all times have access to, and the right to inspect and examine all accounts and records of public utilities,15 which includes RTOs and ISOs. Section 309 of the FPA grants the Commission the authority to “perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules and regulations as it may find necessary and appropriate to carry out the provisions of [the FPA].” 16 And section 307(a) of the FPA provides that the Commission has authority to investigate any facts, conditions, practices, or matters it may deem necessary or proper to determine whether any person, electric utility, transmitting utility, or other entity may have violated or might violate the FPA or the Commission's regulations.17 It also has investigatory authority to aid in the enforcement of the FPA or the Commission's regulations, or to obtain information about wholesale electric energy sales or the transmission of electric energy in interstate commerce.18 This investigatory authority is not limited to a particular case or controversy, but allows an agency to “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” 19

    14 16 U.S.C. 824v.

    15 16 U.S.C. 825(b).

    16 16 U.S.C. 825(h).

    17 16 U.S.C. 825f(a).

    18Id.

    19United States v. Morton Salt, 338 U.S. 632, 642 (1950).

    17. The Commission has already required the RTOs and ISOs to provide this type of information to the Commission. Most notably, in Order No. 760, the Commission required the RTOs and ISOs to electronically deliver to it, on an ongoing basis, data relating to physical and virtual offers and bids, market awards, resource outputs, marginal cost estimates, shift factors, financial transmission rights, internal bilateral contracts, uplift, and interchange pricing.20 The information sought under this NOPR would typically be provided with less frequency than that which the RTOs and ISOs submit under Order No. 760. And the submittal of Connected Entity data would be transmitted through the same channels as the RTOs and ISOs already employ for Order No. 760 data.

    20See Order No. 760, FERC Stats. & Regs. ¶ 31,330 at Summary.

    Additional Benefits and Confidentiality of Connected Entity Data

    18. Establishing common identifiers and a uniform definition of Connected Entity, as is proposed in this NOPR, would have the additional benefit of assisting the RTO/ISO market monitors in their responsibilities to oversee the markets. Market monitors could assess cross-market transactions and compare their data with that produced by their neighboring market monitors, assured that the data was accurate and consistent.21

    21See Southwest Power Pool, Inc., 137 FERC ¶ 61,046 at P 19 (2011) (“[T]he Commission clarifies that Market Monitoring Units, RTOs, and ISOs may communicate referral information with each other across regions . . . The Commission strongly encourages this type of communication, as long as reasonable precautions are taken to ensure that all referral information remains non-public.”); see also New York Independent System Operator, 136 FERC ¶ 61,116 (2011).

    19. Understanding the relationship between connected entities can be an important aspect of the Commission's ex post analysis, which is a critical element of the market-based rate program. In Lockyer, the Ninth Circuit cited with approval the Commission's dual requirement of an ex ante finding of the absence of market power and sufficient post-approval reporting requirements, finding that the Commission does not rely on ex ante market forces alone in approving market-based rate tariffs. In particular, the court found that the ongoing oversight and timely reconsideration of market-based rate authorization under section 205 of the FPA enables the Commission to meet its statutory duty to ensure that all rates are just and reasonable.22

    22Cal. ex rel. Lockyer v. FERC, 383 F.3d 1006 (9th Cir. 2004). See also Cal. v. FERC, 784 F.3d 1267 (9th Cir. 2015).

    20. The Commission anticipates that submitting Connected Entity data would not place market participants under increased risk in relation to the disclosure of confidential or proprietary information. Some of the information to be gathered by the RTOs and ISOs from participants is already publicly available. This would include, in the case of publicly-traded companies, data found in their Securities and Exchange Commission (SEC) filings; in the case of contractual control over a jurisdictional asset, the data would generally be available through EQR reporting requirements. To the extent, however, that Connected Entity information is not already public, we intend that the collection of Connected Entity information be treated as non-public, to the same extent as is Order No. 760 data and any other investigatory material submitted under Part 1b of the Commission's regulations.23

    23 18 CFR part. 1b (2015).

    21. Connected Entity information that is commercially sensitive, such as all or part of the contractual arrangements among entities, may satisfy the requirements of exemption 4 of the Freedom of Information Act (FOIA), which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 24 The non-public information to be gathered under the proposed rule may also fall within the ambit of FOIA exemption 7, which protects certain “records and information compiled for law enforcement purposes.” 25

    24 5 U.S.C. 552(b)(4); accord 18 CFR 388.107(d) (2015).

    25 5 U.S.C. 552(b)(7); accord 18 CFR 388.107(g) (2015).

    Proposed Definition of a Connected Entity

    22. Over the years, the term “affiliate” has been used frequently in tariffs and regulations, but not always with exactly the same definition. The term has also usually centered on relationships involving control by virtue of an ownership interest.26 However, in carrying out the Commission's responsibility to oversee the markets for possible market manipulation, other relations may be equally worthy of examination. We thus propose an entirely new term, to be used in connection with investigatory data gathered for the purposes identified in this NOPR, that of “Connected Entity.” We propose to revise 18 CFR 35.28(g)(4) to define Connected Entity as follows:

    26See, e.g., 18 CFR 35.36(a)(9) (2015).

    23. A Connected Entity, which includes natural persons, is one which stands in one or more of the following relationships to a market participant:

    a. An entity that directly or indirectly owns, controls, or holds with power to vote, 10 percent or more of the ownership instruments of the market participant, including but not limited to voting and non-voting stock and general and limited partnership shares; or an entity 10 percent or more of whose ownership instruments are owned, controlled, or held with power to vote, directly or indirectly, by a market participant; or an entity engaged in Commission-jurisdictional markets that is under common control with the market participant;

    b. The chief executive officer, chief financial officer, chief compliance officer, and the traders of a market participant (or employees who function in those roles, regardless of their titles);

    c. An entity that is the holder or issuer of a debt interest or structured transaction that gives it the right to share in the market participant's profitability, above a de minimis amount, or that is convertible to an ownership interest that, in connection with other ownership interests, gives the entity, directly or indirectly, 10 percent or more of the ownership instruments of the market participant; or an entity 10 percent of more of whose ownership instruments could, with the conversion of debt or structured products and in combination with other ownership interests, be owned or controlled, directly or indirectly, by a market participant; or

    d. Entities that have entered into an agreement with the market participant that relates to the management of resources that participate in Commission-jurisdictional markets, or otherwise relates to operational or financial control of such resources, such as a tolling agreement,27 an energy management agreement, an asset management agreement,28 a fuel management agreement, an operating management agreement, an energy marketing agreement, or the like.29

    27 Tolling agreements are common in the energy industry, and in essence function as leasing contracts or options on a generating plant wherein the “toller” has the right to the plant output at his or her discretion.

    28 Asset management agreements, in general, are contractual relationships where a party agrees to manage fuel supply and delivery arrangements, including transportation, for another party, and to consume the electricity produced or share in some fashion in the revenues from the sale of that electricity.

    29 As the Commission observed in Order No. 697, energy/asset managers provide a variety of services, including, but not limited to, operating generation plants (sometimes under tolling agreements), acting as billing agents, bundling transmission and power for customers, and scheduling transactions. Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 697, FERC Stats. & Regs. ¶ 31,252, clarified, 121 FERC ¶ 61,260 (2007), order on reh'g, Order No. 697-A, FERC Stats. & Regs. ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on reh'g, Order No. 697-B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh'g, Order No. 697-C, FERC Stats. & Regs. ¶ 31,291 (2009), order on reh'g, Order No. 697-D, FERC Stats. & Regs. ¶ 31,305 (2010), aff'd sub nom. Mont. Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), cert. denied, 133 S. Ct. 26 (2012). Regardless of the label attached to a particular contract, all such services would fall within the ambit of the reporting requirement proposed in this NOPR.

    We invite comment on the appropriate threshold for a de minimis share of a company's profits.

    Legal Entity Identifiers

    24. In the past, the Commission has considered methods to ensure that there is no confusion as to the identification of entities subject to its jurisdiction. For example, it formerly required usage of the DUNS identification system in EQR filing requirements. However, the Commission found that system to be an imprecise tool for the purpose, and removed the requirement in 2012.30 At that same time, it considered various alternatives to the use of DUNS numbers, but found none that would be adequate.31

    30Electricity Market Transparency Provisions of Section 220 of the Federal Power Act, Order No. 768, FERC Stats. & Regs. ¶ 31,336, at P 171 (2012); orders on reh'g and clarification, Order No. 768-A, 143 FERC ¶ 61,054 (2013) and order on reh'g, Order No. 768-B, 150 FERC ¶ 61,075 (2015).

    31 Order No. 768, FERC Stats. & Regs. ¶ 31,336 at P 171.

    25. However, a relatively new system is rapidly becoming the globally accepted method to ensure accurate identification of legal entities. That system involves the establishment of Legal Entity Identifiers (LEIs), which are unique IDs assigned to single entities. In this country, adoption of the LEI system has been accelerated in response to the Dodd-Frank Act, which mandated initiatives to improve the quality of financial data available to regulators and others.32 The Office of Financial Research (OFR), which was created under the Dodd-Frank Act, is leading the effort to establish uniform LEIs and several federal agencies involved in the regulation of financial transactions have, or are in the process of, mandating the use of LEIs for certain purposes. Among these are the CFTC and the SEC, which now require their use for certain swaps-related activities.33

    32 Dodd-Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C. 5301, at 5343 (a).

    33See, e.g., 17 CFR 45.4, 45.6 (2015) (CFTC); Regulation SBSR—Reporting and Dissemination of Security-Based Swap Information, 80 FR 14564, 17 CFR part 242 (2015) (SEC) (published in the Federal Register as a final rule on March 19, 2015, with an effective date of May 18, 2015).

    26. LEIs are issued by Local Operating Units (LOUs) of the Global LEI System, and as of December 31, 2014, over 330,000 entities from 189 countries had obtained LEIs from 20 operational issuers endorsed by the LEI Regulatory Oversight Committee (ROC). The Global LEI Foundation was established in June of 2014 as a not-for-profit organization overseen by the ROC to act as its operational arm, and which maintains a centralized database of LEIs and corresponding reference data.

    27. Obtaining an LEI is relatively inexpensive (approximately $250, with annual upkeep fees of approximately $150). Application is made by a legal entity, such as a corporation or partnership, and the LOU verifies authenticity of the entity by checking official governmental records. It then assigns to it an LEI, a 20-digit alpha-numeric code unique to that entity. A given alpha-numeric string is thus a permanent identifier, and is also exclusive; that is, no other entity is assigned that LEI, and the entity itself may not obtain another LEI.34

    34See the LEI ROC Web site for further information on the LEI identifier system. The Legal Entity Identifier Regulatory Oversight Committee—LEI ROC, http://www.leiroc.org.

    28. We believe that the establishment of a reliable, standard identification system will greatly benefit staff's ability to conduct investigations of trading patterns in the energy markets. It appears to us that the use of LEIs is the best method to achieve this goal. We therefore propose that the RTOs and ISOs require their market participants to obtain LEIs, and to report in their Connected Entity Data filing their own LEI and the LEI of each of their Connected Entities, if the Connected Entity has obtained one. However, the LEI system is still relatively new, and we invite comments on the feasibility of its use, on whether any other system besides LEIs would be a preferable method of achieving uniform identification, and on whether waivers might be appropriate in given situations.

    III. Requirements for Collection of Connected Entity Data

    29. As part of this rulemaking, we propose to require the submission from the RTOs and ISOs of Connected Entity information pertaining to each of its market participants.35 To meet this obligation, we propose that each RTO and ISO make a compliance filing setting forth in its tariff the requirement that its market participants submit to it a list of their Connected Entities, in the format approved by the Commission. This list would include all of a market participant's Connected Entities, as defined above. The Connected Entities need not be engaged in activities in the same markets as the market participant for their inclusion to be required. The RTOs and ISOs would in turn transmit this information to the Commission in its native format.

    35 For this purpose, the term “market participant” includes all entities that participate in any of the various markets of the RTO and ISO in question, whether as a seller or a buyer.

    30. As a condition of participating in any of the RTO/ISO markets, the market participants would have to have on file with that RTO or ISO their Connected Entity data, which must be updated within 15 days of a change in status of the data. In addition, it would be a condition of participation for each market participant to certify, on a yearly basis, that its Connected Entities filed data is comprehensive and accurate.

    31. We propose that the RTOs and ISOs include in their tariffs the authority (although not the obligation) to audit market participants to determine if their submitted Connected Entity data is accurate, complete, and up to date. Commission staff may also from time to time conduct audits for this purpose.

    32. As discussed above, we also propose that each market participant be required to acquire an LEI, and include its own LEI and the LEIs of each of its Connected Entities (if known) on its submitted Connected Entity list.

    33. We further propose that the information requested be delivered to the RTOs and ISOs in a form and manner acceptable to the Commission. By way of illustration, we envision that the following formats for submission of Connected Entity data would be mandated:

    • A table that contains rows with columns identifying the market participant by LEI, legal name, RTO or ISO, and RTO/ISO assigned identifier, if any. If there is more than one RTO/ISO identifier, there would be a separate row for each, with the preceding columns remaining the same. If the market participant participates in more than one RTO or ISO, there would be additional rows setting forth all the categories mentioned for each RTO/ISO. Thus, a row would appear as follows (columns separated by a star):

    LEI of market participant (MP)* Legal Name of MP * RTO/ISO * RTO/ISO Identifier of MP

    • A table or tables that disclose the market participant's relationships with each of its Connected Entities. Each row would address a single Connected Entity and the type of relationship with the market participant (ownership, employee, debt, contract). The LEI and the legal name of the market participant would be placed in the first two columns, respectively, and the LEI and the legal name of the Connected Entity in the third and fourth columns, respectively, and the type of relationship in the fifth column. For ownership, the date the direct, indirect or beneficial ownership reached 10 percent would be stated, as well as the total ownership as of the date of the report. For employees, which might be set forth in a separate table, the full legal name of the employee would be stated and the person's title and date of hire. For debt, the date the debt was incurred would be stated, and the debt holder and indebted party identified. For contracts, the start and end date of the contract would be stated as well as a brief descriptor of the contract type (tolling, asset management, etc.). If there are multiple relationships with the same Connected Entity, separate rows would be used for each. Thus, a row would appear as follows:

    LEI of MP * Legal Name of MP * LEI of Connected Entity * Legal Name of Connected Entity * relationship type (ownership, employee, debt, contract).

    This table would also provide, whether by footnote or other reference means, a more detailed description of the particular relationship given. For a contract, for instance, the major provisions of the contract would be listed, such as effective date, term, renewal provisions, and matters pertinent to the type of contract, such as heat rate curve for a tolling agreement, the MW or MWh curves for a power purchase agreement, together with identification of the generator or plant involved, the nature of any output sharing, and the like.

    34. The repetition of cells necessitated by the foregoing format, while it will make the document physically longer than might otherwise be the case, is needed so that the appropriate pairing of entities can be presented in a machine-readable manner. An appendix is included with this NOPR to provide some examples of how these submittals might be structured. We invite comments on formatting suggestions, as well as on the substantive matters set forth in this Notice of Proposed Rulemaking.

    35. Finally, we propose that in their compliance filings, RTOs and ISOs list all affiliate information disclosure requirements. As we anticipate that the Connected Entity submissions will provide the RTOs and ISOs with as much and more information as they currently receive from the existing affiliate disclosures, we propose eliminating all existing affiliate disclosure requirements. However, if there is some particularized need that would not be met by the Connected Entity submissions, the RTOs and ISOs may request in their compliance filings to retain any such disclosure requirements, in which case they would need to include justifications for such retention. Insofar as possible, duplicative information submission should be avoided. We also solicit comments as to whether it would be feasible and more efficient for the RTOs and ISOs to utilize the Connected Entities information that would be submitted through this proposal for the same purposes that they currently use the information provided through their existing affiliate disclosure requirements. In particular, we solicit comments regarding whether replacing existing affiliate disclosure requirements in the RTO and ISO tariffs with the Connected Entity submission obligations will adversely affect implementation of other provisions of the RTO and ISO tariffs. If so, then how? Such comments may also address whether any changes should be made to the data table formats to allow RTOs and ISOs to utilize Connected Entities information for other purposes.

    IV. Information Collection Statement

    36. The collections of information contained in this proposed rule are being submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d). We solicit comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. Respondents subject to the filing requirements of this proposed rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

    37. The proposed rule does not require entities other than RTOs/ISOs to report information to the Commission. The RTOs/ISOs will gather the required data from the market participants directly. However, we include burden estimates not only for RTOs/ISOs but also for market participants and Connected Entities.36

    36 The estimated hourly cost (salary plus benefits) provided in this section are based on the figures for May 2014 posted by the Bureau of Labor Statistics for the Utilities sector (available at http://www.bls.gov/oes/current/naics2_22.htm#13-0000). The hourly estimates for salary plus benefits are: Legal (code 23-0000), $129.87, computer and mathematical (code 15-0000), $58.25, information systems manager (code 11-3021), $94.55, IT security analyst (code 15-1122), $63.55, auditing and accounting (code 13-2011), $51.11, information and record clerk (Referred to as administrative work in the body) (code 43-4199), $37.50.

    38. We recognize that there will be an initial implementation burden associated with providing the Commission the requested data. This includes submitting a compliance filing to the Commission. We estimate 30 hours for each RTO/ISO to prepare the filing at a cost of $3,896 per filer.

    39. Each RTO and ISO already submits electronic market data to the Commission in accordance with Order No. 760. We propose that these same channels be used to handle the relatively small increase in data submission proposed under this rulemaking. RTO/ISO staff will need to add additional tables to their databases and make provisions for those tables to be included in regular transmissions. We estimate eight hours for each RTO/ISO to make these additions at an average cost of $624 per filer.37

    37 The following weightings were applied to estimate the average hourly cost (salary plus benefits) of $78.00; legal staff, 1/6, information systems manager, 1/6, computer and mathematical, 1/3, information security analyst, 1/3.

    40. Each RTO/ISO will also need to modify its current process for accepting information from market participants. We estimate 320 person-hours (costs weighted as previously described) for each RTO/ISO to make these changes at an average cost of $24,960 each.

    41. Incremental, ongoing maintenance costs for RTOs/ISOs are assumed to be minimal. We estimate maintenance to require 40 person-hours per year at an average annual cost per RTO/ISO of $3,120.

    42. This NOPR also proposes that RTOs/ISOs have the option to audit market participants to verify the accuracy and completeness of their submissions. If each of the six RTOs/ISOs chooses to audit an average of 10 market participants per year, we estimate this to require 40 hours per audit for a total annual auditing burden per RTO/ISO of 400 hours and annual cost of $20,444.

    43. Market participants, through their affiliate disclosures, already submit information about some of their Connected Entities to the RTOs/ISOs. This proposed rule enlarges the information to be collected and standardizes its format. It is estimated that for multi-market participants, the additional cost of initial compliance and the ongoing costs of maintaining that information will be somewhat offset by the savings of standardization across the several RTOs/ISOs. This NOPR proposes that market participants obtain and maintain an LEI, which we understand currently costs about $250 to obtain and $150 per year thereafter to maintain. While there will be an initial implementation burden associated with providing the RTOs/ISOs the requested data, these costs may vary widely from participant to participant largely in proportion to the size of the entity. Since the data related to the Connected Entity is information readily available to the market participant, the costs of gathering the data is expected to be largely administrative in nature with some minimal review by legal staff.38 We estimate that the average market participant will initially require four hours to register for an LEI and to collect, standardize, and provide the requested data to the RTO/ISO. We estimate the four hours of burden to cost $168 annually per market participant. (The cost of obtaining and maintaining the LEI is separate.)

    38 Using the average hourly cost of salary plus benefits provided above, the following weightings were applied to estimate the average hourly cost of $42.12: 95 percent information and record clerk, 5 percent legal.

    44. The proposed rule requires market participants to update and submit Connected Entity data after material changes and annually. We estimate that this ongoing burden will require less time than the initial collection but may occur more than once per year. We estimate three hours for each market participant to maintain their LEI registration and to collect, update, standardize, and transmit the requested data to the RTO/ISO. This burden would be largely administrative (95 percent) with some minimal review by legal staff (5 percent). We estimate the total burden to be $126 per participant.

    45. Market participants or Connected Entities may, from time to time, seek to confirm the accuracy of information concerning them that has been submitted to an RTO/ISO by other market participants. We conservatively estimate that one-fourth of market participants and Connected Entities will seek to confirm such information. Such confirmations would be largely administrative (95 percent) with some minimal review by legal staff (5 percent). We estimate that these confirmations will take approximately one hour for an average burden of $42 per market participant or Connected Entity seeking confirmation. Connected entities may also respond to requests for information from market participants. We estimate that each Connected Entity will spend one hour responding to these requests. Such responses would be largely administrative (95 percent) with some minimal review by legal staff (5 percent). We estimate that this activity will take approximately one hour for an average burden of $42 per Connected Entity.

    46. The following table summarizes the estimated burden and cost increases rounded to the nearest dollar in FERC-921, due to the proposed rule:

    EP29SE15.000

    47. The table above contains estimates of the number of market participants and the number of Connected Entities per market participant. We estimate that there are 6,000 market participants in the RTO/ISO markets, based on an analysis of data submitted by the RTOs/ISOs in accordance with Order No. 760. We estimate the number of Connected Entities to be an additional 9,000 companies, based on an analysis of data from Ventyx, a third party vendor which supplies ownership information about market participants.

    Information Collection Costs: We estimate the initial and ongoing cost of compliance with the NOPR's proposed requirements for each type of respondent as follows:

    RTO/ISO

    ○ Initial Burden: 358 hours, $29,480.

    ○ Ongoing Burden (starting year one): 560 hours, $32,924.

    Market Participant

    ○ Initial Burden: 4 hours, $168 plus $250 to acquire LEI.

    ○ Ongoing Burden (starting year two): 5 hours, $201, plus $150 to maintain LEI.

    Connected Entity

    ○ Ongoing Burden (starting year one): 1.25 hours, $53.

    Title: FERC-921,39 Ongoing Electronic Delivery of RTO/ISO Data.

    39 OATT compliance filings (like the one-time compliance filing here) are normally included under FERC-516 (OMB Control No. 1902-0096). However, the reporting requirements (including the compliance filing) contained in this proposed rule in Docket No. RM15-23-000 will be included in FERC-921.

    Action: Proposed revisions to existing information collection.

    OMB Control No.: 1902-0257.

    Respondents for this Rulemaking: RTOs and ISOs; market participants; Connected Entities.

    Frequency of Information: Initial implementation, compliance filing, and periodic updates (at least annually).

    48. Necessity of Information: As wholesale electricity markets continue to develop and evolve, new opportunities arise for anti-competitive or manipulative behavior. The Commission's market monitoring and surveillance capabilities and associated data requirements must keep pace with market developments and evolve along with the markets. The data discussed in this NOPR will allow the Commission to more effectively identify and address such behavior; to identify ineffective market rules; to better inform Commission policies and regulations; and thus to help ensure just and reasonable rates.

    49. Internal Review: The Commission has made a preliminary determination that the proposed revisions are necessary to keep pace with ever-changing possibilities for anti-competitive or manipulative behavior and to better inform Commission policies and regulations, and thus to ensure that rates are just and reasonable. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimate associated with the information requirements.

    50. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    51. Comments concerning the information collections proposed in this NOPR, and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 (Attention: Desk Officer for the Federal Energy Regulatory Commission). For security reasons, comments should be sent by email to OMB at the following email address: [email protected] Please reference FERC-921 and OMB Control No. 1902-0257 in your submission.

    V. Environmental Analysis

    52. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.40 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment.41 The actions proposed here fall within a categorical exclusion in the Commission's regulations, i.e., they involve information gathering, analysis, and dissemination.42 Therefore, environmental analysis is unnecessary and has not been performed.

    40Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897, FERC Stats. & Regs. ¶ 30,783 (1987).

    41 18 CFR 380.4 (2015).

    42See 18 CFR 380.4(a)(5).

    VI. Regulatory Flexibility Act

    53. The Regulatory Flexibility Act of 1980 (RFA) 43 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a rule and that minimize any significant economic impact on a substantial number of small entities. The Small Business Administration's (SBA) Office of Size Standards is responsible for the definition of a small business.44 These standards are provided on the SBA Web site.45 We reviewed the SBA's current size standards with respect to the three classes of entities covered in the proposed rule: RTOs/ISOs, market participants, and their Connected Entities.

    43 5 U.S.C. 601-12.

    44 13 CFR 121.101 (2015).

    45 U. S. Small Business Administration, Table of Small Business Size Standards Matched to North American Industry Classification System Codes (effective July 14, 2014), available at https://www.sba.gov/sites/default/files/Size_Standards_Table.pdf.

    54. The SBA classifies an entity as an electric utility if it is primarily engaged in the transmission, generation and/or distribution of electric energy for sale. Under this definition, RTOs/ISOs are considered electric utilities. The size criterion for a small electric utility is having 500 or fewer employees.46 Since every RTO and ISO has more than 500 employees, none are small entities.47

    46 13 CFR 121.101 (Sector 22, Utilities). Of note, the SBA recently revised its size standard for electric utilities (effective January 22, 2014) from a standard based on megawatt hours to one based on the number of employees, including affiliates.

    47 For five of the RTOs/ISOs, full-time employee estimates are based on human resources reports published on the Web site of each RTO/ISO. For the sixth RTO/ISO, the full-time employee estimate was obtained from the Chief Financial Officer.

    55. Market participants and their Connected Entities are likely to be in several market sectors and therefore subject to a variety of SBA size standards. We have identified a broad cross-section of the most likely SBA market sectors for participants and their Connected Entities. Industries in these subsectors include utilities, oil and gas production, mining, finance, and leasing. Among these sectors, there are various criteria and thresholds for determining whether a business is small, but the numbers of employees do not exceed 1,000, and the revenues do not exceed $38.5 million.48

    48 13 CFR 121.101.

    56. While many market participants and Connected Entities are some of the largest businesses in the United States (for example, large electric utilities and commercial banks), other market participants, such as individual power plants or small trading firms, would qualify as small under the SBA standards. It is difficult to estimate the size of all the entities affected by this proposed rule since many of smaller entities may be privately held with little public information available. However, if every market participant and Connected Entity identified above were assumed to be small under SBA standards, a substantial number of small businesses, as many as 15,000, would be impacted by this proposed rule.

    57. The economic impact of this proposed rule is directly related to the complexity of the organization, that is, the more entities to which a company is related, the more information that must be reported. The data from Ventyx indicates that complexity of this type correlates with the organization's size: larger entities will have more reportable relationships than smaller ones. Therefore, it is reasonable to believe that the cost of complying for small entities will be significantly less than the cost for large ones. The analysis of connectedness based on Ventyx data suggests that, on average, each market participant has 1.5 Connected Entities. However, this average likely overstates the number of connections for small entities since the analysis also found the median number of connections to be zero. This is also intuitively correct since concentrations of connections are typical only for large organizations.49 This analysis indicates that if an entity is truly small and its connections are related to its size, the number of Connected Entities that it would need to report is likely to be zero or one.

    49 In our analysis, the top 100 most connected market participants, almost all of which are not considered small, account for 20 percent of all relationships.

    58. Using these assumptions, we estimate that small businesses will be required to report few, if any, Connected Entity relationships. We estimate the initial burden for small companies to be $418 50 with an annual maintenance burden of $213.51 According to SBA guidance, the determination of significance of impact “should be seen as relative to the size of the business, the size of the competitor's business, and the impact the regulation has on larger competitors.” 52 Based on the above analysis, the reporting requirements proposed in this NOPR should not have a significant economic impact on a substantial number of small entities.

    50 This includes the initial LEI registration ($250) plus four hours of largely administrative work (95 percent) with some minimal review by legal staff (5 percent). ($168, at $42.12 per hour (salary plus benefits)).

    51 This includes annual LEI maintenance fee ($150) plus 1.5 hours of largely administrative work (95 percent) with some minimal review by legal staff (5 percent) ($63 at $42.12 per hour (salary plus benefits)).

    52 U.S. Small Business Administration, A Guide for Government Agencies How to Comply with the Regulatory Flexibility Act, at 18 (May 2012), available at https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf.

    VII. Comment Procedures

    59. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due November 30, 2015. Comments must refer to Docket No. RM15-23-000, include the commenter's name, the organization they represent, if applicable, and their address in their comments.

    60. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    61. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    62. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    VIII. Document Availability

    63. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington DC 20426.

    64. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    65. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202)502-8659. Email the Public Reference Room at [email protected]

    List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities, Reporting and recordkeeping requirements.

    By direction of the Commission. Commissioner LaFleur is concurring with a separate statement attached.

    Dated: September 17, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend 18 CFR part 35 to read as follows:

    PART 35—FILING OF RATE SCHEDULES AND TARIFFS 1. The authority citation for part 35 continues to read as follows: Authority:

    16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.

    2. Amend § 35.28 by revising paragraph (g)(4) to read as follows:
    § 35.28 Non-discriminatory open access transmission tariff.

    (g) * * *

    (4) Electronic delivery of data. Each Commission-approved regional transmission organization and independent system operator must electronically deliver to the Commission, on an ongoing basis and in a form and manner acceptable to the Commission, data related to the markets that the regional transmission organization or independent system operator administers. The submittal shall include information concerning each market participant's Connected Entities, together with the Legal Entity Identifiers of the market participants and their Connected Entities (if known), as submitted to the regional transmission organization or independent system operator by the market participants. Connected Entity is defined as follows:

    (i) An entity that directly or indirectly owns, controls, or holds with power to vote, 10 percent or more of the ownership instruments of the market participant, including but not limited to voting and non-voting stock and general and limited partnership shares; or an entity 10 percent or more of whose ownership instruments are owned, controlled, or held with power to vote, directly or indirectly, by a market participant; or an entity engaged in Commission-jurisdictional markets that is under common control with the market participant;

    (ii) The chief executive officer, chief financial officer, chief compliance officer, and the traders of a market participant (or employees who function in those roles, regardless of their titles);

    (iii) An entity that is the holder or issuer of a debt interest or structured transaction that gives it the right to share in the market participant's profitability, above a de minimus amount, or that is convertible to an ownership interest that, in connection with other ownership interests, gives the entity, directly or indirectly, 10 percent or more of the ownership instruments of the market participant; or an entity 10 percent of more of whose ownership instruments could, with the conversion of debt or structured products and in combination with other ownership interests, be owned or controlled, directly or indirectly, by a market participant; or

    (iv) Entities that have entered into an agreement with the market participant that relates to the management of resources that participate in Commission-jurisdictional markets, or otherwise relates to operational or financial control of such resources, such as a tolling agreement, an energy management agreement, an asset management agreement, a fuel management agreement, an operating management agreement, an energy marketing agreement, or the like.

    Appendix: Table Structures for Connected Entity Reporting

    The proposed rule requires RTOs and ISOs to submit tables identifying market participants by their Legal Entity Identifier (LEI), any RTO/ISO specific identifiers, and designated relationships between those market participants and their connected entities. The body of the proposed rule describes the relationships to be reported; this appendix suggests the structure of the tables that would be suitable for compliance.

    Companies Table

    The first table will indicate in which markets each entity and Connected Entity (or entities) participates as well as any and all market identifiers used by those entities in each market. The columns of the table will contain at least the standard company name, LEIs, and market identifiers for all Connected Entities in a given submission. Each row will associate an LEI with a company name, market, and market identifier. In some cases, entities will trade using different market identifiers in the same market, in which case the entity will add a row for every market and for each unique market identifier used by that company. In the case where multiple entities are using the same market identifier, this can be indicated in a similar manner. If a Connected Entity does not participate in jurisdictional markets, then no market identifier is available and is not required.

    Here is a sample table indicating the cases described above

    Standard
  • company name
  • LEI Market Market
  • identifier
  • ACME Energy 001 MISO 328502 ACME Energy 001 PJM 00034253 ACME Energy 001 PJM 00098345 ACME Renewables 002 PJM 00034253 Smith Company 123 NYISO 3362000012 Johnson Inc 999 None None

    Standard Company Name: The full name of the company which conforms in spelling and punctuation to all previous filings done by or on behalf of the same company.

    Legal Entity Identifier (LEI): The unique alpha-numeric identifier conforming to ISO 17442:2012 assigned to the legal entity.

    Market: Standard code for jurisdictional markets: PJM, NYISO, MISO, SPP, CAISO, ISONE, NON-RTO, None (i.e., does not participate in any electric markets).

    Market Identifier: Market identifiers are the alpha-numeric codes used by markets to associate a market participant with their bids, offers, and settlements.

    Connected Entities

    Connected Entities are those entities which are related to the reporting entity by (a) ownership or control, (b) key employees, (c) debt holders or issuers, or (d) contractual relationships. Since employee identification is significantly different from that of non-person entities, a subtable for employee information is suggested and described below.

    Employees

    The key employee positions to be included will be set forth in the RTOs/ISOs tariff, in conformity with the final adopted Commission regulation. The employee table will indicate the designated employees who are employed by each organization, their reportable roles, and the period of time they have held those positions. Persons employed by multiple entities will be indicated with multiple rows for different companies.

    Reportable roles that are jointly filled (e.g. Co-CEO) should be indicated as such (same company, same job but different employees). Employees who are no longer in reportable roles shall have at least one filing where the end date is not null. Employees changing reportable roles for a given company will appear twice in at least one filing (made in a timely manner): one row will indicate an end date for the employee/role and another row will contain a start date for a different reportable role. Individual employees filling multiple reportable roles will be indicated with multiple rows, one for each role.

    Standard
  • company name
  • LEI First name Middle Last Role Start date End date
    ACME Energy 001 Jane Doe Smith Trader 2010/01/01 ACME Energy 001 Jim William Jones CEO 2009/01/03 2015/01/01 ACME Energy 001 Jim William Jones Chairman 2015/01/01 ACME Renewables 002 Aaron Jerome Case CEO 2012/05/01 Smith Company 123 Xavier Horatio Martin CEO 2007/01/01 Johnson Inc 999 Jane Doe Smith CEO 2010/06/01

    The column definitions are self-explanatory.

    Relationships

    The relationships table is intended to provide a map (or graph) to the remaining three types of Connected Entities of the market participant, which include both its corporate family as well as outside entities connected by debt or contractual relationships. The relationships to be included are described in the body of the Notice of Proposed Rulemaking.

    Relationship

    Relationships should be classified based on the broad categories defined above. Relationships may fall into the following general categories (omitting employees, category (b), who are reported in a separate subtable):

    • owns (a) • controls (a) • has voting power (a) • is under common control with (a) • other ownership or control relationship with (a) • owns debt of (c) • owns convertible debt of (c) • has a structured transaction with (c) • other debt relationship with (c) • has a management agreement with (d) • has an operating agreement with (d) • has a marketing agreement with (d) • has a tolling agreement with (d) • has a fuel management agreement with (d) • other kind of agreement with (d).

    Contractual agreements between two parties regarding a third party should be entered as a multilateral relationship as described below.

    Relationship Description

    Each table will include a field for the filing entity to summarize any pertinent relationship details which may not be captured in the standardized fields.

    Simple Relationship Structures

    A relatively straightforward corporate family of three companies that all participate in MISO and PJM might be as follows:

    EP29SE15.001

    If C owns A and C controls B, the entity and relationships tables would be reported as follows:

    Standard company name LEI Market Market
  • identifier
  • A 001 MISO 0001 B 002 MISO 0002 C 003 MISO 0003 A 001 PJM ABC B 002 PJM BCD C 003 PJM DCE
    LEI 1 LEI 2 Relationship Start date End date Relationship description 003 001 OWNS (a) 2015/12/04 Wholly owned subsidiary. 003 002 CONTROLS (a) 2015/02/01 Exercises discretion over key market functions.

    In the event several Connected Entities are market participants in the same RTO or ISO, a combined filing of the structural relationships, but not the debt and contracts, could be made, disclosing on one form all of the connected entities. In such case, each Connected Entity must consent to the combined filing and verify the accuracy of the information.

    More Complex Structures

    Relationships within the electric industry can be very complex. The illustrated method of reporting pairwise relationships based on LEIs extends to relationships of arbitrary complexity.

    EP29SE15.002 Standard company name LEI A 001 B 002 C 003 D 004 E 005 F 006 G 007 H 008 LEI 1 LEI 2 Relationship Start date End date Relationship description 003 001 OWNS (a) 2015/12/04 Wholly owned subsidiary. 003 002 CONTROLS (a) 2015/02/01 Exercises discretion over key market functions. 001 002 HAS A TOLLING AGREEMENT WITH (c) 2010/01/01 2020/01/01 1 will provide raw materials to 2 under an agreement that 2 will return electricity at a specified heat rate. 001 004 OWNS (a) 2011/05/02 Wholly-owned subsidiary. 001 005 OWNS (a) 2000/01/05 Wholly-owned subsidiary. 005 006 HAS A FUEL MANAGEMENT AGREEMENT WITH (d) 2005/01/01 Procures gas and transport on behalf of 2. 006 007 OWNS (a) 2005/01/01 Wholly-owned subsidiary 006 008 HAS AN ASSET MANAGEMENT AGREEMENT WITH (d) 2001/10/01 Manages fleet operations. 004 007 HAS AN ENERGY MARKETING AGREEMENT WITH (d) 2010/01/01 2015/01/01 Fee-based marketing agreement of the energy produced by 2's assets.

    The entity in the LEI 1 column is understood to be the entity on the left hand side of the relationship and the entity in the LEI 2 column is understood to be the entity on the right hand side.

    Multiple Relationships

    In some cases there may be multiple relationships between two market participants. Multiple relationships can be filed as follows:

    EP29SE15.003 LEI 1 LEI 2 Relationship Other fields 001 002 OWNS 001 002 CONTROLS Multilateral Relationships

    Multilateral relationships have three or more parties. Such relationships are reportable using a relationship identification field, as long as all pairwise relationships that are party to the relationship are reported and each multilateral relationship is assigned a unique relationship identifier. The relationship identifier will be assigned by the reporting entity, each reportable relationship will have a unique relationship identifier, the identifier will be a numeric sequence (i.e. no names, no punctuation, etc.), and when possible, relationship identifiers should be consistent between filings.

    EP29SE15.004 LEI 1 LEI 2 Relationship Contract ID Other fields 003 002 CONTRACT 1 003 001 CONTRACT 1 002 001 CONTRACT 1

    These fields can be used to report any number of participants, contracts, or relationships, regardless of complexity.

    UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Collection of Connected Entity Data from Regional Transmission Organizations and Independent System Operators
    (Issued September 17, 2015)

    LaFLEUR, Commissioner, concurring: Today's order proposes to amend the Commission's regulations by establishing a newly defined term, “Connected Entity,” and to require the collection of information regarding Connected Entities, to allow the Commission to better monitor complex business relationships that could be utilized to engage in manipulative conduct in our jurisdictional markets. I support this proposal because it is important that the Commission, in accordance with our statutory mandate, have the tools to protect customers from manipulative behavior, and the collection of this information would assist the Commission with that effort.

    However, the Commission should always consider carefully whether the benefits offered by new compliance obligations outweigh the burdens that will be faced by market participants. I believe that the requirements in the Noticed of Proposed Rulemaking would create a significant new reporting regime for all market participants, as well as the RTOs and ISOs. I therefore encourage market participants to submit comments on today's proposed rulemaking that address the benefits of this proposed regulation, as well as the incremental costs or burdens that would be created by this new reporting requirement. I will carefully consider these issues as I decide whether to support the final rule.

    Accordingly, I respectfully concur.

    Cheryl A. LaFleur, Commissioner.
    [FR Doc. 2015-24281 Filed 9-28-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM15-24-000] Settlement Intervals and Shortage Pricing in Markets Operated by Regional Transmission Organizations and Independent System Operators AGENCY:

    Federal Energy Regulatory Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is proposing to revise its regulations to require that each regional transmission organization (RTO) and independent system operator (ISO) settle energy transactions in its real-time markets at the same time interval it dispatches energy and settle operating reserves transactions in its real-time markets at the same time interval it prices operating reserves. The Commission also proposes to revise its regulations to require that each RTO/ISO trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs. Adopting these reforms would align prices with resource dispatch instructions and operating needs, providing appropriate incentives for resource performance.

    DATES:

    Comments are due November 30, 2015.

    ADDRESSES:

    Comments, identified by docket number, may be filed in the following ways:

    • Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

    • Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document.

    FOR FURTHER INFORMATION CONTACT: Stanley Wolf (Technical Information), Office of Energy Policy and Innovation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6841, [email protected] Eric Vandenberg (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6283, [email protected] Joshua Kirstein (Legal Information), Office of General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-8519, [email protected]
    SUPPLEMENTARY INFORMATION:

    Table of Contents Paragraph

  • Numbers
  • I. Background 11. II. Discussion 14. A. Settlement Intervals 15. 1. Comments on Settlement Intervals 16. 2. Need for Reform of Settlement Intervals 26. 3. Commission Proposal 34. B. Shortage Pricing Triggers 41. 1. Comments on Shortage Pricing Triggers 41. 2. Need for Reform of Shortage Pricing Triggers 46. 3. Commission Proposal 51. III. Compliance 55. IV. Information Collection Statement 58. V. Regulatory Flexibility Act Certification 63. VI. Environmental Analysis 65. VII. Comment Procedures 66. VIII. Document Availability 70. Regulatory Text APPENDIX A: List of Short Names/Acronyms of Commenters

    1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) is proposing to address two existing practices that may fail to compensate resources at prices that reflect the value of the service resources provide to the system, thereby distorting price signals. In certain instances, this creates a disincentive for resources to respond to dispatch signals. The Commission proposes to require that each regional transmission organization (RTO) and independent system operator (ISO) align settlement and dispatch intervals by settling energy transactions in its real-time markets at the same time interval it dispatches energy and settling operating reserves transactions in its real-time markets at the same time interval it prices operating reserves.1 The Commission is also proposing to require that each RTO/ISO trigger shortage pricing 2 for any dispatch interval during which a shortage of energy or operating reserves 3 occurs.

    1 In this NOPR, the Commission sometimes uses the term “dispatch” as shorthand when describing how RTOs/ISOs acquire and price energy and operating reserves. We clarify that our proposal with respect to operating reserves refers to the intervals at which they are acquired and priced. For instance, the Commission does not use the term “dispatch” to refer to the four-to-five second signal sent to resources on Automatic Generation Control.

    2 Shortage pricing is triggered under two general scenarios: when the system operator does not have enough resources available to meet energy and operating reserve requirements, and when an RTO or ISO establishes a price above which it will choose to be deficient of operating reserves rather than procure resources that may be available to meet the minimum requirement, but cost more than the established price. Federal Energy Regulatory Commission, Price Formation in Organized Wholesale Electricity Markets: Staff Analysis of Shortage Pricing, Docket No. AD14-14-000, at 9 (Oct. 2014), available at http://www.ferc.gov/legal/staff-reports/2014/AD14-14-pricing-rto-iso-markets.pdf (Shortage Pricing Paper).

    3 The Commission's regulations define an operating reserve shortage as “a period when the amount of available supply falls short of demand plus the operating reserve requirement.” 18 CFR 35.28(b)(6).

    2. The Commission requires that rates for jurisdictional electricity service be just and reasonable and not unduly discriminatory or preferential. This requirement extends to market- and cost-based rates. The Commission has taken action to correct rates that become unjust and unreasonable, and has done so not only when the rates do not reflect costs but also when the underlying features, rate design, or market design fail to align.4 It is paramount that resources have appropriate incentives to respond to an energy or operating reserve shortage and that each resource is compensated based on a price that reflects the value of the service it provides.

    4See, e.g., Frequency Regulation Compensation in the Organized Wholesale Power Markets, Order No. 755, FERC Stats. & Regs. ¶ 31,324, at P 3 (2011), order on reh'g, Order No. 755-A, 138 FERC ¶ 61,123 (2012) (“requir[ing] RTOs and ISOs to compensate frequency regulation resources based on the actual service provided, including a capacity payment that includes the marginal unit's opportunity costs and a payment for performance that reflects the quantity of frequency regulation service provided by a resource when the resource is accurately following the dispatch signal”).

    3. It has become apparent that there are instances in which certain current RTO/ISO practices may fail to reflect the value of providing a given service, thereby distorting price signals and failing to provide appropriate signals for resources to respond to the actual operating needs of the market. One such practice that the Commission has identified and proposes to reform occurs when RTOs/ISOs dispatch resources every five minutes but perform settlements based on an hourly integrated price.5 This misalignment between dispatch and settlement intervals may distort the price signals sent to resources and fail to reflect the actual value of resources responding to operating needs because compensation will be based on average output and average prices across an hour rather than output and prices during the periods of greatest need within a particular hour.

    5 Hourly integrated prices are equal to the average price of all the individual dispatch intervals across an hour.

    4. The Commission also preliminarily finds that a second problem occurs if there is a delay between the time when a system experiences a shortage of energy and operating reserves and the time when prices reflect the shortage condition. This can be particularly problematic when, for example, a shortage is required to last a minimum time period before shortage pricing is triggered. In this instance, short-term prices may fail to reflect potential reliability costs, as well as the value of both internal and external market resources responding to a dispatch signal.

    5. To address the problems associated with differing dispatch intervals and settlement intervals, as well as with shortage pricing triggers, the Commission proposes to require that each RTO/ISO (1) settle energy transactions in its real-time markets at the same time interval it dispatches energy and settle operating reserves transactions in its real-time markets at the same time interval it prices operating reserves, and (2) trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs.6 The settlement interval and shortage pricing reforms proposed herein will help ensure that resources have price signals that provide incentives to conform their output to dispatch instructions, and that prices reflect operating needs at each dispatch interval.

    6 Operating reserves refer to certain ancillary services procured in the wholesale market that have different definitions in each RTO/ISO. Operating reserves typically include:

    (a) Regulating Reserve, used to account for very short-term deviations between supply and demand (e.g. 4 to 6 seconds); (b) Spinning, or Synchronous Reserve, which is capacity held in reserve and synchronized to the grid and able to respond within a relatively short amount of time (e.g., within 10 minutes), to be used in case of a contingency, such as the loss of a generator; and, (c) Non-Spinning Reserve, capacity that is not synchronized to the grid and which can take longer to respond (e.g., within 10-30 minutes) in case of a contingency.

    Federal Energy Regulatory Commission, Price Formation in Organized Wholesale Electricity Markets: Staff Analysis of Shortage Pricing, Docket No. AD14-14-000, at 3 n.7 (Oct. 2014), available at http://www.ferc.gov/legal/staff-reports/2014/AD14-14-pricing-rto-iso-markets.pdf (Shortage Pricing Paper).

    6. In Docket No. AD14-14-000, the Commission initiated a proceeding to evaluate issues regarding price formation in the energy and ancillary services markets operated by RTOs/ISOs (price formation proceeding). The Commission stated that the goals of price formation are to (1) maximize market surplus for consumers and suppliers; (2) provide correct incentives for market participants to follow commitment and dispatch instructions, make efficient investments in facilities and equipment, and maintain reliability; (3) provide transparency so that market participants understand how prices reflect the actual marginal cost of serving load and the operational constraints of reliably operating the system; and (4) ensure that all suppliers have an opportunity to recover their costs.7

    7See Notice Inviting Post-Technical Workshop Comments, Docket No. AD14-14-000, at 2 (Jan. 16, 2015); Notice, Docket No. AD14-14-000 (June 19, 2014).

    7. The action the Commission takes herein is the first step to advancing the goals of the Commission's price formation proceeding. The Commission expects to undertake further action addressing various price formation topics, including offer price caps, mitigation, uplift transparency, and uplift drivers. The proposed reforms in this NOPR advance at least two of the Commission's goals with respect to price formation. Specifically, the proposed reforms will help provide correct incentives for market participants to follow commitment and dispatch instructions, to make efficient investments in facilities and equipment, and to maintain reliability. The proposed reforms will also help provide transparency and certainty so that market participants understand how prices reflect the actual marginal cost of serving load and the operational constraints of reliably operating the system. Price signals that reflect operating needs and system conditions would enhance incentives for resources to respond to dispatch instructions.8 In the long-term, the Commission expects that appropriate price signals would produce prices that consistently reflect operating needs and system conditions which, in turn, would help to encourage efficient investments in facilities and equipment, enabling reliable service.9

    8 The Commission notes that the reforms proposed herein would further augment existing mechanisms in each RTO/ISO market that provide incentives to follow dispatch instructions, such as penalties for excessive or deficient energy and the allocation of commitment and dispatch costs to deviations from energy dispatch targets. See, e.g., MISO, FERC Electric Tariff, §§ 40.3.3(a) (36.0.0) (allocating Revenue Sufficiency Guarantee costs to, inter alia, resources providing excessive or deficient energy), 40.3.4 (33.0.0) (charges for excessive or deficient energy deployment).

    9See, e.g., Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. 42:13-19 (Oct. 28, 2014).

    8. Requiring settlement intervals to match dispatch intervals would make resource compensation more transparent by, among other things, increasing the proportion of resource payment provided through payments of energy and operating reserves rather than uplift.10 Apportioning a greater proportion of a resource's revenue through payments for energy and operating reserves, rather than through uplift payments, increases transparency to the market by reflecting the costs of meeting system needs in settlement prices that are factored into a market price. In contrast, uplift payments bundle together a multitude of costs that are not factored into a market price. This increased transparency, in turn, better informs decisions to build or maintain resources and enhances consumers' ability to hedge. The benefits summarized above and discussed in detail below would ultimately help to ensure just and reasonable rates.

    10 RTOs and ISOs provide make-whole payments, or uplift payments, to resources whose commitment and dispatch resulted in a shortfall between the resource's offer and the revenue earned through market clearing prices. See, e.g., Federal Energy Regulatory Commission, Price Formation in Organized Wholesale Electricity Markets: Staff Analysis of Uplift in RTO and ISO Markets, Docket No. AD14-14-000, at 2 (Aug. 2014), available at http://www.ferc.gov/legal/staff-reports/2014/08-13-14-uplift.pdf (Uplift Paper).

    9. Implementing shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs would provide an incentive for resources to ensure that they are available to respond to high prices, which should help alleviate shortages and avoid shortage pricing during subsequent dispatch intervals. This reform would also ensure that resources operating during a shortage are compensated for the value of the service that they provide, regardless of whether the shortage is short-lived.

    10. The Commission seeks comment on these proposed reforms sixty (60) days after publication of this NOPR in the Federal Register.

    I. Background

    11. The Commission has addressed price formation in organized markets on prior occasions. In Order No. 719, the Commission addressed shortage pricing 11 and required RTOs/ISOs to develop and implement shortage pricing rules that would apply during operating reserve shortages to “ensure that the market price for energy reflects the value of energy during an operating reserve shortage.” 12 The Commission required such rules out of concern that inappropriate price signals during an operating reserve shortage would provide an insufficient incentive for market participants to take appropriate actions.

    11Wholesale Competition in Regions with Organized Electric Markets, Order No. 719, FERC Stats. & Regs. ¶ 31,281, at PP 192-194 (2008), order on reh'g, Order No. 719-A, FERC Stats. & Regs. ¶ 31,292, order on reh'g, Order No. 719-B, 129 FERC ¶ 61,252 (2009).

    12Id. P 194.

    12. On June 19, 2014, the Commission initiated the price formation proceeding. In initiating that proceeding, the Commission stated that there may be opportunities for the RTOs/ISOs to improve the energy and ancillary service price formation process. The Commission explained that locational marginal prices (LMPs) used in energy and ancillary services markets ideally “would reflect the true marginal cost of production, taking into account all physical system constraints, and these prices would fully compensate all resources for the variable cost of providing service.” 13 The Commission directed staff to conduct outreach and to convene technical workshops on the following four general issues: (1) Use of uplift payments; (2) offer price mitigation and offer price caps; (3) scarcity and shortage pricing; and (4) operator actions that affect prices.14 During the fall of 2014, staff convened technical workshops and issued reports on these topics. In one of those reports, issued in October 2014, staff analyzed shortage pricing issues.15

    13 Notice, Docket No. AD14-14-000, at 2 (June 19, 2014).

    14Id. at 1, 3-4.

    15See Shortage Pricing Paper.

    13. In its January 2015 Notice Inviting Comments, the Commission invited comments on specific questions that arose from the price formation technical workshops.16 In response, among other price formation issues, commenters addressed settlement intervals and shortage pricing, as detailed below.

    16 Notice Inviting Post-Technical Workshop Comments, Docket No. AD14-14-000 (Jan. 16, 2015). A list of commenters and the abbreviated names the Commission will use for them in this document appears in Appendix A.

    II. Discussion

    14. In the following section, for each of the two proposals, the Commission first summarizes the views of commenters in the price formation proceeding on settlement intervals and triggers for shortage pricing. The Commission then explains the need for the reform set forth in the proposal and describes the proposed reform in detail. To remedy the potential unjust and unreasonable rates that are based on the use of hourly integrated prices for settlement as well as on restrictions on shortage pricing discussed more fully herein, the Commission proposes, pursuant to section 206 of the Federal Power Act (FPA),17 to require that each RTO/ISO (1) settle energy transactions in its real-time markets at the same time interval it dispatches energy and settle operating reserves transactions in its real-time markets at the same time interval it prices operating reserves, and (2) trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs.18

    17 16 U.S.C. 824e.

    18 The Commission is not at this time proposing to change the price paid by any RTO/ISO when shortage pricing is triggered.

    A. Settlement Intervals

    15. Some RTOs/ISOs do not settle resources at the same intervals at which they dispatch resources in their real-time energy markets.19 Rather, they settle resources based on hourly average prices, as shown below.

    19 California Independent System Operator Corporation (CAISO), New York Independent System Operator, Inc. (NYISO), and Southwest Power Pool, Inc. (SPP) currently use a settlement interval that matches the dispatch interval. ISO New England Inc. (ISO-NE) and Midcontinent Independent System Operator, Inc. (MISO) are considering moving to five-minute settlements. PJM Interconnection, L.L.C. (PJM) has stated that PJM settles hourly and does not currently anticipate proposing to move to a different interval. See Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. 52:21-53:1, 53:11-54:11, 54:22-55:10 (Oct. 28, 2014).

    Table 1—RTO/ISO Dispatch and Settlement Intervals Real-time
  • dispatch 20
  • (minutes)
  • Real-time
  • settlement 21
  • CAISO 5 5 minute. ISO-NE 5 hourly average. MISO 5 hourly average. NYISO 5 5 minute. PJM 5 hourly average. SPP 5 5 minute.
    1. Comments on Settlement Intervals

    16. In the price formation proceeding, commenters discussed using shorter settlement intervals (i.e., sub-hourly) and provided implementation and transition recommendations.

    20See CAISO, eTariff, § 34.5 (17.0.0); ISO-NE., Transmission, Markets and Services Tariff, Market Rule 1, § III.2.3 (15.0.0); MISO, FERC Electric Tariff, § 40.2 (34.0.0); NYISO Markets and Services Tariff, § 4.4.2.1 (17.0.0); PJM OATT, Attachment K, Appendix, § 2.3 (2.0.0); SPP, OATT, Sixth Revised Volume No. 1, Attachment AE, § 6.2.2 (1.0.0).

    21See CAISO, eTariff, § 11.5 (2.0.0), Appendix A, Settlement Interval (2.0.0); ISO-NE., Transmission, Markets and Services Tariff, Market Rule 1, § III.2.2(b) (15.0.0); MISO, FERC Electric Tariff, §§ 40.3 (32.0.0), 40.3.1 (32.0.0), 40.3.3 (36.0.0); NYISO, NYISO Tariffs, NYISO Markets and Services Tariff, §§ 4.4.2.1, 4.4.2.8 (17.0.0); PJM, Intra-PJM Tariffs, OATT, Attachment K, Appendix, §§ 2.5(e), (4.0.0), 3.2.1(e), (f) (28.0.0); SPP, OATT, Sixth Revised Volume No. 1, Attachment AE, §§ 8.6, 8.6.1 (2.1.0). The above-tariff citations refer to internal transactions. CAISO settles its intertie interchange transactions on fifteen-minute intervals. See CAISO, CAISO eTariff, HASP Block Intertie Schedule (0.0.0).

    17. Commenters in support of sub-hourly settlements describe general benefits, as well as specific related improvements, from the adoption of sub-hourly settlements. Commenters from a broad range of the industry state that sub-hourly settlement intervals would provide significant benefits to the market by compensating resources fully for their flexibility and ability to follow dispatch instructions. According to these commenters, sub-hourly settlement intervals would permit resources to be rewarded for their ability to perform by earning greater revenues when prices fluctuate, which in the long run should induce more flexibility from new and existing resources and eventually lower dispatch costs and improve reliability.22

    22See, e.g., ANGA Comments, Docket No. AD14-14-000, at 3-4 (Mar. 6, 2015); Brookfield Comments, Docket No. AD14-14-000, at 8 (Mar. 6, 2015); Calpine Comments, Docket No. AD14-14-000, at 11-12 (Mar. 6, 2015); Entergy Nuclear Power Marketing Comments, Docket No. AD14-14-000, at 12 (Mar. 6, 2015); Exelon Comments, Docket No. AD14-14-000, at 19 (Mar. 6, 2015); GDF SUEZ Comments, Docket No. AD14-14-000, at 9-10 (Mar. 6, 2015); ISO-NE Comments, Docket No. AD14-14-000, at 20-22 (Mar. 6, 2015); MISO Comments, Docket No. AD14-14-000, at 16-17 (Mar. 6, 2015); New York Transmission Owners Comments, Docket No. AD14-14-000, at 9 (Mar. 6, 2015); NYISO Comments, Docket No. AD14-14-000, at 12-13 (Mar. 6, 2015); PJM Comments, Docket No. AD14-14-000, at 11-12 (Mar. 6, 2015); Potomac Economics Comments, Docket No. AD14-14-000, at 10 (Mar. 6, 2015); PSEG Companies Comments, Docket No. AD14-14-000, at 19-22 (Mar. 6, 2015); Wisconsin Electric Comments, Docket No. AD14-14-000, at 8 (Mar. 6, 2015); see also Xcel Comments at 4-5 (supporting sub-hourly settlement intervals but requesting that the Commission not require reporting sub-hourly settlement data in the Electric Quarterly Reports and if need be, direct the RTOs/ISOs to report that data).

    18. Commenters detail other potential benefits to sub-hourly settlement in the real-time market. PJM Utilities Coalition notes that sub-hourly settlement would address price distortions and uneconomic incentives to produce power caused by the use of hourly settlements.23 PJM Utilities Coalition also states that sub-hourly settlement would solve the problem of dispatching resources just before or after the clock hour and the resulting implications of averaging output during the clock hour.24 Wartsila states that the transition to sub-hourly settlements provides valuable price signals to flexible capacity and notes that internal combustion engines in SPP have seen a three-fold increase in their capacity factor since SPP adopted sub-hourly real-time settlements, thus increasing compensation to those resources and lowering overall system costs.25

    23 PJM Utilities Coalition Comments, Docket No. AD14-14-000, at 10-11 (Mar. 6, 2015).

    24Id.

    25 Wartsila Comments, Docket No. AD14-14-000, at 1-2 (Mar. 6, 2015).

    19. PSEG Companies state that the inefficiencies of hourly settlements in PJM's real-time market are evident when the LMP becomes relatively high during the first few dispatch intervals.26 PSEG Companies add that internal resources will ramp up to respond to the price signal and other resources and external suppliers will also schedule interchange into PJM to capture the higher prices; when demand falls off in the subsequent intervals, however, resources will not reduce output in response to the lower prices (because they know they will be compensated at the hourly average prices), which has led to operational problems.27 EPSA supports sub-hourly real-time market settlement in order to better align dispatch with price.28

    26 PSEG Companies Comments, Docket No. AD14-14-000, at 20 (Mar. 6, 2015).

    27Id. at 20-21.

    28 EPSA Comments, Docket No. AD14-14-000, Attach. A, Post-Technical Conference Questions for Comment: EPSA Responses, at 28 (Mar. 6, 2015).

    20. At the Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop held on October 28, 2014, representatives from RTOs/ISOs discussed the effect of settlement intervals on appropriately compensating resources based on actual performance, on providing an incentive for resources to follow dispatch signals, and on reducing uplift.29 At the Uplift Workshop held on September 8, 2014, the representative from Potomac Economics asserted that settling transactions on an hourly price, when dispatch instructions change every five or fifteen minutes, has caused flexible units in MISO to operate inflexibly in order to obtain a higher hourly price. According to this panelist, this disparity between settlement and dispatch intervals has prompted development of a class of uplift payments meant to hold inflexible generators harmless for following dispatch instructions and to ensure generators' flexibility. This panelist suggested that aligning settlement and dispatch intervals could eliminate such uplift payments.30

    29See, e.g., Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. 52:16-55:10 (Oct. 28, 2014).

    30 Uplift Workshop, Docket No. AD14-14-000, Tr. 45:4-23 (Sept. 8, 2014).

    21. In its comments, CAISO indicates that it uses both fifteen-minute and five-minute settlement intervals in its real-time market and that these intervals provide a dynamic price signal to reflect grid conditions. According to CAISO, fifteen-minute intertie schedules and prices provide an incentive for variable energy resources to offer economic bids into the CAISO market, which can reduce variable energy resources' exposure to the difference between day-ahead and five-minute real-time prices.31

    31 CAISO Comments, Docket No. AD14-14-000, at 18-19 (Mar. 6, 2015).

    22. Commenters in the price formation proceeding express caution about implementation and costs resulting from RTOs'/ISOs' adoption of sub-hourly settlements—costs both to RTOs/ISOs and market participants. SPP states that its sub-hourly settlement rules cost more to implement due to increased data storage and validation requirements.32 ISO-NE and GDF SUEZ state that the one impediment to implementing sub-hourly real-time settlements in the ISO-NE market is the need for five-minute revenue quality metering; ISO-NE states that, according to stakeholders, it could take several years to implement and cost up to $20 million to install the necessary equipment, software, and data systems.33 PJM similarly states that moving to sub-hourly settlements will require it to make software and hardware changes to multiple applications and systems at a cost that is anecdotally comparable to a moderately complex market integration proposal.34

    32 SPP Comments, Docket No. AD14-14-000, at 4 (Mar. 6, 2015).

    33 ISO-NE Comments, Docket No. AD14-14-000, at 23 (Mar. 6, 2015); GDF SUEZ Comments, Docket No. AD14-14-000, at 10 (Mar. 6, 2015).

    34 PJM Comments, Docket No. AD14-14-000, at 12 (Mar. 6, 2015).

    23. Several commenters stress that, while sub-hourly settlements can bring benefits and efficiencies to the real-time market, transitioning to that settlement structure would require significant expenditures. Some RTOs/ISOs assert that there will be significant costs to make the necessary upgrades to metering equipment, software, hardware, and data systems, and that some of these upgrades could take several years to implement. As a result of these expenditures, some commenters note that action to align the settlement and dispatch interval may not occur absent a Commission directive.35 Other commenters observe that load-serving entities might incur significant costs associated with telemetry and related equipment upgrades; increases in RTO/ISO administrative charges; and additional costs to meter, transfer, and store the data and to process settlements in accordance with RTO/ISO timelines.36

    35 ISO-NE Comments, Docket No. AD14-14-000, at 23 (Mar. 6, 2015); PJM Comments, Docket No. AD14-14-000, at 12 (Mar. 6, 2015). GDF SUEZ echoes ISO-NE's statements about cost and timing to implement sub-hourly settlements in the ISO-NE market and requests that the Commission provide direction to overcome the lack of incentives facing meter readers to implement sub-hourly settlements. GDF SUEZ Comments, Docket No. AD14-14-000, at 10 (Mar. 6, 2015).

    36 PJM Utilities Coalition Comments, Docket No. AD14-14-000, at 11 (Mar. 6, 2015); TAPS Comments, Docket No. AD14-14-000, at 16-17 (Mar. 6, 2015).

    24. Due to the anticipated costs, several commenters request that the Commission require cost-benefit analyses before adoption of sub-hourly settlements, or that the Commission leave the decision to adopt sub-hourly settlements to RTO/ISO stakeholders.37 Some commenters assert that RTO/ISO stakeholders must vet the implementation of sub-hourly settlements to ensure that appropriate market power mitigation measures are in place.38 Exelon states that, while sub-hourly settlements can improve market efficiency, the timing and prioritization of adopting sub-hourly settlements should be evaluated when RTOs/ISOs develop work plans to analyze the causes of uplift.39

    37 Direct Energy Comments, Docket No. AD14-14-000, at 8 (Mar. 6, 2015); OMS Comments, Docket No. AD14-14-000, at 4 (Mar. 2, 2015); PJM Utilities Coalition Comments, Docket No. AD14-14-000, at 11 (Mar. 6, 2015); TAPS Comments, Docket No. AD14-14-000, at 16 (Mar. 6, 2015).

    38 APPA and NRECA Comments, Docket No. AD14-14-000, at 38 (Mar. 6, 2015); see also PJM Utilities Coalition Comments, Docket No. AD14-14-000, at 11 (Mar. 6, 2015).

    39 Exelon Comments, Docket No. AD14-14-000, at 19 (Mar. 6, 2015).

    25. Commenters also provide the Commission with recommendations for implementation of sub-hourly settlement. PJM Utilities Coalition recommends that any move to sub-hourly settlements include at least one year notice of intent to allow for system readiness.40 PJM Utilities Coalition suggests that RTOs/ISOs could first transition to fifteen-minute settlement intervals before moving to five-minute settlement intervals with stakeholders vetting the costs and benefits.41 ANGA recommends that, to the extent possible, five-minute settlement intervals be made consistent across different RTOs/ISOs. According to ANGA, inconsistencies across RTO/ISO boundaries can increase market and interchange volatility and result in large price fluctuations that are not based upon market fundamentals and which could create an incentive for gaming between markets as market participants arbitrage distorted prices.42

    40 PJM Utilities Coalition Comments, Docket No. AD14-14-000, at 11 (Mar. 6, 2015).

    41Id.

    42 ANGA Comments, Docket No. AD14-14-000, at 4 (Mar. 6, 2015).

    2. Need for Reform of Settlement Intervals

    26. The Commission preliminarily finds that the use of hourly integrated prices for real-time settlement may have the unintended effect of distorting price signals and, in certain instances, contributing to markets failing to respond appropriately to operating needs. Specifically, hourly integrated prices for real-time settlement may (1) not accurately reflect the value a resource provides to the system; (2) discourage resources from following dispatch instructions; and (3) cause increased uplift payments. Therefore, the Commission preliminarily finds that the use of hourly integrated prices for real-time settlement may result in rates that are unjust and unreasonable.

    27. First, because hourly prices are an integrated average of sub-hourly dispatch interval prices over an hour, the hourly price does not reflect system needs and costs within a dispatch interval; thus, resources are not necessarily paid a price that reflects the value of the service they provide to the system during the dispatch interval. For example, a resource providing energy during high-priced dispatch intervals, that is then paid based on a lower hourly integrated price, is not compensated based on a price that reflects actual market conditions or the price at which it was economic to dispatch this resource.

    28. Real-time settlement using prices that are averaged over an hour cannot capture the varying value of the service resources provide over the hour, which decreases the efficiency of RTO/ISO operations because RTOs/ISOs require resources to move within the hour to address changing operating conditions. Such settlement prices become the prices made transparent to the market and, when they are averaged to the point of not reflecting operating conditions and resultant supply and demand conditions, they may be unjust and unreasonable. In Order No. 719, the Commission found that then-existing rules on shortage pricing “that do not allow for prices to rise sufficiently during an operating reserve shortage to allow supply to meet demand” may be unjust and unreasonable.43 Similarly, the Commission preliminarily finds here that market rules that settle real-time transactions at hourly integrated prices may be unjust and unreasonable because they result in settlement prices that do not reflect actual operating conditions or the value of energy resulting from supply and demand.

    43 Order No. 719, FERC Stats. & Regs. ¶ 31,281 at P 192.

    29. Second, the use of hourly integrated prices for settling transactions can provide an unwarranted incentive for resources to disregard dispatch instructions. For example, PSEG Companies and PJM Utilities Coalition explain that high prices in the beginning of an hour can cause internal resources to ramp up and external transactions to schedule into PJM to capture higher prices; when demand and prices fall in subsequent intervals, however, hourly integrated prices create an incentive to continue producing or importing energy, regardless of dispatch instructions to reduce output.44

    44 PSEG Companies Comments, Docket No. AD14-14-000, at 20 (Mar. 6, 2015); PJM Utilities Coalition Comments, Docket No. AD14-14-000, at 10-11 (Mar. 6, 2015).

    30. As PSEG Companies illustrate by example, the use of hourly integrated prices for real-time settlement can create incentives that do not necessarily align with the system operator's dispatch instructions.45 Consider a resource with $100/MWh cost, and an LMP that is $500/MWh for the first fifteen minutes of the hour (three intervals). Even if the LMP dropped to $0/MWh for the remainder of the hour, the hourly integrated price ($125/MWh) would still exceed the resource's cost of production. This settlement structure would provide an incentive to generate as much energy as possible, not only during the first fifteen minutes of very high prices, but during the entire hour, irrespective of the five-minute price thereafter. Studies have shown that, due to the incentives created by hourly integrated settlements, resources can earn significant additional payments by not following dispatch signals.46

    45 PSEG Companies Comments, Docket No. AD14-14-000, at 20 & n.25 (Mar. 6, 2015).

    46 An analysis of actual LMP data showed how hourly settlement price signals can allow a resource to earn nearly twice the profit compared to if the resource is paid based on five-minute LMP price signals. See E. Ela et al., National Renewable Energy Laboratory and Argonne National Laboratory, Evolution of Wholesale Electricity Market Design with Increasing Levels of Renewable Generation, at 62-66 (Sept. 2014), available at http://www.nrel.gov/docs/fy14osti/61765.pdf.

    31. Failing to follow dispatch instructions can impair the ability of the system operator to manage dispatch costs. Specifically, failing to follow dispatch instructions can result in power imbalances that the system operator must address by taking action, such as increasing use of regulating reserves or committing additional resources, which may result in increased uplift. These actions result in additional costs that are ultimately passed on to consumers. Because hourly integrated prices can impair the ability of the system operator to manage dispatch and the costs of dispatch, the Commission finds preliminarily that hourly integrated prices for real-time settlement can lead to unjust and unreasonable rates.47

    47 In Order No. 764, the Commission similarly found that impairing the ability of the system operator to manage costs resulted in unjust and unreasonable rates; it determined a need for reform of scheduling practices and data reporting practices where “existing practices . . . impair[ed] the ability of public utility transmission providers and their customers to manage costs associated with [Variable Energy Resource] integration effectively.” Integration of Variable Energy Resources, Order No. 764, FERC Stats. & Regs. ¶ 31,331, at PP 21-22, order on reh'g and clarification, Order No. 764-A, 141 FERC ¶ 61,232 (2012), order on clarification and reh'g, Order No. 764-B, 144 FERC ¶ 61,222 (2013). It adopted reforms to those practices to “remedy undue discrimination and ensure just and reasonable rates through more efficient utilization of transmission and generation resources.” Id. P 22.

    32. Third, as MISO notes, dispatching resources within the hour based on their offers, but then compensating those resources based on a lower hourly integrated price can result in uplift costs because additional uplift payments are then necessary to enhance incentives for resources to follow dispatch instructions.48 A study by Potomac Economics shows that changes to sub-hourly settlement intervals can reduce uplift payments. Specifically, Potomac Economics estimates that, if MISO had implemented a real-time settlement interval that was equal to its dispatch interval (i.e., five minutes) in 2014, it would have reduced uplift payments by approximately $6.6 million.49

    48 MISO Comments, Docket No. AD14-14-000, at 17-18 (Mar. 6, 2015).

    49 Potomac Economics, 2014 State of the Market Report for the MISO Electricity Markets at 43-44 & Figure 19 (2015), available at https://www.misoenergy.org/Library/Repository/Report/IMM/2014%20State%20of%20the%20Market%20Report.pdf.

    33. For these reasons, the Commission proposes to require that each RTO/ISO settle energy transactions in its real-time markets at the same time interval it dispatches energy and settle operating reserves transactions in its real-time markets at the same time interval it prices operating reserves. The Commission also seeks comment on two additional aspects of the proposal, relating to intertie transactions and to operating reserves.

    3. Commission Proposal

    34. To remedy any potentially unjust and unreasonable rates caused by the use of hourly integrated prices for real-time settlement, the Commission proposes, pursuant to section 206 of the FPA,50 to require that each RTO/ISO settle energy transactions in its real-time markets at the same time interval it dispatches energy and settle operating reserves transactions in its real-time markets at the same time interval it prices operating reserves.51

    50 16 U.S.C. 824e.

    51 All RTOs/ISOs dispatch internal resources using five-minute intervals. See supra Table 1. Some RTOs/ISOs, however, such as CAISO, schedule external transactions, such as intertie transactions, on a different interval.

    35. As explained further below, in the short term, the settlement interval reform proposed in this NOPR should improve incentives for resources to respond quickly to dispatch instructions, which should in turn lead to operators taking fewer out-of-market actions to ensure that supply meets demand. In the long-term, these reforms should provide more accurate price signals, which should provide, together with other market price signals, the appropriate incentives to build or maintain resources that can respond to an energy or operating reserve deficiency. In addition, where settlement and dispatch intervals are aligned, resources dispatched economically during high-priced periods would receive those high prices rather than an hourly average of the dispatch interval LMPs, thereby reducing the need to make uplift payments. Apportioning a greater proportion of a resource's revenue through payments for energy and operating reserves, rather than through uplift payments, would increase transparency to the market by reflecting the costs of resource dispatch in settlement prices that are factored into a market price. In contrast, uplift payments bundle together a multitude of costs that are not factored into a market price. This increased transparency, in turn, better informs decisions to build or maintain resources and enhances consumers' ability to hedge.

    36. By improving resources' response to dispatch instructions, the settlement interval reform proposed herein would result in a more efficient use of generation resources to the benefit of all consumers. As described above, Wartsila explains that internal combustion engines have seen a three-fold increase in their capacity factor since SPP adopted sub-hourly real-time settlements, thus increasing compensation to those resources and lowering overall system costs.52

    52 Wartsila Comments, Docket No. AD14-14-000, at 1-2 (Mar. 6, 2015).

    37. As the Commission has concluded in the past, more efficient use of generation resources can ensure that jurisdictional services are provided at rates, terms, and conditions of service that are just and reasonable and not unduly discriminatory or preferential, in accord with the Commission's statutory obligations.53

    53 Order No. 764, FERC Stats. & Regs. ¶ 31,331 at P 5 (reforms adopted “allow for the more efficient utilization of transmission and generation resources to the benefit of all customers. This, in turn, fulfills our statutory obligation to ensure that Commission-jurisdictional services are provided at rates, terms, and conditions of service that are just and reasonable and not unduly discriminatory or preferential.”).

    38. While the Commission expects that the settlement interval reform proposed in this NOPR should provide significant benefits, the Commission understands that modifying settlement systems can be a complex and costly endeavor.54 Accordingly, the Commission proposes to allow twelve months from the date of the compliance filings for implementation of reforms to settlement systems to become effective. Further, the Commission seeks comment on the potential cost and time necessary to implement the reforms proposed in this NOPR. Specifically, the Commission seeks comment on required software changes, increased data storage and validation, and required changes to market participant metering or other equipment that would result from implementing the reforms proposed in this NOPR. The Commission also seeks comment on whether the changes necessary to implement the settlement interval reform proposed in this NOPR would be necessary in whole or in part to implement other reforms planned by the RTOs/ISOs or sought by stakeholders. The Commission further requests comments concerning whether such a long implementation period is necessary and how that implementation period may be shortened.

    54See, e.g., ISO-NE Comments, Docket No. AD14-14-000, at 23 & nn.28-30 (Mar. 6, 2015) (citing Meter Reader Working Group, Sub-hourly Time & Cost Estimate, at slide 9 (July 10, 2014), available at http://www.iso-ne.com/committees/markets/meter-reader) (citing estimates from meter reader entities in New England that implementation of five-minute market settlements could cost more than $20 million and take more than seven years).

    39. The Commission also seeks comment on two aspects of the substance of the settlement interval proposal relating to external transactions and to operating reserves. First, the logic underlying our reforms to settlement of internal transactions appears to apply equally to intertie transactions. While the Commission does not propose to extend the reforms to intertie transactions, the Commission seeks comment on whether settlement reforms are appropriate for intertie transactions that are scheduled on intervals different from the intervals on which RTOs/ISOs dispatch internal real-time energy.55 The Commission also seeks comment on whether it is necessary to align the settlement interval for intertie transactions with external scheduling intervals, i.e., fifteen minutes.

    55 The Commission clarifies that it is not proposing to modify the scheduling requirements adopted in Order No. 764.

    40. Second, the Commission recognizes that dispatch and pricing of energy and operating reserves are closely linked through co-optimization in the real-time market. This co-optimization ensures that resources are compensated for following RTO/ISO instructions and are indifferent to providing either energy or operating reserves during periods of high energy or operating reserves prices. Despite the close linkage between energy and operating reserves, the Commission understands that some of the problems associated with the use of hourly integrated prices for settling energy transactions might not apply as fully to settling operating reserves transactions. Further, the Commission recognizes the set of resources that are paid the real-time operating reserve price are potentially much smaller than the set of resources that are paid the real-time energy price. The Commission understands that certain RTOs/ISOs acquire operating reserves on a different interval than these RTOs/ISOs dispatch energy. Accordingly, the Commission seeks comment on whether the Commission should require RTOs/ISOs to settle all real-time operating reserves transactions at the same interval as real-time energy dispatch and settlement intervals or whether a settlement interval that differs from an RTO's/ISO's real-time energy dispatch interval would be appropriate for some operating reserves transactions.

    B. Shortage Pricing Triggers 1. Comments on Shortage Pricing Triggers

    41. Panelists at the October 28, 2014 Shortage Pricing/Mitigation Workshop and commenters in the price formation proceeding discussed shortage pricing triggers. Panelists and commenters were divided on whether all shortage events should trigger shortage pricing.56 Some favored such a trigger. These panelists explained that triggering shortage pricing for any shortage would allow pricing to reflect fluctuations across the hour better and also to offer more granular and accurate compensation.57 In contrast, the panelist from PJM was more hesitant in sending a shortage price signal when a combined-cycle turbine with a thirty-minute startup time took five additional minutes to come online, explaining that a shortage price signal during such an event would diverge from an operator's understanding that the system is not experiencing a shortage.58

    56See, e.g., Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. 38:19-51:8 (Oct. 28, 2014).

    57Id. at 46:1-47:17, 50:13-19.

    58 Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. 48:13-49:7 (Oct. 28, 2014).

    42. In its comments, EPSA argues that it is a high priority for all markets to establish shortage pricing based on operating reserves demand curves and co-optimized with the energy market.59 New York Transmission Owners argue that if the electric system is short of resources, even for only five or ten minutes, that shortage should trigger shortage pricing.60 Similarly, NYISO and Potomac Economics state that pricing each shortage, even a “transient shortage,” provides incentives to resources that have the capability to respond to brief-duration shortages.61

    59 EPSA Comments, Docket No. AD14-14-000, at 36 (Mar. 6, 2015).

    60 New York Transmission Owners Comments, Docket No. AD14-14-000, at 23 (Mar. 6, 2015).

    61 NYISO Comments, Docket No. AD4-14-000, at 28-29 (Mar. 6, 2015); Potomac Economics Comments, Docket No. AD14-14-000, at 26 (Mar. 6, 2015).

    43. Several commenters favor triggering shortage pricing without any minimum duration for the event.62 Arguments in favor of triggering shortage pricing for any shortage rely on the need to send price signals that provide an incentive for resources to offer their full flexibility and for market entry by reflecting actual system conditions in real time.63 EEI states that generators should be able to recover reasonable and supportable costs incurred in unexpected circumstances.64 PSEG Companies maintain that, while the ISO-NE and NYISO markets' rules (which price all shortages, no matter the duration) enable them to provide accurate price signals, PJM's market rules (which restrict “transient shortage” events from triggering shortage pricing) can distort its market prices.65

    62See, e.g., CAISO Comments, Docket No. AD14-14-000, at 40 (Mar. 6, 2015); Calpine Comments, Docket No. AD14-14-000, at 20 (Mar. 6, 2015); GDF SUEZ Comments, Docket No. AD14-14-000, at 19 (Mar. 6, 2015); NYISO Comments, Docket No. AD14-14-000, at 28 (Mar. 6, 2015); Potomac Economics Comments, Docket No. AD14-14-000, at 25 (Feb. 24, 2015).

    63 Calpine Comments, Docket No. AD14-14-000, at 20 (Mar. 6, 2015); NYISO Comments, Docket No. AD14-14-000, at 28-29 (Mar. 6, 2015); Potomac Economics Comments, Docket No. AD14-14-000, at 25-26 (Feb. 24, 2015).

    64 EEI Comments, Docket No. AD14-14-000, at 5 (Mar. 6, 2015).

    65 PSEG Companies Comments, Docket No. AD14-14-000, at 31 (Mar. 6, 2015).

    44. In contrast, Wisconsin Electric and PJM prefer that a shortage event last a minimum duration before triggering shortage pricing. Wisconsin Electric argues that there should be a minimum duration for invoking shortage pricing, and that this duration should allow flexibility to account for the nature of transmission limits and reserve levels in the operating environment, with shorter minimum intervals to invoke shortage pricing applicable under extreme load and temperatures.66 PJM states that the minimum duration for shortage pricing should be at least as long as (and perhaps longer than) the settlement interval and that a minimum interval for triggering shortage pricing is required to stimulate investment.67

    66 Wisconsin Electric Comments, Docket No. AD14-14-000, at 16 (Mar. 6, 2015).

    67 PJM Comments, Docket No. AD14-14-000, at 22 (Mar. 6, 2015).

    45. Some commenters argue that a “transient” or relatively brief shortage is not a “real” shortage because either the shortage is merely a mathematical artifact of the modeling, or the shortage will soon be resolved before generators can respond to shortage prices, even though the system is technically short of resources.68

    68 MISO Comments, Docket No. AD14-14-000, at 37 (Mar. 6, 2015); OMS Comments, Docket No. AD14-14-000, at 6 (Mar. 2, 2015); PG&E Comments, Docket No. AD14-14-000, at 6 (Mar. 6, 2015); PJM Comments, Docket No. AD14-14-000, at 22 (Mar. 6, 2015); SCE Comments, Docket No. AD14-14-000, at 7 (Mar. 6, 2015); TAPS Comments, Docket No. AD14-14-000, at 24 (Mar. 6, 2015).

    2. Need for Reform of Shortage Pricing Triggers

    46. Shortage prices send a short-term price signal to provide an incentive for the performance of existing resources and help to maintain reliability.69 However, some RTOs/ISOs currently restrict the triggering of shortage pricing to shortages due only to certain causes, or they require a shortage to exist for a certain time, e.g., thirty minutes, before invoking shortage pricing.70

    69See Shortage Pricing Paper at 4-5.

    70See Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. at 30:15-31:16 and 47:19-49:12 (describing PJM's practice); SPP, OATT, Sixth Revised Volume No. 1, Attachment AE, §§ 5.1.2.1 (1.0.0), 8.3.4.2 (0.0.0).

    47. As several commenters during the price formation proceeding noted, not invoking shortage pricing when there is a shortage (regardless of the duration or cause of that shortage) distorts price signals that are designed to elicit increased supply and to compensate resources for the value of the services they provide when the system needs energy or operating reserves. Moreover, prices in each dispatch interval should reflect the value provided by dispatched resources. In times of shortage, the value of services a resource provides increases because operating needs have increased. When shortage pricing is not applied when a shortage exists, the resulting price fails to reflect adequately the value that a resource provides to the system. This failure impairs efficient system dispatch and hinders appropriate incentives for resources to address an energy or operating reserves shortage. Because of such effects, the Commission finds preliminarily that the resulting price is not just and reasonable.

    48. In making this preliminary finding, the Commission's rationale here is similar to the rationale the Commission relied on in Order No. 719. In that order, the Commission required shortage pricing in RTOs and ISOs. The Commission reasoned that “rules that do not allow for prices to rise sufficiently during an operating reserve shortage to allow supply to meet demand are unjust, unreasonable, and may be unduly discriminatory.” 71 The Commission added: “In particular, [such rules] may not produce prices that accurately reflect the value of energy. . . .” 72 For similar reasons, the Commission now believes that not invoking shortage pricing during a shortage may result in unjust and unreasonable rates because prices do not accurately reflect the value of energy during a shortage. Accordingly, the Commission preliminarily finds that restricting shortage pricing to shortages lasting longer than one dispatch interval, or not invoking shortage pricing during relatively brief shortages, even though a shortage exists, results in rates that may be unjust and unreasonable.

    71 Order No. 719, FERC Stats. & Regs. ¶ 31,281 at P 192.

    72Id.

    49. Commenters that do not support triggering shortage pricing during “transient shortages” argue that such shortages can be either merely a mathematical artifact of the modeling, or a shortage that will soon be resolved before generators can respond to shortage prices, even though the system is technically short of resources.73 The Commission, however, believes there are steps an RTO/ISO can take to mitigate seemingly artificial shortages, such as using the RTO's/ISO's look-ahead capability to prevent or minimize the occurrence of shortages that are caused by modeling or other operating deficiencies.74 The Commission believes that reflecting the shortage in prices is still necessary even when a reserve shortage is so short-lived that resources may be unable to respond to the price signal, so that resources operating during the shortage are compensated for the value of the service that they provide. The Commission acknowledges that an RTO/ISO may need to calibrate administrative shortage prices to better reflect the value of the service.75

    73 MISO Comments, Docket No. AD14-14-000, at 37 (Mar. 6, 2015); OMS Comments, Docket No. AD14-14-000, at 6 (Mar. 2, 2015); PG&E Comments, Docket No. AD14-14-000, at 6-7 (Mar. 6, 2015); PJM Comments, Docket No. AD14-14-000, at 22-23 (Mar. 6, 2015); SCE Comments, Docket No. AD14-14-000, at 7-8 (Mar. 6, 2015); TAPS Comments, Docket No. AD14-14-000, at 24 (Mar. 6, 2015).

    74 One panelist at the Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop stated that a look-ahead process can position resources so that changing operating conditions do not lead to reserve shortages. See Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. 43:23-45:3 (Oct. 28, 2014) (“One of the drivers of putting in our forward-looking dispatch tools, our dispatch tools are looking out 60 minutes in a time-link dispatch, so they see upcoming system events.”).

    75See, e.g., Scarcity and Shortage Pricing, Offer Mitigation and Offer Caps Workshop, Docket No. AD14-14-000, Tr. 40:1-42:12 (Oct. 28, 2014) (“So now in MISO, most of those scarce, transient events are really very small shortages against their total requirement produces a much smaller pricing impact, but we still think it's important. A shortage is a shortage. We should try and make some estimation of what the marginal value of that shortage is and include that in pricing.”).

    50. Based upon information gathered during the price formation proceeding and as discussed above, the Commission preliminarily determines that prices that result from a failure to trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs may be unjust and unreasonable.

    3. Commission Proposal

    51. In order to remedy the potentially unjust and unreasonable rates caused by restrictions on shortage pricing, the Commission proposes, pursuant to section 206 of the FPA,76 to require that RTOs/ISOs trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs. The Commission seeks comments on this proposal.

    76 16 U.S.C. 824e.

    52. The shortage pricing reform in this NOPR should ensure that a resource is compensated based on a price that reflects the value of the service the resource provides. Implementing the shortage pricing reform proposed in this NOPR would ensure that resources have appropriate incentives to address energy or reserve shortages. The Commission expects that if shortage pricing is triggered for all shortage events, then resources are expected to take actions to ensure that they are available to respond to high prices. Resources taking actions to ensure their availability should, in turn, alleviate shortages and avoid shortage pricing during subsequent dispatch intervals.

    53. The shortage pricing reform proposed in this NOPR addresses the trigger for invoking shortage pricing, not the shortage price. While the Commission asked commenters to address the level of shortage pricing in the price formation proceeding,77 the Commission is not at this time proposing to change the price paid by any RTO/ISO when it triggers shortage pricing.

    77 Notice Inviting Post-Technical Workshop Comments, Docket No. AD14-14-000, at 9 (Jan. 16, 2015).

    54. The Commission expects that implementation of the shortage pricing reform proposed in this NOPR would not be as complex as implementing the proposed settlement interval reform. The Commission therefore proposes that the deadline for full implementation of the shortage pricing reform be effective within four months from the date of the compliance filing in response to a final rule in this proceeding. The Commission seeks comment on whether that proposed compliance and implementation timeline would provide sufficient time for RTOs/ISOs to develop and implement changes to technological systems and business processes in response to a final rule adopting the proposed shortage pricing reform.

    III. Compliance

    55. The Commission proposes to require that each RTO/ISO submit a compliance filing within four months of the effective date of the final Rule in this proceeding to demonstrate that it meets the proposed requirements set forth in the final Rule. While the Commission believes that four months is a reasonable deadline for RTOs/ISOs to submit compliance filings, the Commission understands that the proposed settlement interval reform could take more time to implement than the proposed shortage pricing reform due to the complexity of settlement systems. As discussed above, the Commission proposes (1) to allow twelve months from the date of the compliance filings for implementation of reforms to settlement systems to become effective and (2) to allow four months from the date of the compliance filings for implementation of reforms to shortage pricing to become effective.

    56. The Commission seeks comment on the proposed deadline for RTOs/ISOs to submit the compliance filing four months following the effective date of the final rule in this proceeding. Specifically, the Commission seeks comment on whether the proposed compliance timeline would allow sufficient time for RTOs/ISOs to develop and implement changes to technological systems and business processes in response to a final rule.

    57. To the extent that any RTO/ISO believes that it already complies with the settlement intervals and shortage pricing reforms proposed in this NOPR, the RTO/ISO would be required to demonstrate how it complies in the filing required four months after the effective date of the final rule in this proceeding. The proposed implementation deadlines would apply only to RTOs/ISOs to the extent they do not already comply with the reforms proposed in this NOPR.

    IV. Information Collection Statement

    58. The Paperwork Reduction Act (PRA) 78 requires each federal agency to seek and obtain Office of Management and Budget (OMB) approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability. OMB's regulations,79 in turn, require approval of certain information collection requirements imposed by agency rules. Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to these collection(s) of information unless the collection(s) of information display a valid OMB control number.

    78 44 U.S.C. 3501-3520.

    79 5 CFR 1320.

    59. The reforms proposed in this NOPR would amend the Commission's regulations to improve the operation of organized wholesale electric power markets operated by RTOs and ISOs. The Commission proposes to require that each RTO/ISO (1) settle energy transactions in its real-time markets at the same time interval it dispatches energy and settle operating reserves transactions in its real-time markets at the same time interval it prices operating reserves and (2) trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs. The reforms proposed in this NOPR would require one-time filings of tariffs with the Commission and potential software and hardware upgrades to implement the reforms proposed in this NOPR. The Commission anticipates the reforms proposed in this NOPR, once implemented, would not significantly change currently existing burdens on an ongoing basis. With regard to those RTOs and ISOs that believe that they already comply with the reforms proposed in this NOPR, they could demonstrate their compliance in their compliance in the filing required four months after the effective date of the final rule in this proceeding. The Commission will submit the proposed reporting requirements to OMB for its review and approval under section 3507(d) of the Paperwork Reduction Act.80

    80 44 U.S.C. 3507(d).

    60. While the Commission expects the adoption of the reforms proposed in this NOPR to provide significant benefits, the Commission understands that implementation and modifying settlement systems can be a complex and costly endeavor. The Commission solicits comments on the accuracy of provided burden and cost estimates and any suggested methods for minimizing the respondents' burdens, including the use of automated information techniques. Specifically, the Commission seeks detailed comments on the potential cost and time necessary to implement aspects of the reforms proposed in this NOPR, including (1) hardware, software, and business processes changes; (2) increased data storage and validation; (3) changes to market participant metering or other equipment; and (4) processes for RTOs and ISOs to vet proposed changes amongst their stakeholders.

    61. The Commission also seeks comment on whether changes in settlement systems would disrupt existing contractual relationships and, if so, what burdens this might impose and how the Commission should address any potential issues resulting from such disruption.

    Burden Estimate and Information Collection Costs: The Commission believes that the burden estimates below are representative of the average burden on respondents, including necessary communications with stakeholders. The estimated burden and cost 81 for the requirements contained in this NOPR follow.82

    81 The estimated hourly cost (salary plus benefits) provided in this section are based on the salary figures for May 2014 posted by the Bureau of Labor Statistics for the Utilities sector (available at http://www.bls.gov/oes/current/naics2_22.htm#13-0000) and scaled to reflect benefits using the relative importance of employer costs in employee compensation from March 2015 (available at http://www.bls.gov/news.release/ecec.nr0.htm). The hourly estimates for salary plus benefits are:

    • Legal (code 23-0000), $129.87

    • Computer and mathematical (code 15-0000), $58.25

    • Information systems manager (code 11-3021), $94.55

    • IT security analyst (code 15-1122), $63.55

    • Auditing and accounting (code 13-2011), $51.11

    • Information and record clerk (code 43-4199), $37.50

    • Electrical Engineer (code 17-2071), $66.45

    • Economist (code 19-3011), $73.04

    • Computer and Information Systems Manager (code 11-3021), $94.55

    • Management (code 11-0000), $78.04

    The average hourly cost (salary plus benefits), weighting all of these skill sets evenly, is $74.69. The Commission rounds it to $75 per hour.

    82 The RTOs and ISOs (CAISO, ISO-NE., MISO, NYISO, PJM, and SPP) are required to comply with the reforms proposed in this NOPR. Three RTOs/ISOs (CAISO, NYISO, and SPP) currently align real-time energy settlement with their dispatch intervals and thus likely would be burdened less by that aspect of the reforms proposed in this NOPR.

    Data collection FERC 516
  • (modifications in NOPR in RM15-24-000)
  • Number of respondents Annual number of responses per
  • respondent
  • Total number of responses Average burden hours and cost per response Annual burden hours and total annual cost
    (1) (2) (1) × (2) = (3) (4) (3) × (4) = (5) Tariff filings one-time in Year 1: For RTOs/ISOs that currently align real-time settlement with dispatch intervals 3 RTOs or ISOs 1 3 80 hrs; $6,000 240 hrs;
  • $18,000.
  • Tariff filings one-time in Year 1: For RTOs/ISOs that do not currently align real-time settlement with dispatch intervals 3 RTOs or ISOs 1 3 160 hrs; $12,000 480 hrs;
  • $36,000.
  • Related Burden Hours for Implementation of changes each year in Years 1 & 2: For RTOs/ISOs that currently align real-time settlement with dispatch intervals 3 RTOs or ISOs 1 3 550 hrs;
  • $41,250
  • 1,650 hrs; $123,750.
    Related Burden Hours for Implementation of changes each year in Years 1 & 2: For RTOs/ISOs that do not currently align real-time settlement with dispatch intervals 3 RTOs or ISOs 1 3 1,600 hrs;
  • $120,000
  • 4,800 hrs; $360,000.

    Cost to Comply: The Commission has projected the total cost of compliance as follows: 83

    83 The costs for year 1 would consist of filing proposed tariff changes to the Commission within four months of a Final Rule plus initial implementation. The costs for year 2 would consist of any remaining implementation within the twelve months after the tariff filing is required.

    • Year 1: $18,000 + $36,000 + $123,750 + $360,000 = $537,750 • Year 2: $123,750 + $360,000 = $483,750

    After Year 2, the reforms proposed in this NOPR, once implemented, would not significantly change existing burdens on an ongoing basis.

    The Commission notes that these estimates do not include costs for software and hardware. Based on comment from industry, current estimates of overall costs for software and hardware could be as high as $20,000,000, for market participants and RTOs/ISOs combined, for each RTO/ISO that does not yet comply with the settlement interval reform proposed in this NOPR.84 As stated above, the Commission requests comment on the estimated costs for any additional software and hardware needed to comply with the reforms proposed in this NOPR.

    84 ISO-NE Comments, Docket No. AD14-14-000, at 23 (Mar. 6, 2015); GDF SUEZ Comments, Docket No. AD14-14-000, at 10 (Mar. 6, 2015).

    Title: FERC-516, Electric Rate Schedules and Tariff Filings.

    Action: Proposed revisions to an information collection.

    OMB Control No. 1902-0096.

    Respondents for this Rulemaking: RTOs and ISOs.

    Frequency of Information: One-time during years one and two.

    Necessity of Information: The Federal Energy Regulatory Commission proposes this rule to improve competitive wholesale electric markets in the RTO and ISO regions.

    Internal Review: The Commission has reviewed the proposed changes and has determined that such changes are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has specific, objective support for the burden estimates associated with the information collection requirements.

    62. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], email: [email protected], Phone: (202) 502-8663, fax: (202) 273-0873. Comments concerning the collection of information and the associated burden estimate(s), may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-0710, fax (202) 395-7285]. Due to security concerns, comments should be sent electronically to the following email address: [email protected] Comments submitted to OMB should include FERC-516 and OMB Control No. 1902-0096.

    V. Regulatory Flexibility Act Certification

    63. The Regulatory Flexibility Act of 1980 (RFA) 85 generally requires a description and analysis of rules that will have significant economic impact on a substantial number of small entities. The RFA does not mandate any particular outcome in a rulemaking. It only requires consideration of alternatives that are less burdensome to small entities and an agency explanation of why alternatives were rejected.

    85 5 U.S.C. 601-12.

    64. This rule would apply to six RTOs and ISOs (all of which are transmission organizations). The average estimated annual cost to each of the RTOs/ISOs is $89,625 in year 1, and $80,625 in Year 2. This one-time cost of filing and implementing these changes is significant.86 The RTOs and ISOs, however, are not small entities, as defined by the RFA.87 This is because the relevant threshold between small and large entities is 500 employees and the Commission understands that each RTO and ISO has more than 500 employees. Furthermore, because of their pivotal roles in wholesale electric power markets in their regions, none of the RTOs/ISOs meet the last criterion of the two-part RFA definition a small entity: “not dominant in its field of operation.” As a result, the Commission certifies that the reforms proposed in this NOPR would not have a significant economic impact on a substantial number of small entities. The Commission does not expect other entities to incur compliance costs as a result of the reforms proposed in this NOPR, but seeks detailed comments on whether other entities, such as load-serving entities, would incur costs as a result of the reforms proposed in this NOPR.

    86 This estimate does not include costs for hardware and software, for which the Commission requests comment.

    87 The RFA definition of “small entity” refers to the definition provided in the Small Business Act, which defines a “small business concern” as a business that is independently owned and operated and that is not dominant in its field of operation. The Small Business Administrations' regulations at 13 CFR 121.201 define the threshold for a small Electric Bulk Power Transmission and Control entity (NAICS code 221121) to be 500 employees. See 5 U.S.C. 601(3), citing to Section 3 of the Small Business Act, 15 U.S.C. 632.

    VI. Environmental Analysis

    65. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.88 The Commission concludes that neither an Environmental Assessment nor an Environmental Impact Statement is required for this NOPR under section 380.4(a)(15) of the Commission's regulations, which provides a categorical exemption for approval of actions under sections 205 and 206 of the FPA relating to the filing of schedules containing all rates and charges for the transmission or sale of electric energy subject to the Commission's jurisdiction, plus the classification, practices, contracts and regulations that affect rates, charges, classifications, and services.89

    88Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47,897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,783 (1987).

    89 18 CFR 380.4(a)(15).

    VII. Comment Procedures

    66. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due November 30, 2015. Comments must refer to Docket Nos. RM15-24-000, and must include the commenter's name, the organization they represent, if applicable, and their address.

    67. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    68. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    69. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    VIII. Document Availability

    70. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    71. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field.

    72. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities, Non-discriminatory open access transmission tariffs.

    By direction of the Commission.

    Dated: September 17, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend part 35, chapter I, title 18, Code of Federal Regulations, as follows:

    PART 35—FILING OF RATE SCHEDULES AND TARIFFS 1. The authority citation for part 35 continues to read as follows: Authority:

    16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.

    2. Amend § 35.28 by revising paragraph (g)(1)(iv)(A) and adding paragraph (g)(1)(vi) to read as follows:
    § 35.28 Non-discriminatory open access transmission tariff.

    (g) * * *

    (1) * * *

    (iv) * * *

    (A) Each Commission-approved independent system operator and regional transmission organization must modify its market rules to allow the market-clearing price during periods of operating reserve shortage to reach a level that rebalances supply and demand so as to maintain reliability while providing sufficient provisions for mitigating market power. Each Commission-approved independent system operator and regional transmission organization must trigger shortage pricing for any dispatch interval during which a shortage of energy or operating reserves occurs.

    (vi) Settlement intervals. Each Commission-approved independent system operator and regional transmission organization must settle energy transactions in its real-time markets at the same time interval it dispatches energy and must settle operating reserves transactions in its real-time markets at the same time interval it prices operating reserves.

    Note:

    The following appendix will not appear in the Code of Federal Regulations.

    APPENDIX A: List of Short Names/Acronyms of Commenters Short name/acronym Commenter APPA and NRECA American Public Power Association and National Rural Electric Cooperative Association. ANGA America's Natural Gas Alliance. Brookfield Brookfield Renewable Energy Marketing LP. CAISO California Independent System Operator Corporation. Calpine Calpine Corporation. Direct Energy Direct Energy Business Marketing, LLC, Direct Energy Business, LLC and affiliated companies. EEI Edison Electric Institute. EPSA Electric Power Supply Association. Entergy Nuclear Power Marketing Entergy Nuclear Power Marketing, LLC. Exelon Exelon Corporation. GDF SUEZ GDF SUEZ North America, Inc. ISO-NE ISO New England, Inc. MISO Midcontinent Independent System Operator, Inc. NYISO New York Independent System Operator, Inc. New York Transmission Owners New York Transmission Owners (Central Hudson Gas & Electric Corporation, Consolidated Edison Company of New York, Inc., Power Supply of Long Island, New York Power Authority, New York State Electric & Gas Corporation, Niagara Mohawk Power Corporation d/b/a National Grid, Orange and Rockland Utilities, Inc., and Rochester Gas and Electric Corporation). OMS Organization of MISO States. PG&E Pacific Gas and Electric Company. PJM PJM Interconnection, L.L.C. PJM Utilities Coalition PJM Utilities Coalition (American Electric Power Service Corporation, the Dayton Power and Light Company, FirstEnergy Service Company, Buckeye Power, Inc., and East Kentucky Power Cooperative). Potomac Economics Potomac Economics, Ltd. PSEG Companies PSEG Companies (Public Service Electric and Gas Company, PSEG Power LLC and PSEG Energy Resources & Trade LLC). SCE Southern California Edison Company. SPP Southwest Power Pool, Inc. TAPS Transmission Access Policy Study Group. Wartsila Wartsila North America, Inc. Wisconsin Electric Wisconsin Electric Power Company. Xcel Xcel Energy Services Inc.
    [FR Doc. 2015-24283 Filed 9-28-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 39 [Docket No. RM15-25-000] Availability of Certain North American Electric Reliability Corporation Databases to the Commission AGENCY:

    Federal Energy Regulatory Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) proposes to amend its regulations to require the North American Electric Reliability Corporation (NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to certain databases compiled and maintained by NERC. The Commission's proposal applies to the following NERC databases: The Transmission Availability Data System, the Generating Availability Data System, and the protection system misoperations database. Access to these databases, which will be limited to data regarding U.S. facilities, will provide the Commission with information necessary to determine the need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments.

    DATES:

    Comments are due November 30, 2015.

    ADDRESSES:

    Comments, identified by docket number, may be filed in the following ways:

    • Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

    • Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Raymond Orocco-John (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6593, [email protected]. Matthew Vlissides (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-8408, [email protected]. SUPPLEMENTARY INFORMATION:

    1. The Commission proposes to amend its regulations, pursuant to section 215 of the Federal Power Act (FPA), to require the North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO), to provide the Commission, and Commission staff, with access (i.e., view and download data), on a non-public and ongoing basis, to certain databases compiled and maintained by NERC. The Commission's proposal applies to the following three NERC databases: (1) The Transmission Availability Data System (TADS), (2) the Generating Availability Data System (GADS), and (3) the protection system misoperations database. Access to these databases, which will be limited to data regarding U.S. facilities, will provide the Commission with information necessary for the Commission to determine the need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments.

    I. Background A. Section 215 and Order No. 672

    1. 2. Section 215 of the FPA requires the ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Reliability Standards may be enforced by NERC, subject to Commission oversight, or by the Commission independently.1 In addition, section 215(g) of the FPA requires the ERO to conduct periodic assessments of the reliability and adequacy of the Bulk-Power System in North America.2 Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,3 and subsequently certified NERC.4

    1 16 U.S.C. 824o(e).

    2Id. 824o(g).

    3Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, order on reh'g, Order No. 672-A, FERC Stats. & Regs. ¶ 31,212 (2006).

    4North American Electric Reliability Corp., 116 FERC ¶ 61,062, order on reh'g and compliance, 117 FERC ¶ 61,126 (2006), aff'd sub nom. Alcoa, Inc. v. FERC, 564 F.3d 1342 (D.C. Cir. 2009).

    3. Section 39.2(d) of the Commission's regulations requires NERC and each Regional Entity to “provide the Commission such information as is necessary to implement section 215 of the Federal Power Act.” 5 Section 39.2(d) of the Commission's regulations also requires each user, owner and operator of the Bulk-Power System within the United States (other than Alaska and Hawaii) to provide the Commission, NERC and each applicable Regional Entity with “such information as is necessary to implement section 215 of the Federal Power Act as determined by the Commission and set out in the Rules of the Electric Reliability Organization and each applicable Regional Entity.” 6

    5 18 CFR 39.2(d).

    6Id.

    4. The Commission promulgated section 39.2(d) of its regulations in Order No. 672.7 The Commission explained in Order No. 672 that:

    7 Order No. 672, FERC Stats. & Regs. ¶ 31,204 at P 114.

    The Commission agrees . . . that, to fulfill its obligations under this Final Rule, the ERO or a Regional Entity will need access to certain data from users, owners and operators of the Bulk-Power System. Further, the Commission will need access to such information as is necessary to fulfill its oversight and enforcement roles under the statute.8

    8Id.

    B. NERC Databases

    5. NERC conducts ongoing data collections from registered entities to populate databases for transmission outages through TADS, generation outages through GADS, and protection system misoperations through NERC's protection system misoperations database. Each of these NERC databases is discussed below.

    1. TADS Database

    6. NERC began collecting TADS data on a mandatory basis in 2007 by issuing a Phase I data request pursuant to section 1600 of the NERC Rules of Procedure.9 The request required that, beginning in January 2008, applicable entities provide certain data for the TADS database based on a common template.10 In 2010, NERC began collecting Phase II TADS data, which include additional fields of information on transmission outages.11

    9See generally NERC, Summary of Phase I TADS Data Collection (November 9, 2007), available at http://www.nerc.com/pa/RAPA/tads/TADSTF%20Archives%20DL/TADS_Data_Request_Summary.pdf.

    10See generally NERC, Transmission Availability Data System (TADS) Data Reporting Instruction Manual (November 20, 2007), available at http://www.nerc.com/comm/PC/Transmission%20Availability%20Data%20System%20Working%20Grou/TADSTF%20Archives/Data_Reporting_Instr_Manual_11_20_07.pdf.

    11See generally NERC, Transmission Availability Data System Phase II Final Report (September 11, 2008), available at http://www.nerc.com/pa/RAPA/tads/TransmissionAvailabilityDataSyatemRF/TADS_Phase_II_Final_Report_091108.pdf.

    7. Currently, the TADS database compiles transmission outage data in a common format for: (1) Bulk electric system AC circuits (overhead and underground); (2) transmission transformers (except generator step-up units); (3) bulk electric system AC/DC back-to-back converters; and (4) bulk electric system DC circuits.12 The TADS data collection template includes the following information fields: (1) Type of facilities, (2) outage start time and duration, (3) event type, (4) initiating cause code, and (5) sustained cause code (for sustained outages).13 “Cause codes” for common causes of transmission outages include: (1) Lightning, (2) fire, (3) vandalism, (4) failed equipment (with multiple sub-listings), (5) vegetation, and (6) “unknown.” 14 There were 10,787 TADS events between 2012 and 2014.15

    12See NERC TADS Home Page, available athttp://www.nerc.com/pa/RAPA/tads/Pages/default.aspx.

    13See Transmission Availability Data System (TADS) Data Reporting Instruction Manual (August 1, 2014), available at http://www.nerc.com/pa/RAPA/tads/Documents/2015_TADS_DRI.pdf.

    14See Transmission Availability Data System Definitions (August 1, 2014), available at http://www.nerc.com/pa/RAPA/tads/Documents/2015_TADS_Appendix_7.pdf.

    15See, e.g., NERC, State of Reliability 2015, Appendix A (Statistical Analysis for Risk Issue Identification and Transmission Outage Severity Analysis) at 86 (May 2015), available at http://www.nerc.com/pa/RAPA/PA/Performance%20Analysis%20DL/2015%20State%20of%20Reliability.pdf.

    8. NERC uses TADS data to develop transmission metrics to analyze outage frequency, duration, causes, and other factors related to transmission outages.16 NERC also provides individual transmission owners with TADS metrics for their facilities.17 NERC issues an annual public report based on TADS data that shows aggregate metrics for each NERC Region, with the underlying data typically accorded confidential treatment.18

    16See NERC TADS Home Page.

    17Id.

    18Id.

    2. GADS Database

    9. The collection of GADS data has been mandatory since 2012, pursuant to a data request issued in accordance with section 1600 of the NERC Rules of Procedure.19 The GADS database collects, records, and retrieves operating information on power plant availability, including event, performance, and design data.20 GADS data are used to support equipment reliability and availability analyses, as well as benchmarking studies.21

    19See NERC, Generating Availability Data System Mandatory Reporting of Conventional Generation Performance Data at 2 (July 2011), available at http://www.nerc.com/pa/RAPA/gads/MandatoryGADS/Revised_Final_Draft_GADSTF_Recommendation_Report.pdf; see also NERC GADS Home Page, available at http://www.nerc.com/pa/RAPA/gads/Pages/default.aspx.

    20See NERC GADS Home Page.

    21Id.

    10. Currently, GADS collects outage data pertaining to ten types of conventional generating units with capacity of 20 MW and larger, including: (1) Fossil steam including fluidized bed design; (2) nuclear; (3) gas turbines/jet engines; (4) internal combustion engines (diesel engines); (5) hydro units/pumped storage; (6) combined cycle blocks and their related components; (7) cogeneration blocks and their related components; (8) multi-boiler/multi-turbine units; (9) geothermal units; and (10) other miscellaneous conventional generating units (e.g., biomass, landfill gases).22 The GADS data collection template includes the following design, event, and performance information: (1) Design records, (2) event records and (3) performance records.23 Design records refer to the characteristics of each unit such as GADS utility code, GADS unit code, NERC Regional Entity where the unit is located, name of the unit, commercial operating date, and type of generating unit (fossil, combined cycle, etc.).24 Event records include information about when and to what extent the generating unit could not generate power.25 Performance records refer to monthly generation, unit-attempted starts, actual starts, summary event outage information, and fuels.26 NERC has developed “cause codes” for the identification of common causes of unit outages based on the type of generating unit.27 For example, the cause codes section for fossil steam units includes codes for the boiler, steam turbine, generator, balance of plant, pollution control equipment, external, regulatory, safety and environmental, personnel errors, and performance testing.28 For 2011-2013, the GADS database contains data from more than 5,000 units.29

    22 Generating Availability Data System Mandatory Reporting of Conventional Generation Performance Data at 15.

    23Id., Appendix V (Rules of Procedure Section 1600 Justification) at 35.

    24Id.

    25Id.

    26Id.

    27 NERC, Generating Availability Data System Data Reporting Instructions (January1, 2015), Appendix B (Index to System/Component Cause Codes) at 1, available at http://www.nerc.com/pa/RAPA/gads/DataReportingInstructions/Appendix_B1_Fossil_Steam_Unit_Cause_Codes.pdf.

    28Id.

    29 State of Reliability 2015, Appendix B (Analysis of Generation Data) at 107.

    11. NERC uses GADS data to measure generation reliability and publishes aggregate performance metrics for each NERC Region in publicly available annual state of reliability and reliability assessment reports.30 The underlying data are typically accorded confidential treatment.

    30See, e.g., id., Appendix B (Analysis of Generation Data).

    3. Protection System Misoperations Database

    12. Protection system misoperations data have been reported by transmission owners, generator owners and distribution providers on a mandatory basis since 2011 pursuant to Reliability Standard PRC-004.31 Following implementation of Reliability Standard PRC-004-4, the obligation to report misoperation data will be made mandatory through a data request pursuant to section 1600 of the NERC Rules of Procedure.32

    31 The Commission approved Reliability Standard PRC-004-1 (Analysis and Reporting of Transmission Protection System Misoperations) in Order No. 693. Mandatory Reliability Standards for the Bulk-Power System, Order No. 693, FERC Stats. & Regs. ¶ 31,242, at PP 1467-1469, order on reh'g, Order No. 693-A, 120 FERC ¶ 61,053 (2007). The Commission subsequently approved the following revisions and interpretations to Reliability Standard PRC-004, which was renamed Analysis and Mitigation of Transmission and Generation Protection System Misoperations: Reliability Standards PRC-004-1a, PRC-004-2, PRC-004-2a, PRC-004-2.1a, PRC-004-2.1(i)a, PRC-004-3, and PRC-004-4. See North American Electric Reliability Corporation, 136 FERC ¶ 61,208 (2011) (approving interpretation resulting in Reliability Standard PRC-004-1a and Reliability Standard PRC-004-2a); North American Electric Reliability Corp., 134 FERC ¶ 61,015 (2011) (approving Reliability Standard PRC-004-2); Generator Requirements at the Transmission Interface, Order No. 785, 144 FERC ¶ 61,221 (2012) (approving Reliability Standard PRC-004-2.1a); North American Electric Reliability Corp., 151 FERC ¶ 61,129 (2015) (approving Reliability Standard PRC-004-3); North American Electric Reliability Corporation, 151 FERC ¶ 61,186 (2015) (approving Reliability Standards PRC-004-2.1(i)a and PRC-004-4).

    32See generally NERC, Request for Data or Information Protection System Misoperation Data Collection (August 14, 2014), available at http://www.nerc.com/pa/RAPA/ProctectionSystemMisoperations/PRC-004-3%20Section%201600%20Data%20Request_20140729.pdf. Reliability Standard PRC-004-4 will become enforceable on July 1, 2016.

    13. Currently, the protection system misoperations database collects more than 20 fields for a reportable misoperation event, including: (1) Misoperation date; (2) event description; (3) protection systems/components that misoperated; (4) equipment removed from service (permanently or temporarily) as the result of the misoperation; (5) misoperation category; and (6) cause(s) of misoperation.33 For 2014, the protection system misoperations database contains information on approximately 2,000 misoperation events.34

    33Id. at 13-14; see also NERC, Protection System Misoperations Home Page, available at http://www.nerc.com/pa/RAPA/ri/Pages/ProtectionSystemMisoperations.aspx.

    34 State of Reliability 2015 at 47.

    14. Protection system misoperations have exacerbated the severity of most cascading power outages, having played a significant role in the August 14, 2003 Northeast blackout, for example.35 NERC uses protection system misoperations data to assess protection system performance and trends in protection system performance that may negatively impact reliability.36 NERC publishes aggregate misoperation information for each NERC Region in annual public state of reliability reports, with the underlying data typically being accorded confidential treatment.37

    35See Request for Data or Information Protection System Misoperation Data Collection at 5.

    36See id. at 14.

    37See, e.g., State of Reliability 2015 at 45-48.

    II. Discussion

    15. The Commission proposes to amend the Commission's regulations to require NERC to provide the Commission, and Commission staff, with access (i.e., view and download data), on an ongoing and non-public basis, to the TADS, GADS, and protection system misoperations databases. As discussed below, the Commission believes that access to these three NERC databases, which will be limited to data regarding U.S. facilities, is necessary to carry out the Commission's obligations under section 215 of the FPA.

    16. Under section 215 of the FPA, the Commission has jurisdiction over, and is responsible for oversight of, the activities and functions of the ERO and Regional Entities in the United States.38 The development and maintenance of NERC databases such as TADS, GADS, and protection system misoperations are section 215 jurisdictional activities.39 As explained in Order No. 672, access to relevant information, such as the information sought through this proposal, allows the Commission to fulfill its statutory obligations under section 215 of the FPA.40 The Commission's proposed regulation would require the three NERC databases (i.e., the TADS, GADS, and protection system misoperations databases) to be made available to the Commission on a non-public and ongoing basis. This proposal comports with our authority because, as discussed below, access to the NERC databases is necessary to implement section 215. Furthermore, the Commission's proposal is consistent with section 39.2(d) of the Commission's regulations because that provision already requires the ERO and Regional Entities to “provide the Commission such information as is necessary to implement section 215 of the Federal Power Act.” 41

    38 16 U.S.C. 824o(b) (“The Commission shall have jurisdiction, within the United States, over the ERO certified by the Commission . . . any regional entities, and all users, owners and operators of the bulk-power-system . . . for purposes of approving reliability standards established under this section and enforcing compliance with this section.”).

    39See North American Electric Reliability Corp., 143 FERC ¶ 61,052, at P 41 (2013) (addressing statutory funding for NERC's periodic assessments and monitoring of the Bulk-Power System); see also North American Electric Reliability Corp., 149 FERC ¶ 61,028, at P 14 (2014) (approving FPA section 215 funding for NERC Reliability Assessment and Performance Analysis program (RAPA) as part of NERC's 2015 business plan and budget filing); see also NERC, Petition for Approval of 2015 Business Plan and Budget, Docket No. RR14-6-000, at 50-51 (filed Aug. 22, 2014) (identifying TADS, GADS and protection system misoperations as major activities of NERC's RAPA program).

    40 Order No. 672, FERC Stats. & Regs. ¶ 31,204 at P 114. Cf. North American Electric Reliability Corp., 120 FERC ¶ 61,239, at P 12 (2007) (directing NERC to provide the Commission with advance copies of “NERC alerts” on an informational basis to “allow the Commission to monitor for potential inconsistencies with the Reliability Standards and may inform the Commission where modifications to existing Reliability Standards or new Reliability Standards may be necessary”).

    41 18 CFR 39.2(d).

    17. Access to data collected by NERC in the TADS, GADS, and protection system misoperations databases regarding U.S. facilities is necessary to carry out the Commission's statutory authority: (1) To evaluate the need to direct new or modified Reliability Standards under section 215(d)(5) of the FPA; and (2) to better understand NERC's periodic assessments and reports, including those that may be requested by the Commission, regarding the reliability and adequacy of the Bulk-Power System under section 215(g) of the FPA.

    18. First, the proposed access would inform the Commission more quickly, directly and comprehensively about reliability trends or reliability gaps that might require the Commission to direct the ERO to develop new or modified Reliability Standards. Pursuant to section 215(d) of the FPA, the Commission has the responsibility of acting on proposed Reliability Standards developed by the ERO. In addition, as set forth in section 215(d)(5) of the FPA, the Commission has authority to direct the ERO “to submit to the Commission a proposed reliability standard or modification to a reliability standard that addresses a specific matter if the Commission considers such a new or modified reliability standards appropriate to carry out [section 215].” 42 Therefore, with respect to the development of new Reliability Standards or modification of existing Reliability Standards, section 215(d) of the FPA tasks both the Commission and the ERO (i.e., NERC) with the responsibility to monitor reliability trends or reliability gaps that might warrant the development or modification of a Reliability Standard. As discussed below, the data contained in the TADS, GADS, and protection systems misoperations databases provide insights regarding reliability performance that bear on whether existing Reliability Standards are effective; whether they require modification; or whether new Reliability Standards should be developed. However, currently the Commission does not have access to these databases, which are maintained by NERC to support its Reliability Standards work pursuant to section 215(d), and we find it appropriate that the Commission also have access to them to support the Commission's assessment of the effectiveness of existing Reliability Standards.

    42 16 U.S.C. 824o(d)(5).

    19. The TADS, GADS, and protection system misoperations databases include important information regarding the need for new or modified Reliability Standards. For example, in describing the importance of mandatory TADS data collection, NERC stated that:

    Whether a new standard is needed or whether an existing standard needs to be modified, sound data is needed for this purpose. TADS data is intended to provide a basis for standards.43

    43 Summary of Phase I TADS Data Collection at 1.

    Similarly, in justifying the need for mandatory GADS data reporting, NERC stated that GADS data “is used to calculate important performance statistics and supports bulk power trend analysis by providing information on forced outages, maintenance outages, planned outages, and deratings . . . [the] GADS database is vital to support NERC in its assessment of bulk power system reliability.” 44 With respect to protection system misoperations data, NERC described that data as “providing several benefits to [bulk electric system] reliability and support[ing] NERC's mission of ensuring the reliability of the [Bulk-Power System] in North America.” 45 Among other things, NERC stated that protection system misoperations data is used to “[i]dentify trends in Protection System performance that negatively impact reliability.” 46 Accordingly, just as the information in these databases supports NERC's Reliability Standards work under section 215(d) of the FPA, we find that the Commission's access to these databases will further our work under section 215(d)(5) of the FPA to identify reliability issues that might necessitate the development or modification of Reliability Standards.

    44 Generating Availability Data System Mandatory Reporting of Conventional Generation Performance Data at 1.

    45 Request for Data or Information Protection System Misoperation Data Collection at 5.

    46Id. at 4.

    20. Second, access to the TADS, GADS, and protection system misoperations databases will assist the Commission with its understanding of the reliability and adequacy assessments periodically submitted by NERC pursuant to section 215(g) of the FPA, as well as provide the Commission with data that could support requests by the Commission for additional assessments or reports from NERC under that section. The periodic reports, such as the annual state of reliability reports, currently submitted by NERC draw heavily from these databases and provide an overview of reliability issues and trends identified through the analysis of those databases. While the aggregated TADS, GADS, and protection system misoperations data provided in NERC's periodic reports afford the Commission some insight into the reliability and adequacy trends identified by NERC, we believe that having direct access to the underlying data will assist the Commission in its understanding of the periodic reports, thereby helping the Commission to monitor causes of outages and detect emerging reliability issues.

    21. The Commission proposes to locate the proposed requirement within section 39.11 of the Commission's regulations, which governs the preparation and submission of reliability reports.47 We propose to add a new paragraph (c) that establishes a formal requirement that the ERO provide the Commission with access, on a non-public and ongoing basis, to the ERO's TADS, GADS, and protection system misoperations databases, or any successor databases thereto.

    47 18 CFR 39.11.

    22. We also recognize that the Commission's proposal might raise confidentiality issues regarding certain of the data contained in these databases. Should the Commission collect an entity's confidential information, the Commission will take appropriate steps, as provided for in our governing statutes and regulations,48 in handling such information.

    48See, e.g., 5 U.S.C. 552; 18 CFR 388.112, 18 CFR 388.113.

    23. The Commission seeks comment from NERC and other interested entities on this proposal. Comments are due 60 days following publication of this notice of proposed rulemaking in the Federal Register.

    III. Information Collection Statement

    24. The Paperwork Reduction Act (PRA) 49 requires each federal agency to seek and obtain Office of Management and Budget (OMB) approval before undertaking a collection of information directed to ten or more persons, or contained in a rule of general applicability. The OMB regulations require the approval of certain information collection requirements imposed by agency rules.50 Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of an agency rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

    49 44 U.S.C. 3501-3520.

    50See 5 CFR 1320.

    25. The Commission is submitting these reporting requirements to OMB for its review and approval under section 3507(d) of the PRA. Comments are solicited on the Commission's need for this information, the estimated burden and cost imposed on the ERO of providing the Commission with ongoing access to the three databases, whether the information will have practical utility, ways to enhance the quality, utility, and clarity of the information to be accessed, and any suggested methods for minimizing the respondent's burden.

    26. The Commission's proposal would make TADS, GADS, and protection system misoperations data, currently collected by the ERO, available to the Commission, and its staff, on a non-public and ongoing basis. The proposal would not require the ERO to collect new information, compile information into any kind of report, or reformulate the raw data. The Commission also anticipates that it could be relatively straight-forward for the ERO to provide the Commission, and Commission staff, with access to TADS, GADS and misoperations data. Various entities currently have access to these data via an existing web interface. Providing the Commission, and Commission staff, with access may be as simple as creating log-on credentials for the Web interface. Accordingly, the Commission estimates that the one-time burden associated with compliance with this proposed rule is de minimis and is limited to the ERO reviewing the Commission's proposed regulation and providing Commission with access to the existing TADS, GADS, and protection system misoperations databases.

    27. The requirements for the ERO to provide data to the Commission are included in the existing FERC-725, Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards (OMB Control No. 1902-0225). FERC-725 includes information used by the Commission to implement the statutory provisions of section 215 of the FPA. FERC-725 includes the burden, reporting and recordkeeping requirements associated with: (a) Self Assessment and ERO Application, (b) Reliability Assessments, (c) Reliability Standards Development, (d) Reliability Compliance, (e) Stakeholder Survey, and (f) Other Reporting. This notice of proposed rulemaking will be submitted to OMB for review under the PRA.

    28. Internal review: The Commission has reviewed the proposed regulation and has determined that the proposed regulation is necessary to ensure the reliability and integrity of the Nation's Bulk-Power System.

    29. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email: [email protected], Phone: (202) 502-8663, fax: (202) 273-0873]. Comments on the requirements of this rule may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at [email protected]. Please reference OMB Control No. 1902-0225 and FERC-725 in your submission.

    IV. Environmental Analysis

    30. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.51 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.52 The actions here fall within this categorical exclusion in the Commission's regulations.

    51Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,783 (1987).

    52 18 CFR 380.4(a)(2)(ii).

    V. Regulatory Flexibility Act

    31. The Regulatory Flexibility Act of 1980 (RFA) 53 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) revised its size standard (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees, including affiliates.54

    53 5 U.S.C. 601-612.

    54 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77,343 (Dec. 23, 2013).

    32. The Commission proposes to amend the Commission's regulations to require only the ERO (i.e., NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to the existing TADS, GADS, and protections system misoperations databases. As discussed above, we estimate that the costs to the ERO associated with the Commission's proposal will be de minimis. Accordingly, the Commission certifies that this proposal will not have a significant economic impact on a substantial number of small entities.

    VI. Comment Procedures

    33. The Commission invites interested persons to submit comments on the matters and issues proposed in this document to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due November 30, 2015. Comments must refer to Docket No. RM15-25-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.

    34. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    35. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    36. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    VII. Document Availability

    37. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    38. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    39. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202)502-8659. Email the Public Reference Room at [email protected].

    List of subjects in 18 CFR Part 39

    Electric power, and reporting and recordkeeping requirements.

    By direction of the Commission. Commissioner LaFleur is concurring with a separate statement attached.

    Dated: September 17, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend Chapter I, Title 18, Part 39 of the Code of Federal Regulations, as follows:

    PART 39—RULES CONCERNING CERTIFICATION OF THE ELECTRIC RELIABILITY ORGANIZATION; AND PROCEDURES FOR THE ESTABLISHMENT, APPROVAL, AND ENFORCEMENT OF ELECTRIC RELIABILITY STANDARDS 1. The authority citation for part 39 continues to read as follows: Authority:

    16 U.S.C. 824o.

    2. Amend § 39.11 by adding paragraph (c) as follows:
    § 39.11 Reliability reports.

    (c) The Electric Reliability Organization shall make available to the Commission, on a non-public and ongoing basis, access to the Transmission Availability Data System, Generating Availability Data System, and protection system misoperations databases, or any successor databases thereto.

    Note:

    The following text will not appear in the Code of Federal Regulations.

    Availability of Certain North American Electric Reliability Corporation Databases to the Commission
    (Issued September 17, 2015)

    LaFLEUR, Commissioner, concurring: Today's order proposes to revise the Commission's regulations to provide the Commission and its staff with access, on a non-public and ongoing basis, to three databases maintained by the North American Electric Reliability Corporation (NERC): (1) The Transmission Availability Data System (TADS), (2) the Generating Availability Data System (GADS), and (3) the protection system misoperations database. As explained in the order, the Commission concludes that access to these databases would support its work under section 215(d)(5) of the Federal Power Act (FPA) to monitor reliability trends and issues that may warrant the development of new or modified reliability standards.

    On rare occasions, the Commission has exercised its authority to direct NERC to develop new standards to address reliability risks not covered in existing standards, such as geomagnetic disturbances and physical security. While I do not expect the Commission to frequently invoke that authority going forward, I agree that the information in these databases would assist the Commission with its responsibilities under section 215(d)(5), as well as its understanding of NERC's assessments under section 215(g). Access to these databases could therefore support the Commission's oversight of several steps of the reliability cycle, including event analysis, establishment of metrics, setting reliability priorities, and improving the standards development and review process.

    I recognize, however, that under section 215 of the FPA, NERC and the Commission have a unique relationship, since Congress vested a significant amount of authority over the standards process in the Electric Reliability Organization (i.e., NERC) and clearly prescribed the Commission's oversight role. It is important that we recognize the distinction between that oversight role and NERC's primary responsibility to monitor reliability issues and propose standards to address them. Ultimately, I believe our efforts to sustain and improve the reliability of the bulk electric system are furthered by mutual trust and shared priorities between the Commission and NERC.

    I understand that today's proposal might be controversial within the NERC community. I therefore welcome comment on the proposal, including any potential issues or concerns not identified in the NOPR, to provide a full record for the Commission to consider in deciding whether to proceed to a final rule.

    Accordingly, I respectfully concur.

    Cheryl A. LaFleur Commissioner [FR Doc. 2015-24282 Filed 9-28-15; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0581; FRL-9934-69-Region 7] Approval and Promulgation of Air Quality Implementation Plans; Missouri; Regional Haze Five-Year Progress Report State Implementation Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing approval of a revision to the Missouri State Implementation Plan (SIP) submitted by the State of Missouri on August 5, 2014. Missouri's SIP submission (“progress report SIP”) addresses requirements of the Clean Air Act (CAA or Act) and EPA's rules that require states to submit periodic reports describing progress toward reasonable progress goals (RPGs) established for regional haze and a determination of the adequacy of the state's existing SIP addressing regional haze (“regional haze SIP”). EPA is proposing approval of Missouri's progress report SIP submission on the basis that it addresses the progress report and adequacy determination requirements for the first implementation period for regional haze.

    DATES:

    Comments must be received on or before October 29, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0581 by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Mail or Hand Delivery or Courier: Stephen Krabbe, Air Planning and Development Branch, Air and Waste Management Division, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219.

    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2015-0581. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. 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 electronic 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 at the Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Stephen Krabbe, Air Planning and Development Branch, Air and Waste Management Division, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7483 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

    I. What is the background for EPA's Proposed action? II. What are the requirements for the regional haze progress report SIPs and adequacy determinations? A. Regional Haze Progress Report SIP B. Adequacy Determination of the Current Regional Haze SIP III. What is EPA's analysis of Missouri's progress report SIP and adequacy determination? A. Regional Haze Progress Report SIPs 1. 40 CFR 51.308(g)(1) 2. 40 CFR 51.308(g)(2) 3. 40 CFR 51.308(g)(3) 4. 40 CFR 51.308(g)(4) 5. 40 CFR 51.308(g)(5) 6. 40 CFR 51.308(g)(6) 7. 40 CFR 51.308(g)(7) B. Determination of Adequacy of Existing Regional Haze Plan IV. Impact of CAIR and CSAPR on Missouri's Progress Report V. What action is EPA proposing to take? I. What is the background for EPA's Proposed action?

    States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress toward the RPGs for each mandatory Class I Federal area within the state and in each mandatory Class I Federal area outside the state which may be affected by emissions from within the state. 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of the state's existing regional haze SIP. 40 CFR 51.308(h). The first progress report SIP is due five years after submittal of the initial regional haze SIP. The Missouri Department of Natural Resources (MDNR) submitted the state's first regional haze SIP on August 5, 2009, and supplemented on January 30, 2012, in accordance with 40 CFR 51.308(b).1

    1 On June 26, 2012, EPA finalized a limited approval of Missouri's August 5, 2009, regional haze SIP to address the first implementation period for regional haze (77 FR 38007). In a separate action, published on June 7, 2012 (77 FR 33642), EPA finalized a limited disapproval of the Missouri regional haze SIP because of the State's reliance on the Clean Air Interstate Rule to meet certain regional haze requirements, which EPA replaced in August 2011 with the Cross-State Air Pollution Rule (CSAPR) (76 FR 48208 (Aug. 8, 2011)). In the aforementioned June 7, 2012, action, EPA finalized a Federal Implementation Plan (FIP) for Missouri to replace the State's reliance on CAIR with reliance on CSAPR. Following these EPA actions, the D.C.h Circuit issued a decision in EME Homer City Generation, L.P. v. EPA (“EME Homer City”), 696 F. 3d 7 (D.C. Cir. 2012), vacating CSAPR and keeping CAIR in place pending the promulgation of a valid replacement rule. On April 29, 2014, the U.S. Supreme Court reversed the D.C. Circuit opinion vacating CSAPR, and remanded the case for further proceedings. EME Homer City, 572 U.S. 134 S. Ct. 1584. In the interim, CAIR remained in place. On October 23, 2014, the D.C. Circuit granted EPA's motion to lift the stay on CSAPR. Order of October 23, 2014, in EME Homer City, D.C. Cir. No. 11-1302. EPA issued an interim final rule to clarify how EPA will implement CSAPR consistent with the D.C. Circuit's order. 79 FR 71663 (December 3, 2014) (interim final rulemaking). Subsequent to the interim final rulemaking, EPA began implementation of CSAPR on January 1, 2015. Section IV of this notice addresses the impact of CAIR and CSAPR on Missouri's progress toward RPGs for this five year progress report SIP.

    On February 14, 2014, MDNR provided to the Federal Land Managers a revision to Missouri's SIP reporting on progress made during the first implementation period toward RPGs for Class I areas in the state and Class I areas outside the state that are affected by Missouri sources. Missouri has two Class I areas, Mingo National Wildlife Refuge (Mingo) and Hercules Glades Wilderness Area (Hercules Glades). Missouri also hosts an additional Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring site, located at El Dorado Springs.2 Notification was published on MDNR's Air Pollution Control Program Web site on April 28, 2014. A public hearing was held on held at the St. Louis Regional Office on Thursday, May 29, 2014.

    2 The El Dorado Springs IMPROVE monitoring site is a Protocol monitoring site that is maintained by MDNR to also measure visibility impairment in Missouri, but it is not located in a Federal Class I area. It was established to aid in determining impacts to portions of the country where no Class I areas exist.

    On August 5, 2014, MDNR submitted the five year progress report SIP to EPA. This progress report SIP and accompanying cover letter also included a determination that the state's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018. EPA is proposing to approve Missouri's progress report SIP on the basis that it satisfies the requirements of 40 CFR 51.308(g) and 51.308(h).

    II. What are the requirements for the regional haze progress report SIPs and adequacy determinations? A. Regional Haze Progress Report SIP

    Under 40 CFR 51.308(g), states must submit a regional haze progress report as a SIP revision every five years and must address, at a minimum, the seven elements found in 40 CFR 51.308(g). As described in further detail in section III below, 40 CFR 51.308(g) requires a description of the status of measures in the approved regional haze SIP; a summary of emissions reductions achieved; an assessment of visibility conditions for each Class I area in the state; an analysis of changes in emissions from sources and activities within the state; an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded progress in Class I areas impacted by the state's sources; an assessment of the sufficiency of the approved regional haze SIP; and a review of the state's visibility monitoring strategy.

    B. Adequacy Determinations of the Current Regional Haze SIP

    Under 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. As described in further detail in section III below, 40 CFR 51.308(h) requires states to either: (1) Submit a negative declaration to EPA that no further substantive revision to the state's existing regional haze SIP is needed; (2) provide notification to EPA (and other states(s) that participated in the regional planning process) if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in other state(s) that participated in the regional planning process, and collaborate with these other state(s) to develop additional strategies to address deficiencies; (3) provide notification with supporting information to EPA if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in another country; or (4) revise its regional haze SIP to address deficiencies within one year if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress in one or more Class I areas due to emissions from sources within the state.

    III. What is EPA's analysis of Missouri's regional haze progress report and adequacy determination?

    On August 5, 2014, MDNR submitted a revision to Missouri's regional haze SIP to address progress made toward RPGs of Class I areas in the state and Class I areas outside the state that are affected by emissions from Missouri's sources. This progress report SIP also included a determination of the adequacy of the state's existing regional haze SIP. Missouri has two Class I areas within its borders, and maintains an additional IMPROVE monitoring site. MDNR utilized particulate matter source apportionment (PSAT) techniques for photochemical modeling conducted by the Central Regional Air Planning Association (CENRAP) to identify two Class I areas in nearby Arkansas potentially impacted by Missouri sources: Upper Buffalo Wilderness Area (UBWA) and Caney Creek Wilderness Area (CCWA). 77 FR 38007.

    A. Regional Haze Progress Report SIPs

    The following sections summarize: (1) Each of the seven elements that must be addressed by the progress report under 40 CFR 51.308(g); (2) how Missouri's progress report SIP addressed each element; and (3) EPA's analysis and proposed determination as to whether the state satisfied each element.

    1. 40 CFR 51.308(g)(1)

    40 CFR 51.308(g)(1) requires a description of the status of implementation of all measures included in the regional haze SIP for achieving RPGs for Class I areas both within and outside the state.

    Missouri evaluated the status of all measures included in its 2009 regional haze SIP in accordance with 40 CFR 51.308(g)(1). Specifically, in its progress report SIP, Missouri summarizes the status of the emissions reduction measures that were included in the final iteration of the CENRAP regional haze emissions inventory and RPG modeling. Such control measures included the CAIR, BART, Tier 2 Federal emissions standards for passenger vehicles, EPA's Clean Air Nonroad Diesel Rule (Tier 4), and the NOX SIP Call. Missouri found that these ongoing air pollution control programs are sufficient to meet the 2018 RPGs for Mingo and Hercules Glades Class I areas, and that programs such as CAIR, CSAPR, and BART were very cost-effective in reducing visibility impairment at Missouri's Class I areas.

    Missouri also discusses the status of those measures that were not included in the final CENRAP emissions inventory and were not relied upon in the initial regional haze SIP to meet RPGs. The state notes that the emissions reductions from these measures could aid in reducing visibility impairment and in achieving the RPGs in Missouri's Class I areas. The measures include the 2010 SO2 NAAQS Attainment Demonstrations, Illinois Multi-Pollutant Regulation, Federal Tier 3 vehicle emission and fuel standards, and the 2007 Federal Heavy-Duty Highway Rule.

    In addition, Missouri addressed facilities with expected emission changes to occur between 2012 and 2017. These changes were not included in the 2009 initial regional haze SIP modeling, as they are not yet permanent and enforceable.

    EPA proposes to find that Missouri's analysis adequately addresses 40 CFR 51.308(g)(1). The state documents the implementation status of measures from its regional haze SIP and describes significant measures resulting from EPA regulations other than the regional haze program as they pertain to the state's sources. The progress report SIP highlights the effect of several Federal control measures both nationally and in the CENRAP region, and when possible, in the state.

    Regarding the status of BART and reasonable progress control requirements for sources in the state, Missouri's progress report SIP notes that of the twenty-six potential BART sources identified, only one source was subject to BART. This remaining source, Holcim (US) Inc. (Holcim-Clarksville), located in Clarksville, Missouri, entered into a consent agreement with MDNR, and set emissions limits for SO2 and NOX to be met as expeditiously as practicable, but no later than four years after approval of Missouri's regional haze plan. EPA approved their regional haze plan on June 26, 2012 (77 FR 38007), including the consent agreement with Holcim-Clarksville, therefore compliance must be achieved no later than June 26, 2016. Since the consent agreement was signed and initial regional haze plan approved, Holcim-Clarksville discontinued Portland cement manufacturing and hazardous waste fuel burning operations. Remaining operations at the facility include receiving, storing, and shipping. Thus the facility's new SO2 and NOX potential emissions are both zero tons per year, which is included in the state-issued operating permit. Because no other sources were found to be subject to BART, the state found that other emission controls or alternative measures in place of BART were not necessary, and no further discussion of the status of controls was necessary in the progress report SIP.

    EPA proposes to conclude that Missouri has adequately addressed the status of control measures in its regional haze SIP as required by 40 CFR 51.308(g)(1). Missouri describes the implementation status of measures from its regional haze SIP, including the status of control measures to meet BART and reasonable progress requirements, the status of significant measures resulting from EPA regulations, as well as measures that came into effect since the CENRAP analyses for the regional haze SIP were completed.

    2. 40 CFR 51.308(g)(2)

    40 CFR 51.308(g)(2) requires a summary of the emissions reductions achieved in the state through the measures subject to 40 CFR 51.308(g)(1).

    In its regional haze SIP and progress report SIP, Missouri focuses its assessment on NOX and SO2 emissions from electric generating units (EGUs) because available information from multiple sources (CENRAP, EPA's Clean Air Markets Division (CAMD), etc.) determined that these compounds accounted for the majority of the visibility-impairing pollution in the Central Region.

    During the period from 2007-2012, SO2 emissions decreased by 45.6% as a result of several factors, including installation of controls, units switching to cleaner fuels, load shifting from dirtier units to cleaner units, and an overall decrease in demand for generation.3 Missouri noted that the downward trend continued, even though demand increased during the period from 2009 through 2011. Additionally, there was a 43.4 percent decrease in pounds of SO2 generated per MMBtu of energy produced. Missouri stated this decrease in emissions, while demand remained relatively steady, indicates that the reductions reflect cleaner generation and not decreased electricity demand.

    3 See also sections III.A.4 and III.A.6 of this action.

    During that same period, NOX emissions generally decreased, as did the generation rate of NOX. However, neither NOX emissions nor NOX generation trended downward every year.

    Missouri noted that as additional controls are installed to meet the stringent requirements of CSAPR, the Industrial Boiler Maximum Achievable Control Technology (MACT) regulation, and the Mercury and Air Toxics Standard (MATS),4 emission rates are expected to decrease even further. Missouri asserts that the current downward trend, particularly for SO2 as the species of predominant concern to visibility impairment at Mingo and Hercules Glades, plus the imminent implementation of additional federal regulations, reinforces their determination that Missouri's Class I areas will meet the established RPGs in the required timeframe.

    4 Since the submission of the Regional Haze Progress SIP, the MATS rule was remanded to the D.C. Circuit by the Supreme Court on June 29, 2015, in Michigan et al. v. Environmental Protection Agency et al. (Slip. Op. 14-46, ___U.S.___(2015)).

    EPA proposes to conclude that Missouri has adequately addressed 40 CFR 51.308(g)(2). The state provides actual emissions reductions of NOX and SO2 from EGUs in Missouri that have occurred since Missouri submitted its regional haze SIP. Missouri appropriately focused on SO2, and to a lesser extent, NOX, emissions from its EGUs in its progress report SIP because it previously identified these emissions as the most significant contributors to visibility impairment at Missouri's Class I areas. Given the large SO2 and NOX reductions at EGUs that have actually occurred, further analysis of emissions from other sources or other pollutants was ultimately unnecessary in this first implementation period. Because no additional controls were found to be needed for reasonable progress for the first implementation period for evaluated sources in Missouri, EPA proposes to find that no further discussion of emissions reductions from controls was necessary in this progress report SIP.

    3. 40 CFR 51.308(g)(3)

    40 CFR 51.308(g)(3) requires that states with Class I areas provide the following information for the most impaired and least impaired days for each area, with values expressed in terms of five-year averages of these annual values: 5

    5 The “most impaired days” and “least impaired days” in the regional haze rule refers to the average visibility impairment (measured in deciviews) for the twenty percent of monitored days in a calendar year with the highest and lowest amount of visibility impairment, respectively, averaged over a five-year period. 40 CFR 51.301.

    (i) Current visibility conditions;

    (ii) the difference between current visibility conditions and baseline visibility conditions; and

    (iii) the change in visibility impairment over the past five years.

    Missouri provides figures with the latest supporting data available at the time that it developed the progress report SIP that address the three requirements of 40 CFR 51.308(g)(3) for Mingo and Hercules Glades. For the first regional haze SIPs, baseline conditions were represented by the 2000-2004 time period. 64 FR 35730. Baseline visibility conditions at Mingo are 28.02 deciviews (dv) for the most impaired (20 percent worst) days and 14.3 dv for the least impaired (20 percent best) days. Current visibility conditions (for the five year period from 2008-2012) are 25.7 dv for the 20 percent worst days and 13.1 dv for the 20 percent best days. The difference between current visibility and baseline visibility for the 20 percent worst days is 2.3 dv of improvement (i.e., 28.0-25.7 dv). The difference between current visibility and baseline visibility conditions for the 20 percent best days is 1.2 dv of improvement (i.e., 14.3-13.1 dv). Further, visibility impairment due to SO2 has shown a downward trend (improved visibility) in terms of the 5-year rolling average for the worst 20 percent days for each of the five-year progress periods evaluated by Missouri. Visibility has also improved in nearly all of the five-year progress periods for SO2 for the best 20 percent days. Missouri noted that the goal for the 20 percent best sampling days is to show no degradation in visibility conditions from the baseline; and available monitored data for the first planning period showed no degradation, and in fact showed improvement. Missouri noted that for the worst 20 percent days, the established 2018 RPG is 23.71 dv, and that based on the current rate of improvement, it is expected that this RPG will be met.

    Hercules Glades has an established baseline condition of 26.75 dv for the most impaired days. Current visibility conditions (for the five year period from 2008-2012) are 23.5 dv for the 20 percent worst days, showing 3.25 dv of improvement. Baseline conditions for the least impaired days are 12.8 dv. Current visibility conditions are 11.3 dv for the 20 percent best days, showing 1.5 dv of improvement. Further, for both the most impaired days and the least impaired days, there has been a steady downward trend in the rolling average visibility, meaning visibility has improved since the baseline for both the worst and the best days. Looking at SO2, there has been a steady downward trend in visibility impairment since the baseline for the worst 20 percent days, and a general downward trend in visibility impairment since the baseline for the best 20 percent days. Missouri noted that the goal was to show improvement in the worst visibility days, and show no further degradation on the best days; in fact, monitored data showed improvement in both. Missouri also noted that for the worst 20 percent days, the established 2018 RPG is 23.06 dv, and that based on the current rate of improvement, it is expected that this RPG will be met.

    Missouri also has an IMPROVE Protocol monitoring site located in El Dorado Springs. This is not a Class I area, but does provide a more comprehensive data set in areas where Class I areas are spread out. Missouri established a baseline condition for the period from 2005-2007, with 26.97 dv for the 20 percent worst days. Missouri stated that the analysis and trends at El Dorado Springs help strengthen the argument that visibility conditions across the entire state, not just at the Class I areas, are improving and are expected to achieve the 2018 RPGs.

    Nearby Class I areas in Arkansas were also reviewed in Missouri's progress report SIP. Upper Buffalo Wildlife Area and Caney Creek Wildlife Area both show a downward trend in visibility impairment for the worst 20 percent days. This downward trend is also seen in SO2 measurements and total light extinction. Missouri notes that this trend at the Class I areas outside the state that are affected by Missouri's sources supports the claim that Missouri's current strategy is still adequate and that reductions achieved in Missouri have benefited areas both in and outside the state.

    EPA proposes to conclude that Missouri has adequately addressed 40 CFR 51.308(g)(3). The state provides the information regarding visibility conditions and notes that no changes are needed to meet the requirements of 40 CFR 51.308(g)(3). The progress report SIP includes current conditions based on the latest available IMPROVE monitoring data for the years 2008-2012, the difference between current visibility conditions and baseline visibility conditions, and the change in visibility impairment over the most recent five-year period for which data were available at the time of the progress report SIP development (i.e., 2008-2012).

    4. 40 CFR 51.308(g)(4)

    40 CFR 51.308(g)(4) requires an analysis tracking emissions changes of visibility-impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emissions inventory.

    In its progress report SIP, Missouri presents data from a statewide emissions inventories conducted in 2005, 2008, and 2011. This data was reported in the National Emissions Inventory (NEI) for each of those years. Pollutants inventoried include carbon oxides, ammonia, NOX, coarse particulate matter, fine particulate matter (PM2.5), SO2, and volatile organic compounds. The emissions inventories from all three datasets include the following sources: Nonpoint, non-road/area, on-road, point, and biogenic sources. Missouri noted that changes in how data is reported under the NEI may impact certain species.

    Missouri examined primarily point-source emissions, because control of point sources provides a higher level of reduction certainty than other source sectors, and therefore is the most relevant to visibility improvement. The state noted that the decreasing trend in point source emissions of SO2 and NOX are of greatest significance to visibility improvement. Other changes in emission levels that were noted include increases in CO levels and increases in PM2.5. Missouri noted that increases in PM2.5 emissions are due to updated stack test emission factors and increased activity at several sources. Missouri also noted that fire source emissions increased for all pollutants between 2008 and 2011, as explained in EPA's 2011 NEIv1 Technical Support Document (November 2013.) This document estimates about 30 percent more acres burned in 2011 than in 2008 due to several forest fires of over 1,000 acres within the Mark Twain National Forest in southern Missouri.

    Biogenic emissions also changed between 2008 and 2011, with some pollutants increasing and some decreasing. Missouri notes that the Biogenic Emissions Inventory System (BEIS) version 3.14, developed by EPA to model the biogenic emissions for the NEI, did not address changes to vegetation or other factors between years, so the state cannot specifically address why some pollutants increased.

    Missouri noted that the purpose at this point is to evaluate the paramount pollutants to visibility improvement, SO2 and NOX, and notes that both show a steady downward trend over the last five years, which can be linked to steadily improving visibility conditions.

    EPA proposes to conclude that Missouri has adequately addressed 40 CFR 51.308(g)(4). While ideally the five-year period to be analyzed for emissions inventory changes is the time period since the current regional haze SIP was submitted, there is an inevitable time lag in developing and reporting complete emissions inventories once quality-assured emissions data becomes available. Therefore, EPA believes there is some flexibility in the five-year time period that states can select, Missouri tracked changes in emissions of visibility-impairing pollutants using the 2005, 2008, and 2011 National Emissions Inventory, the latter of which was the most recent updated inventory of actual emissions for the state at the time that it developed the progress report SIP. EPA believes that Missouri's use of the seven-year period from 2005-2011 reflects a conservative picture of the actual emissions realized between 2005-2014, because there is a general downward trend in both SO2 and NOX emissions.

    5. 40 CFR 51.308(g)(5)

    40 CFR 51.308(g)(5) requires an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred over the past five years that have limited or impeded progress in reducing pollutant emissions and improving visibility in Class I areas impacted by the state's sources.

    In its progress report SIP, Missouri indicates that visibility and pollutant trends from the three monitoring sites have an overall downward trend in visibility impairment. The state noted that an anomalous peak appears in the data for 2010, especially at the El Dorado protocol site. Missouri notes that this can most likely be attributed to a fire event that occurred that year. Missouri State University in Springfield, Missouri, monitored an exceedance of PM2.5 on March 6, 2010. Prior to March 6, 2010, there was a prescribed agricultural burn in the region. The state's current Smoke Management Plan (SMP) establishes a basic framework of procedures and requirements for managing smoke from fires managed for resource benefits. The intent is to mitigate nuisance and public safety hazards; to prevent deterioration of air quality and NAAQS violations; and to address visibility impacts in mandatory federal Class I areas. Missouri noted that if in the future there is a fire event that results in a NAAQS violation or other extreme case, the SMP may be re-evaluated.

    EPA proposes to conclude that Missouri has adequately addressed 40 CFR 51.308(g)(5). Missouri demonstrated that there are no significant changes in anthropogenic emissions that have impeded progress in reducing emissions and improving visibility in Class I areas impacted by Missouri's sources. The state referenced its analyses in the progress report SIP identifying an overall downward trend from 2007 to 2012. Further, the progress report SIP shows that Missouri is on track to meet its 2018 emissions projections. Lastly, Missouri acknowledges that plans may be revised as necessary.

    6. 40 CFR 51.308(g)(6)

    40 CFR 51.308(g)(6) requires an assessment of whether the current regional haze SIP is sufficient to enable Missouri, or other states, to meet the RPGs for Class I areas affected by emissions from the state.

    In its progress report, Missouri states that it believes that the elements and strategies outlined in its original regional haze SIP are sufficient to enable Missouri and other neighboring states to meet all the established RPGs. To support this, Missouri notes that based on available monitored data, the current trendline is below the glidepath from baseline conditions to the 2018 RPGs. Visibility is improving at both Class I areas in Missouri, at the El Dorado Springs IMPROVE protocol site, and at the two Class I areas in Arkansas affected by Missouri sources. Thus, Missouri concludes that the realized and planned controls and reductions that form the current strategy for this first implementation period are sufficient to meet the established RPGs.

    EPA proposes to conclude that Missouri has adequately addressed 40 CFR 51.308(g)(6). EPA views this requirement as a qualitative assessment that should evaluate emissions and visibility trends and other readily available information, including expected emissions reductions associated with measures with compliance dates that have not yet become effective. Missouri referenced the improving visibility trends at affected Class I areas and the downward emissions trends in the state, with a focus on SO2 and NOX emissions from Missouri's EGUs that support Missouri's determination that its regional haze SIP is sufficient to meet RPGs for Class I areas in Missouri and outside of Missouri impacted by Missouri sources. EPA believes that Missouri's conclusion regarding the sufficiency of the regional haze SIP is appropriate because of the calculated visibility improvement using the latest available data and the downward trend in SO2 and NOX emissions from EGUs in Missouri.

    7. 40 CFR 51.308(g)(7)

    40 CFR 51.308(g)(7) requires a review of the state's visibility monitoring strategy and an assessment of whether any modifications to the monitoring strategy are necessary. In its progress report SIP, Missouri summarizes the existing IMPROVE monitoring network and its intended continued reliance on IMPROVE for visibility planning. Missouri notes that it will continue IMPROVE monitoring at Hercules Glades and Mingo, consistent with the requirements of 40 CFR 51.308(d)(4)(iv). Missouri also notes that IMPROVE protocol monitoring will continue at El Dorado Springs, since the data can supplement potential data analysis projects which may be needed to address PM2.5 NAAQS.

    EPA proposes to conclude that Missouri has adequately addressed the sufficiency of its monitoring strategy as required by 40 CFR 51.308(g)(7). Missouri reaffirmed its continued reliance upon the IMPROVE monitoring network.

    B. Determination of Adequacy of Existing Regional Haze Plan

    Under 40 CFR 51.308(h), states are required to take one of four possible actions based on the information gathered and conclusions made in the progress report SIP.

    In its progress report SIP, Missouri took the action provided for by 40 CFR 51.308(h)(1), which allows a state to submit a negative declaration to EPA if the state determines that the existing regional haze SIP requires no further substantive revision at this time to achieve the RPGs for Class I areas affected by the state's sources. The basis for Missouri's negative declaration is the findings from the progress report (as discussed in section III.A of this action), including the findings that: SO2 and NOX emissions from Missouri's sources have decreased below original projections, that visibility has improved at both Class I areas in Missouri, both Class I areas in Arkansas affected by Missouri's sources, and at the IMPROVE protocol site in Missouri, and that emissions reductions and visibility improvement are expected to continue over the next five years. Based on these findings, EPA proposes to agree with Missouri's conclusion under 40 CFR 51.308(h) that no further substantive changes to its regional haze SIP are required at this time.

    IV. What is the impact of CAIR and CSAPR on Missouri's progress report?

    Decisions by the Courts regarding EPA rules addressing interstate transport of pollutants have had a substantial impact on EPA's review of the regional haze SIPs of many states. In 2005, EPA issued regulations allowing states to rely on the Clean Air Interstate Rule (CAIR) to meet certain requirements of the Regional Haze Rule. See 70 FR 39104 (July 6, 2005).6 A number of states, including Missouri, submitted regional haze SIPs consistent with these regulatory provisions. CAIR, however, was remanded to EPA in 2008, North Carolina v. EPA, 550 F. 3d 1176, 1178 (D.C. Cir. 2008), and replaced by CSAPR.7 76 FR 48208 (August 8, 2011). Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR would have superseded the CAIR program. However, numerous parties filed petitions for review of CSAPR, and at the end of 2011, the D.C. Circuit issued an order staying CSAPR pending resolution of the petitions and directing EPA to continue to administer CAIR. Order of December 30, 2011, in EME Homer City Generation, L.P. v. EPA, D.C. Cir. No. 11-1302.

    6 CAIR required certain states like Missouri to reduce emissions of sulfur dioxide (SO2) and nitrogen odixes (NOX) that significantly contribute to downwind nonattainment of the 1997 National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5) and ozone. See 70 FR 25162 (May 12, 2005).

    7 CSAPR was issued by EPA to replace CAIR and to help states reduce air pollution and attain CAA standards. See 76 FR 48208 (August 8, 2011) (final rule). CSAPR requires substantial reductions of SO2 and NOX emissions from EGUs in 28 states in the Eastern United States that significantly contribute to downwind nonattainment of the 1997 PM2.5 and ozone NAAQS and 2006 PM2.5 NAAQS.

    EPA finalized a limited approval of Missouri's regional haze SIP on June 26, 2012. 77 FR 38007. In a separate action, published on June 7, 2012, EPA finalized a limited disapproval of the Missouri regional haze SIP because of the state's reliance on CAIR to meet certain regional haze requirements, and issued a Federal Implementation Plan (FIP) to address the deficiencies identified in the limited disapproval of Missouri and other states' regional haze plans. 77 FR 33642 (June 7, 2012). In our FIP, we relied on CSAPR to meet certain regional haze requirements notwithstanding that it was stayed at the time. As we explained, the determination that CSAPR will provide for greater reasonable progress than BART is based on a forward-looking projection of emissions and any year up to 2018 would have been an acceptable point of comparison. Id. At 33647. When we issued this FIP, we anticipated that the requirements of CSAPR would be implemented prior to 2018. Id. Following these EPA actions, however, the D.C. Circuit issued a decision in EME Homer City (696 F.3d 7 (D.C. Cir. 2012)), vacating CSAPR and ordering EPA to continue administering CAIR pending the promulgation of a valid replacement. On April 28, 2014, the Supreme Court reversed the D.C. Circuit's decision on CSAPR and remanded the case to the D.C. Circuit for further proceedings. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). After the Supreme Court decision, EPA filed a motion to lift the stay on CSAPR and asked the D.C. Circuit to toll CSAPR's compliance deadlines by three years, so that the Phase 1 emissions budgets apply in 2015 and 2016 (instead of 2012 and 2013), and the Phase 2 emissions budgets apply in 2017 and beyond (instead of 2014 and beyond). On October 23, 2014, the D.C. Circuit granted EPA's motion. Order of October 23, 2014, in EME Homer City Generation, L.P. v. EPA, D.C. Cir. No. 11-1302. EPA issued an interim final rule to clarify how EPA will implement CSAPR consistent with the D.C. Circuit's order granting EPA's motion requesting lifting the stay and tolling the rule's deadlines. 79 FR 71663 (December 3, 2014) (interim final rulemaking).8

    8 Subsequent to the interim final rulemaking, EPA began implementation of CSAPR on January 1, 2015.

    Throughout the litigation described above, EPA has continued to implement CAIR. Thus, at the time that Missouri submitted its progress report SIP revision, CAIR was in effect, and the State included an assessment of the emission reductions from the implementation of CAIR in its report. The progress report discussed the status of litigation concerning CAIR and CSAPR, but because CSAPR was not at that time in effect, Missouri did not take emissions reductions from CSAPR into account in assessing its regional haze implementation plan. For the same reason, EPA is not assessing at this time the impact of CSAPR on our FIP on the ability of Missouri and its neighbors to meet their reasonable progress goals.

    Given the complex background summarized above, EPA is proposing to determine that Missouri appropriately took CAIR into account in its progress report SIP in describing the status of the implementation of measures included in its regional haze SIP and in summarizing the emissions reductions achieved. CAIR was in effect during the 2008-2014 period addressed by Missouri's progress report. EPA approved Missouri's regulations implementing CAIR as part of the Missouri SIP in 2009, and neither Missouri nor EPA has taken any action to remove CAIR from the Missouri SIP. See 40 CFR 52.2520(c). Therefore, Missouri appropriately evaluated and relied on CAIR reductions to demonstrate the State's progress toward meeting its reasonable progress goals.9 The State's progress report also demonstrated Class I areas in other states impacted by Missouri sources were on track to meet their reasonable progress goals. EPA's intention in requiring the progress reports pursuant to 40 CFR 51.308(g) was to ensure that emission management measures in the regional haze SIPs are being implemented on schedule and that visibility improvement appears to be consistent with the reasonable progress goals. 64 FR 35713, 35747 (July 1, 1999). As the D.C. Circuit only recently lifted the stay on CSAPR, CAIR was in effect in Missouri through 2014, providing the emission reductions relied upon in Missouri's regional haze SIP. Thus, Missouri appropriately took into account CAIR reductions in assessing the implementation of measures in the regional haze SIP for the 2008-2014 timeframe, and EPA believes that it is appropriate to rely on CAIR emission reductions for purposes of assessing the adequacy of Missouri's progress report demonstrating progress up to the end of 2014 as CAIR remained effective until that date, pursuant to 40 CFR 51.308(g) and (h).

    9 EPA discussed earlier in this notice the significance of reductions in SO2 and NOX, as Missouri and the Central Regional Air Planning Association (CENRAP) identified SO2 and NOX as the largest contributor pollutants to visibility impairment at Missouri's Class I areas, as well as those Class I areas affected by Missouri's sources, specifically, and in the CENRAP region generally.

    In addition, EPA also believes reliance upon CAIR reductions to show Missouri's progress toward meeting its RPGs from 2008-2014 is consistent with our prior actions. During the continued implementation of CAIR per the direction of the D.C. Circuit through October 2014, EPA has approved redesignations of areas to attainment of the 1997 PM2.5 NAAQS in which states relied on CAIR as an “enforceable measure.” See 77 FR 76415 (December 28, 2012) (redesignation of Huntington-Ashland, West Virginia); and similar examples. While EPA did previously state in a rulemaking action on the Florida regional haze SIP that a five year progress report may be the appropriate time to address changes, if necessary, for reasonable progress goal demonstrations and long term strategies, EPA does not believe the remanded status of CAIR or the implementation of its replacement CSAPR at this time impacts the adequacy of the Missouri regional haze SIP to address reasonable progress from 2008 through 2014 to meet requirements in 40 CFR 51.308(g) and (h) because CAIR was implemented during the time period evaluated by Missouri for its progress report. See generally 77 FR 73369, 73371 (December 10, 2012) (proposed action on Florida haze SIP).

    EPA's December 3, 2014, interim final rule sunsets CAIR compliance requirements on a schedule coordinated with the implementation of CSAPR compliance requirements. 79 FR at 71655. As noted above, EPA's June 7, 2012, FIP replaced Missouri's reliance upon CAIR for regional haze requirements with reliance on CSAPR to meet those requirements for the long-term. Because CSAPR should result in greater emissions reductions of SO2 and NOX than CAIR throughout the affected region, including in Missouri and neighboring states, EPA expects Missouri to maintain and continue its progress toward its reasonable progress goals for 2018 through continued and additional SO2 and NOX reductions. See generally 76 FR 48208 (promulgating CSAPR).

    At the present time, the requirements of CSAPR apply to sources in Missouri under the terms of a FIP, because Missouri to date has not incorporated the CSAPR requirements into its SIP. The Regional Haze Rule requires an assessment of whether the current “implementation plan” is sufficient to enable the states to meet all established reasonable progress goals. 40 CFR 51.308(g)(6). The term “implementation plan” is defined for purposes of the Regional Haze Rule to mean “any [SIP], [FIP], or Tribal Implementation Plan.” 40 CFR 51.301. EPA is, therefore, proposing to determine that we may consider measures in any issued FIP as well as those in a state's regional haze SIP in assessing the adequacy of the “existing implementation plan” under 40 CFR 51.308(g)(6) and (h). Because CSAPR will ensure the control of SO2 and NOX emissions reductions relied upon by Missouri and other states in setting their reasonable progress goals beginning in January 2015 at least through the remainder of the first implementation period in 2018, EPA is proposing to approve Missouri's finding that there is no need for revision of the existing implementation plan for Missouri to achieve the reasonable progress goals for the Class I areas in Missouri and for Class I areas in nearby states impacted by Missouri sources.

    We note that the Regional Haze Rule provides for periodic evaluation and assessment of a state's reasonable progress toward achieving the national goal of natural visibility conditions by 2064 for CAA section 169A(b). The regional haze regulations at 40 CFR 51.308 required states to submit initial SIPs in 2007 providing for reasonable progress toward the national goal for the first implementation period from 2008 through 2018. 40 CFR 51.308(b). Pursuant to 40 CFR 51.308(f), SIP revisions reassessing each state's reasonable progress toward the national goal are due every five years after that time. For such subsequent regional haze SIPs, 40 CFR 51.308(f) requires each state to reassess its reasonable progress and all the elements of its regional haze SIP required by 40 CFR 51.308(d), taking into account improvements in monitors and control technology, assessing the state's actual progress and effectiveness of its long term strategy, and revising reasonable progress goals as necessary. 40 CFR 51.308(f)(1)-(3). Therefore, Missouri has the opportunity to reassess its reasonable progress goals and the adequacy of its regional haze SIP, including its reliance upon CAIR and CSAPR for emission reductions from EGUs, when it prepares and submits its second regional haze SIP to cover the implementation period from 2018 through 2028. As discussed previously in this notice, emissions of SO2 and NOX are below original trendline projections for the first implementation period, and in some cases, are below projections for 2018. In addition, the visibility data provided by Missouri shows that their Class I areas and Class I areas affected by Missouri sources are all currently on track to achieve their reasonable progress goals.

    V. What action is EPA proposing to take?

    EPA is proposing approval of a revision to the Missouri SIP, submitted by the State of Missouri on August 5, 2014, as meeting the applicable regional haze requirements as set forth in 40 CFR 51.308(g) and 51.308(h).

    VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

    • Does not have Federalism implications as specified in Executive Order 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 this action does not involve technical standards; and

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

    In addition, this proposed rule pertaining to Missouri's regional haze progress report does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    Dated: September 14, 2015. Mark Hague, Acting Regional Administrator, Region 7.
    [FR Doc. 2015-24461 Filed 9-28-15; 8:45 am] BILLING CODE 6560-50-P
    GULF COAST ECOSYSTEM RESTORATION COUNCIL 40 CFR Part 1800 [Docket Number: 109002015-1111-08] RESTORE Act Spill Impact Component Allocation AGENCY:

    Gulf Coast Ecosystem Restoration Council

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Gulf Coast Ecosystem Restoration Council (Council) is publishing for public and Tribal comment proposed regulations to implement the Spill Impact Component of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (RESTORE Act). These regulations will establish the formula allocating funds made available from the Gulf Coast Restoration Trust Fund (Trust Fund) among the Gulf Coast States of Alabama, Florida, Louisiana, Mississippi and Texas (“State” or “States”) pursuant to Sec. 1603(3) of the RESTORE Act.

    DATES:

    Comments are due October 29, 2015.

    ADDRESSES:

    Comments may be submitted through one of these methods:

    Electronic Submission of Comments: Interested persons may submit comments electronically by sending them to [email protected] Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt, and enables the Council to make them available to the public. In general, the Council will make such comments available for public inspection and copying on its Web site, www.restorethegulf.gov, without change, including any business or personal information provided, such as names, addresses, email addresses, or telephone numbers. All comments received, including attachments and other supporting materials, will be part of the public record and subject to public disclosure. You should only submit information that you wish to make publicly available.

    Mail: Send to Gulf Coast Ecosystem Restoration Council, 500 Poydras Street, Suite 1117, New Orleans, LA 70130.

    FOR FURTHER INFORMATION CONTACT:

    Please send questions by email to [email protected], or contact Will Spoon at (504) 239-9814.

    SUPPLEMENTARY INFORMATION:

    Effective Date

    This proposed rule, if and when final, would become effective on the date that the court enters a consent decree among the United States, the Gulf Coast States and BP with respect to the civil penalty and natural resource damages in MDL No. 2179 (United States District Court for the Eastern District of Louisiana).

    Background

    The Gulf Coast region is vital to our nation and our economy, providing valuable energy resources, abundant seafood, extraordinary beaches and recreational activities, and a rich natural and cultural heritage. Its waters and coasts are home to one of the most diverse natural environments in the world—including over 15,000 species of sea life and millions of migratory birds. The Gulf has endured many catastrophes, including major hurricanes such as Katrina, Rita, Gustav and Ike in the last ten years alone. The region has also experienced the loss of critical wetland habitats, erosion of barrier islands, imperiled fisheries, water quality degradation and significant coastal land loss. More recently, the health of the region's ecosystem was significantly affected by the Deepwater Horizon oil spill. As a result of the oil spill, the Council has been given the great responsibility of helping to address ecosystem challenges across the Gulf.

    In 2010 the Deepwater Horizon oil spill caused extensive damage to the Gulf Coast's natural resources, devastating the economies and communities that rely on it. In an effort to help the region rebuild in the wake of the spill, Congress passed and the President signed the RESTORE Act, Public Law 112-141, Sec. 1601-1608, 126 Stat. 588 (Jul. 6, 2012), codified at 33 U.S.C. 1321(t) and note. The RESTORE Act created the Gulf Coast Restoration Trust Fund (Trust Fund) and dedicates to the Trust Fund eighty percent (80%) of any civil and administrative penalties paid under the Clean Water Act, after enactment of the RESTORE Act, by parties responsible for the Deepwater Horizon oil spill.

    Under the RESTORE Act, these funds will be made available through five components. The Department of the Treasury (Treasury) has issued regulations (79 FR 48,039 (Aug. 15, 2014), adopting interim final rule at 31 CFR part 34) (Treasury Regulations) applicable to all five components that generally describe the responsibilities of the Federal and State entities that administer RESTORE Act programs and carry out restoration activities in the Gulf Coast region.

    Two of the five components, the Council-Selected Restoration Component and the Spill Impact Component, are administered by the Council, an independent Federal entity created by the RESTORE Act. Under the Spill Impact Component (33 U.S.C. 1321(t)(3)), the subject of this rule, 30 percent of funds in the Trust Fund will be disbursed to the States based on allocation criteria set forth in the RESTORE Act.1 In order for funds to be disbursed to a State, the RESTORE Act requires each State to develop a State Expenditure Plan (SEP) and submit it to the Council for approval. The RESTORE Act specifies particular entities within the States to prepare these plans.

    1 33 U.S.C. 1321(t)(3)(A)(ii). The Council previously promulgated a regulation permitting the States access to up to 5 percent of the total amount available in the Trust Fund to each State under the Spill Impact Component (the statutory minimum guaranteed to each State). These funds could be used for planning purposes associated with developing a State Expenditure Plan. 80 FR 1584 (Jan. 13, 2015); 40 CFR 1800.20.

    SEPs must meet the following four criteria set forth in the RESTORE Act: (1) All projects, programs and activities (activities) included in the SEP are eligible activities under the RESTORE Act (33 U.S.C. 1321(t)(3)(B)(i)(I)); (2) all activities included in the SEP contribute to the overall economic and ecological recovery of the Gulf Coast (33 U.S.C. 1321(t)(3)(B)(i)(II)); (3) the SEP takes the Council's Comprehensive Plan into consideration and is consistent with the goals and objectives of the Comprehensive Plan (33 U.S.C. 1321(t)(3)(B)(i)(III)); and (4) no more than 25 percent of the allotted funds are used for infrastructure projects unless the SEP contains certain certifications pursuant to 33 U.S.C. 1321(t)(3)(B)(ii). If the Council determines that an SEP meets the four criteria listed above and otherwise complies with the RESTORE Act and the applicable Treasury Regulations, the Council must approve the SEP based upon such determination within 60 days after a State submits an SEP to the Council. 33 U.S.C. 1321(t)(3)(B)(iv).

    The funds the Council disburses to the States upon approval of an SEP will be in the form of grants. As required by Federal law, the Council will award a Federal grant or grants to each of the States and incorporate into the grant award(s) standard administrative terms on such topics as recordkeeping, reporting and auditing. The Council will establish and implement a compliance program to ensure that the grants it issues comply with the terms of the grant agreement.

    The ultimate amount of administrative and civil penalties potentially available to the Trust Fund is not yet known. On January 3, 2013, the United States announced that Transocean Deepwater Inc. and related entities agreed to pay $1 billion in civil penalties for violating the Clean Water Act in relation to their conduct in the Deepwater Horizon oil spill. The settlement was approved by the court in February 2013, and pursuant to the RESTORE Act approximately $816 million (including interest) has been paid into the Trust Fund. On July 2, 2015, BP announced that it reached Agreements in Principle (AIPs) for settlement of civil claims arising from the Deepwater Horizon oil spill. According to the announcement, the AIPs provide for a payment to the United States of a civil penalty of $5.5 billion under the Clean Water Act, payable over 15 years. As discussed above, the RESTORE Act provides that 80% of civil penalties paid under the Clean Water Act arising out of the Deepwater Horizon oil spill are dedicated to the Trust Fund. There are, however, additional steps that must be completed before those funds become available. The terms of the proposed settlements are subject to a confidentiality order and will not become final until, among other things, a consent decree is negotiated, is made available for public review and comment, and is approved and entered by the court.

    This Proposed Rule

    This proposed rule establishes the formula for allocating among the five States funds made available through the Spill Impact Component of the Trust Fund (Spill Impact Component), as required by the RESTORE Act, and would supplement the Treasury Regulations. This rule, and the application of any determinations made hereunder, is limited to the Spill Impact Component and is promulgated solely for the purpose of establishing such allocation. The Council takes no position on what data or determinations may be appropriate for other uses, including for any other Component of the RESTORE Act or in connection with natural resource damage assessments, ongoing litigation, any other law or regulation or any rights or obligations in connection therewith.

    The RESTORE Act mandates that funds made available from the Trust Fund for the Spill Impact Component be disbursed to each State based on a formula established by the Council by a regulation based on a weighted average of the following three criteria: (1) Forty (40) percent based on the proportionate number of miles of shoreline in each State that experienced oiling on or before April 10, 2011, compared to the total number of miles of shoreline throughout the Gulf Coast region that experienced oiling as a result of the Deepwater Horizon oil spill; (2) forty (40) percent based on the inverse proportion of the average distance from the mobile offshore drilling unit Deepwater Horizon at the time of the explosion to the nearest and farthest point of the shoreline that experienced oiling of each State; and (3) twenty (20) percent based on the average population in the 2010 Decennial Census of coastal counties bordering the Gulf of Mexico within each State. 33 U.S.C. 1321(t)(3)(A)(ii).

    For the first criterion, the Council used Shoreline Cleanup and Assessment Technique (SCAT) and Rapid Assessment Technique (RAT) data supplied by the United States Coast Guard. SCAT and RAT represent the U.S. Government's official dataset for tracking and responding to oil spills and thus represent the most consistent, clear and reasonable currently available dataset to use for determining the first criterion, which calls for a determination of the proportionate number of miles of shoreline in each State that experienced oiling on or before April 10, 2011, compared to the total number of miles of shoreline throughout the Gulf Coast region that experienced oiling as a result of the Deepwater Horizon oil spill.

    For the second criterion, the Council used the same SCAT and RAT data along with official latitude and longitudinal data supplied by the U.S. Coast Guard to determine the inverse proportion of the average distance from the location of the Deepwater Horizon mobile offshore drilling unit at the time of the explosion to the nearest and farthest point of the shoreline that experienced oiling of each State.

    For the third criterion, the Council first had to determine what constituted “coastal counties bordering the Gulf of Mexico within each Gulf Coast State” before it could determine the average population based on the 2010 Decennial Census. The RESTORE Act and Treasury's implementing regulations define the relevant counties for the State of Florida. 33 U.S.C. 1321(t)(1)(C). The Treasury regulations implementing the RESTORE Act specify these counties as: Bay, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gulf, Hernando, Hillsborough, Jefferson, Lee, Levy, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, and Walton. 31 CFR 34.2. For the purposes of this draft rule, the Council proposes to define the Florida counties listed in the Treasury regulations as “coastal counties.”

    However, the RESTORE Act does not specifically define the term “coastal counties,” nor does it identify specific counties in the States of Alabama, Louisiana, Mississippi or Texas that are “coastal counties” under the RESTORE Act. Nor does any other relevant Federal law or regulation define or identify these counties. Accordingly, the Council must itself determine which counties in those States qualify as “coastal counties” for the purposes of the Spill Impact Component.

    For the States of Alabama, Louisiana, Mississippi and Texas, the Council proposes to interpret the term “coastal counties” as those counties that, according to a generally accessible geographic map of the states, physically touch the Gulf of Mexico. Using this interpretation, the Council proposes identifying the following counties as “coastal counties” for the purposes of the rule: Baldwin and Mobile Counties for Alabama; Cameron, Iberia, Jefferson, Lafourche, Orleans, Plaquemines, St. Bernard, St. Mary, St. Tammany, Terrebonne, and Vermilion Parishes for Louisiana; Hancock, Harrison, and Jackson Counties for Mississippi; and Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Jefferson, Kenedy, Kleberg, Matagorda, Nueces, and Willacy Counties for Texas.

    Additionally, with respect to the State of Texas the Council considered the list of coastal counties used by the State of Texas Railroad Commission (TRC) (http://www.rrc.state.tx.us/), the Texas state agency responsible for regulating exploration, production and transportation of oil and natural gas in Texas as well as related pollution prevention measures—matters that are topically related to the purposes of the RESTORE Act. The counties identified in the TRC list are the same as those identified for Texas above.2 The Council also considered other possible sources for determining the Texas coastal counties but has determined that they are insufficient for such purposes.

    2 The Council proposes to use the TRC list only for purposes of the Spill Impact Component criterion set forth in 33 U.S.C. 1321(t)(3)(A)(ii)(III). For the avoidance of doubt, the Council's use of this list has no bearing or effect on (i) any other provision of the RESTORE Act, the laws of Texas or any other Federal or state laws; (ii) any other determination of coastal counties, areas, jurisdictions or political subdivisions; or (iii) any other determination of legal rights or obligations.

    After determining the “coastal counties,” the RESTORE Act requires the Council to use the 2010 Decennial Census figures for those counties to determine the average population of the coastal counties bordering the Gulf of Mexico within each State.

    Using the figures calculated based on the above assumptions and applying the criteria specified in the RESTORE Act, the Council proposes that the final allocation among the five States be: Alabama—20.40%; Florida—18.36%; Louisiana—34.59%; Mississippi—19.07%; and Texas—7.58%.3

    3 The Council notes that the calculations resulting in the above allocation involved rounding.

    After consideration of public comment on this proposed rule, the Council will respond to those comments and revise the rule as appropriate. Consistent with the requirements of the RESTORE Act, the Council will then publicly vote on whether to adopt a final rule and publish the final rule in the Federal Register. 33 U.S.C. 1321(t)(2)(C)(vi). Approval of the rule requires the affirmative vote of the Chairperson and a majority of the five State members. 33 U.S.C. 1321(t)(2)(C)(vi)(I).

    Environmental Compliance

    The Council does not regard promulgating this proposed rule, including the allocation formula and State allocation percentages set forth herein, as requiring National Environmental Policy Act (NEPA) review, because the Council has no discretion in either establishing such elements of the Spill Impact Component or weighting such elements, both of which are specified in the RESTORE Act.

    NEPA review will apply to specific activities undertaken pursuant to Council-approved SEPs that require significant Federal action before they can commence. For example, an SEP project requiring a Federal permit would generally require NEPA review by the issuing Federal agency, and obtaining such a permit might also require other Federal environmental compliance. No SEP implementation funds for an activity will be disbursed by the Council to a State until all requisite permits and licenses have been obtained.

    The Council invites public comment on whether the Council's approving and funding SEPs under the RESTORE Act will require NEPA review, as outlined in the following analysis:

    The Council does not anticipate that its review or approval of SEPs, or the issuance of related grants under the Spill Impact Component of the RESTORE Act, will require NEPA review. The Council has a limited statutory role in the review of SEPs and administration of Spill Impact Component grants, and a limited timeframe for Council SEP review under the RESTORE Act.

    Under the RESTORE Act the Council has no role in the creation of SEPs or the design or selection of Spill Impact Component activities; those activities are undertaken solely by the States. The RESTORE Act specifies the four criteria that SEPs must meet in order to be eligible for funding, and when an SEP meets these criteria the Council has no authority or discretion to reject an SEP, to select or designate alternative versions of an SEP, or to select or designate alternative activities within an SEP. Although the Council must determine whether an SEP has met these criteria, the RESTORE Act does not grant the Council discretion to separately consider external factors, such as environmental impacts, in its review.

    NEPA is designed to help Federal agencies consider environmental consequences during their decision-making process, and to consider alternatives to a proposed action. Since the Council has no role in creating SEPs and lacks the discretion to separately consider environmental consequences or SEP alternatives, a NEPA review would have no bearing on the Council's decision to either approve or reject an SEP.

    Moreover, under the RESTORE Act the Council is given 60 days after submission of an SEP to approve or disapprove it for funding. This timeframe would not allow the Council sufficient time to conduct meaningful NEPA review. NEPA reviews, even those concluding that environmental impacts are not significant, typically require several months at a minimum—certainly longer than the 60 days allowed for Council approval of an SEP. Nor could the Council require a completed NEPA analysis to accompany a proposed SEP before starting the 60-day review (e.g., as part of or prior to an SEP submission); this would in effect impose an additional criterion for approval of an SEP, which is beyond Council authority under the RESTORE Act.

    NEPA would therefore not apply to Council approval or funding of an SEP.

    Regulatory Planning and Review (Executive Orders 12866 and 13563)

    As an independent Federal entity that is composed of, in part, six Federal agencies, including the Departments of Agriculture, the Army, Commerce, and the Interior, and the Department in which the Coast Guard is operating, and the Environmental Protection Agency, the requirements of Executive Orders 12866 and 13563 are inapplicable to this rule.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally requires agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule will not have a significant economic impact on a substantial number of small entities because the direct recipients of the funds allocated under this rule are the five States, and states are not small entities under the Regulatory Flexibility Act. Additionally, this rule does not place any economic burden on the “coastal counties”; rather those counties will receive funds from their respective States' share of the allocated funds. Therefore, the Council has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule does not have a significant economic impact on a substantial number of small entities. Thus, an initial regulatory flexibility analysis is not required and has not been prepared. The Council invites comments on the rule's impact on small entities.

    Paperwork Reduction Act

    This rule is promulgated solely to establish an allocation formula and State allocation percentages. As such, there are no associated paperwork requirements. Any paperwork necessary to submit a SEP under the Spill Impact component of the RESTORE Act is a statutory requirement unaffected by this rule. 31 U.S.C. 1321(t)(3).

    The Council requests public and Tribal comment on all aspects of this proposed rule.

    List of Subjects in 40 CFR Part 1800

    Coastal zone, Fisheries, Grant programs, Grants administration, Gulf Coast Restoration Trust Fund, Gulf RESTORE Program, Intergovernmental relations, Marine resources, Natural resources, Oil pollution, Research, Science and technology, Trusts, Wildlife.

    For the reasons set forth in the preamble, the Gulf Coast Ecosystem Restoration Council proposes to amend 40 CFR part 1800 as follows:

    PART 1800—SPILL IMPACT COMPONENT 1. The authority citation for part 1800 continues to read as follows: Authority:

    33 U.S.C. 1321(t).

    2. Amend § 1800.1 by adding in alphabetical order the definitions for Deepwater Horizon oil spill, Spill Impact Formula, Inverse proportion, Treasury, and Trust Fund to read as follows:
    § 1800.1 Definitions.

    Deepwater Horizon oil spill means the blowout and explosion of the mobile offshore drilling unit Deepwater Horizon that occurred on April 20, 2010, and resulting hydrocarbon releases into the environment.

    Spill Impact Formula means the formula established by the Council in accordance with section 311(t)(3)(A)(ii) of the Federal Water Pollution Control Act, as added by section 1603 thereof.

    Inverse proportion means a mathematical relation between two quantities such that one proportionally increases as the other decreases.

    Treasury means the U.S. Department of the Treasury, the Secretary of the Treasury, or his/her designee.

    Trust Fund means the Gulf Coast Restoration Trust Fund.

    3. Add subpart C to read as follows: Subpart C—Spill Impact Formula Sec. 1800.100 Purpose. 1800.101 General formula. 1800.200 Oiled shoreline. 1800.201 Miles of shoreline that experienced oiling as a result of the Deepwater Horizon oil spill. 1800.202 Proportionate number of miles of shoreline that experienced oiling as a result of the Deepwater Horizon oil spill. 1800.300 Inverse proportion of the average distance from Deepwater Horizon at the time of the explosion. 1800.301 Distances from the Deepwater Horizon at the time of the explosion. 1800.302 Inverse proportions. 1800.400 Coastal county populations. 1800.401 Decennial census data. 1800.402 Distribution based on average population. 1800.500 Allocation.
    § 1800.100 Purpose.

    This subpart establishes the formula applicable to the Spill Impact Component authorized under the RESTORE Act (Pub. L. 112-141, 126 Stat. 405, 588-607).

    § 1800.101 General formula.

    The RESTORE Act provides that thirty percent (30%) of the funds made available from the Trust Fund for the Oil Spill Impact Component be disbursed to each of the Gulf Coast States of Alabama, Florida, Louisiana, Mississippi and Texas based on a formula established by the Council (Spill Impact Formula), through a regulation, that is based on a weighted average of the following criteria:

    (a) Forty percent (40%) based on the proportionate number of miles of shoreline in each Gulf Coast State that experienced oiling on or before April 10, 2011, compared to the total number of miles of shoreline that experienced oiling as a result of the Deepwater Horizon oil spill;

    (b) Forty percent (40%) based on the inverse proportion of the average distance from the mobile offshore drilling unit Deepwater Horizon at the time of the explosion to the nearest and farthest point of the shoreline that experienced oiling of each Gulf Coast State; and

    (c) Twenty percent (20%) based on the average population in the 2010 Decennial Census of coastal counties bordering the Gulf of Mexico within each Gulf Coast State.

    § 1800.200 Oiled shoreline.

    Solely for the purpose of calculating the Spill Impact Formula, the following shall apply, rounded to one decimal place with respect to miles of shoreline:

    § 1800.201 Miles of shoreline that experienced oiling as a result of the Deepwater Horizon oil spill.

    According to Shoreline Cleanup and Assessment Technique and Rapid Assessment Technique data provided by the United States Coast Guard, the miles of shoreline that experienced oiling on or before April 10, 2011 for each Gulf Coast State are:

    (a) Alabama—89.8 miles.

    (b) Florida—174.6 miles.

    (c) Louisiana—658.3 miles.

    (d) Mississippi—158.6 miles.

    (e) Texas—36.0 miles.

    § 1800.202 Proportionate number of miles of shoreline that experienced oiling as a result of the Deepwater Horizon oil spill.

    The proportionate number of miles for each Gulf Coast State is determined by dividing each Gulf Coast State's number of miles of oiled shoreline determined in 1800.201 by the total number of affected miles. This calculation yields the following:

    (a) Alabama—8.04%.

    (b) Florida—15.63%.

    (c) Louisiana—58.92%.

    (d) Mississippi—14.19%.

    (e) Texas—3.22%.

    § 1800.300 Inverse proportion of the average distance from Deepwater Horizon at the time of the explosion.

    Solely for the purpose of calculating the Spill Impact Formula, the following shall apply, rounded to one decimal place with respect to distance:

    § 1800.301 Distances from the Deepwater Horizon at the time of the explosion.

    (a) Alabama—The distance from the nearest point of the Alabama shoreline that experienced oiling from the Deepwater Horizon oil spill was 89.2 miles. The distance from the farthest point of the Alabama shoreline that experienced oiling from the Deepwater Horizon oil spill was 103.7 miles. The average of these two distances is 96.5 miles.

    (b) Florida—The distance from the nearest point of the Florida shoreline that experienced oiling from the Deepwater Horizon oil spill was 102.3 miles. The distance from the farthest point of the Florida shoreline that experienced oiling from the Deepwater Horizon oil spill was 207.6 miles. The average of these two distances is 154.9 miles.

    (c) Louisiana—The distance from the nearest point of the Louisiana shoreline that experienced oiling from the Deepwater Horizon oil spill was 43.5 miles. The distance from the farthest point of the Louisiana shoreline that experienced oiling from the Deepwater Horizon oil spill was 213.7 miles. The average of these two distances is 128.6 miles.

    (d) Mississippi—The distance from the nearest point of the Mississippi shoreline that experienced oiling from the Deepwater Horizon oil spill was 87.7 miles. The distance from the farthest point of the Mississippi shoreline that experienced oiling from the Deepwater Horizon oil spill was 107.9 miles. The average of these two distances is 97.8 miles.

    (e) Texas—The distance from the nearest point of the Texas shoreline that experienced oiling from the Deepwater Horizon oil spill was 306.2 miles. The distance from the farthest point of the Texas shoreline that experienced oiling from the Deepwater Horizon oil spill was 356.5 miles. The average of these two distances is 331.3 miles.

    § 1800.302 Inverse proportions.

    The inverse proportion for each Gulf Coast State is determined by summing the proportional average distances determined in 1800.301 and taking the inverse. This calculation yields the following:

    (a) Alabama—27.39%.

    (b) Florida—17.06%.

    (c) Louisiana—20.55%.

    (d) Mississippi—27.02%.

    (e) Texas—7.98%.

    § 1800.400 Coastal county populations.

    Solely for the purpose of calculating the Spill Impact Formula, the coastal political subdivisions bordering the Gulf of Mexico within each Gulf Coast State are:

    (a) The Alabama Coastal Counties, consisting of Baldwin and Mobile counties;

    (b) The Florida Coastal Counties, consisting of Bay, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gulf, Hernando, Hillsborough, Jefferson, Lee, Levy, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, and Walton counties;

    (c) The Louisiana Coastal Parishes, consisting of Cameron, Iberia, Jefferson, Lafourche, Orleans, Plaquemines, St. Bernard, St. Mary, St. Tammany, Terrebonne, and Vermilion parishes;

    (d) The Mississippi Coastal Counties, consisting of Hancock, Harrison, and Jackson counties; and

    (e) The Texas Coastal Counties, consisting of Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Jefferson, Kennedy, Kleberg, Matagorda, Nueces, and Willacy counties.

    § 1800.401 Decennial census data.

    The average populations in the 2010 decennial census for each Gulf Coast State, rounded to the nearest whole number, are:

    (a) For the Alabama Coastal Counties, 297,629 persons;

    (b) For the Florida Coastal Counties, 252,459 persons;

    (c) For the Louisiana Coastal Parishes, 133,633 persons;

    (d) For the Mississippi Coastal Counties,123,567 persons; and

    (e) For the Texas Coastal Counties, 147,845 persons.

    § 1800.402 Distribution based on average population.

    The distribution of funds based on average populations for each Gulf Coast State is determined by dividing the average population determined in 1800.401 by the sum of those average populations. This calculation yields the following results:

    (a) Alabama—31.16%.

    (b) Florida—26.43%.

    (c) Louisiana—13.99%.

    (d) Mississippi—12.94%.

    (e) Texas—15.48%.

    § 1800.500 Allocation.

    Using the data from sections 1800.200 through 1800.402 of this subpart in the formula provided in section 1800.101 of this subpart yields the following allocation for each Gulf Coast State:

    (a) Alabama—20.40%.

    (b) Florida—18.36%.

    (c) Louisiana—34.59%.

    (d) Mississippi—19.07%.

    (e) Texas—7.58%.

    Justin R. Ehrenwerth, Executive Director, Gulf Coast Ecosystem Restoration Council.
    [FR Doc. 2015-24816 Filed 9-28-15; 8:45 am] BILLING CODE 6560-58-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [PS Docket No. 15-199; FCC 15-105] Enable Railroad Police Officers To Access Public Safety Interoperability and Mutual Aid Channels AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    This document seeks comment on proposals to amend the Commission's rules to provide railroad police with access to public safety interoperability and mutual aid channels. By this action, the Commission affords interested parties an opportunity to submit comments on these proposed rule changes.

    DATES:

    Comments are due on or before November 13, 2015 and reply comments are due on or before November 30, 2015.

    ADDRESSES:

    You may submit comments, identified by PS Docket No. 15-199, by any of the following methods:

    Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    FOR FURTHER INFORMATION CONTACT:

    John Evanoff, Attorney-Advisor of the Public Safety and Homeland Security Bureau, Policy and Licensing Division, at (202) 418-0848, or by email to [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 15-105, released on September 1, 2015. The document is available for download at http://fjallfoss.fcc.gov/edocs-public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    In the Notice of Proposed Rulemaking (NPRM) in PS Docket No. 15-199, the Commission initiates a new proceeding to amend the part 90 rules governing access to public safety interoperability and mutual aid channels. The Commission seeks comment on expanding eligibility to allow railroad police officers employed by Class I, Class II and Class III railroads as defined by the U.S. Department of Transportation's Surface Transportation Board (STB) and recognized by the Federal Railroad Administration (FRA) to operate on public safety interoperability and mutual aid channels. Further, the Commission seeks comment on alternatives for defining eligible railroad police officers, including expanding the definition to include part-time rail police and Amtrak. The Commission also seeks comment on requiring railroad police officers to obtain governmental authorization to operate on the 700 MHz interoperability channels as required by § 90.523 of the Commission's rules and Section 337(f)(1) of the Communications Act of 1934, as amended. Additionally, the Commission seeks comment on requiring railroad police officers seeking to license the interoperability channels to obtain frequency coordination and submit a license application, in the event that it is decided that railroads can operate base and control stations on interoperability channels.

    Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Commenters who file information that they believe should be withheld from public inspection may request confidential treatment pursuant to § 0.459 of the Commission's rules. Commenters should file both their original comments for which they request confidentiality and redacted comments, along with their request for confidential treatment. Commenters should not file proprietary information electronically. See Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998), Order on Reconsideration, 14 FCC Rcd 20128 (1999). Even if the Commission grants confidential treatment, information that does not fall within a specific exemption pursuant to the Freedom of Information Act (FOIA) must be publicly disclosed pursuant to an appropriate request. See 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant requests for confidential treatment either conditionally or unconditionally. As such, we note that the Commission has the discretion to release information on public interest grounds that does fall within the scope of a FOIA exemption.

    This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended (RFA) the Commission prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be filed by the same dates as listed on the first page of the NPRM and must have a separate and distinct heading designating them as responses to this IRFA. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

    Need for, and Objectives of, the Proposed Rules

    The NPRM is intended to determine whether it is in the public interest, convenience and necessity to amend the Part 90 rules to reduce regulatory barriers and facilitate railroad police access to public safety interoperability and mutual aid channels. Specifically, in response to a Petition for Rulemaking filed by the National Public Safety Telecommunications Council (NPSTC), the NPRM seeks comment on expanding eligibility to allow railroad police officers employed by a Class I, Class II and Class III railroad as defined by the U.S. Department of Transportation's Surface Transportation Board (STB) and recognized by the Federal Railroad Administration (FRA) to operate on public safety interoperability channels in the VHF and UHF bands below 512 MHz, 700 MHz narrowband and 800 MHz NPSPAC band. Commenters were uniformly supportive of the NPSTC proposal, which the Public Safety and Homeland Security Bureau placed on Public Notice. These commenters, including the U.S. Department of Transportation, cited the safety of life and property role that railroad police officers play in emergencies. In certain emergencies, such as accidents involving railroads or security incidents involving the U.S. rail network, public safety personnel may need to communicate with railroad police. Additionally, Congress enacted the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Recommendations Act), which provides that railroad grant funding may be used, inter alia, to acquire “communications equipment, including equipment that is interoperable with Federal, State, and local agencies and tribal governments[.]” Therefore, in light of the record and expression of Congressional intent, the NPRM seeks comment on amending the eligibility rules applicable to interoperability spectrum.

    As discussed below, the Commission has endeavored to keep the burdens associated with this rule change as simple and minimal as possible. The NPRM seeks comment on requiring railroad police officers to obtain governmental authorization to operate on the 700 MHz interoperability channels as required by § 90.523 of the Commission's rules and Section 337(f)(1) of the Communications Act of 1934, as amended. Further, the NPRM seeks comment on requiring railroad police officers seeking to license the interoperability channels to obtain frequency coordination and submit a license application, in the event that it is decided that railroads can operate base and control stations on interoperability channels. Additionally, the NPRM seeks comment on alternatives to licensing on the interoperability channels in order to minimize the burden on railroad entities, as discussed below. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    Finally, we propose to update § 90.20 of the Commission's rules to explicitly identify the nationwide interoperability channels to facilitate interoperability among Federal, State, Local, Tribal and Railroad Police entities. The Commission concludes that it is necessary to eliminate uncertainty and to codify the flexible licensing approach concerning the use of all the public safety interoperability channels.

    Legal Basis

    These proposed actions are taken under Sections 1, 2, 4(i), 4(j), 301, 303, 316, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 303, 316, 332 and 337.

    Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

    The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” The official count of local governments in the United States for 2012 was 90,056, comprising 38,910 general-purpose governments and 51,146 special-purpose governments. General purpose governments include those classified as counties, municipalities, and townships. For this category, census data for 2012 show that there were approximately 37,132 counties, cities and towns that have populations of fewer than 50,000. In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we describe and estimate the number of small entities that may be affected by the rules changes proposed in this NPRM.

    Private Land Mobile Radio Licensees. PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories, and are often used in support of the licensee's primary (non-telecommunications) business operations. Because of the vast array of PLMR users, which includes railroads, the Commission has not developed a small business size standard specifically applicable to PLMR users. The SBA rules, however, contain a definition for Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications employing no more than 1,500 persons. For this category, census data for 2007 show that there were 11,163 establishments that operated for the entire year. Of this total, 10,791 establishments had employment of 999 or fewer employees and 372 had employment of 1000 employees or more. Under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. The Commission, however, does not require PLMR licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. We note that PLMR licensees generally use the licensed facilities in support of other business activities, and therefore, it would also be helpful to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs.

    Public Safety Radio Pool Licensees. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Spectrum in the 700 MHz band for public safety services is governed by 47 U.S.C. 337. Non-Federal governmental entities may be eligible licensees for these services. All governmental entities with populations of less than 50,000 fall within the definition of a small entity. According to the Commission's records, there were (1) 1,318 public safety licensees licensed on at least one of the VHF and UHF public safety interoperability channels; (2) 59 public safety licensees licensed on at least one of the narrowband interoperability channels in the public safety band between 764-776 MHz/794-806 MHz; and (3) 4,715 public safety licensees operating in the public safety band between 806-809/851-854 MHz (NPSPAC band). In total there are 6,092 public safety entities, including small governmental jurisdictions, licensed to operate on at least one of the interoperability and mutual aid channels.

    Class I, Class II, and Class III Railroads. NPSTC proposes expanding eligibility to operate on the interoperability channels to include full-time railroad police employed by a Class I, II, or III railroad, as defined by the STB and recognized by the FRA. The SBA stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be and still be classified as a “small entity” is 1,500 employees for “Line-Haul” railroads, and 500 employees for “Short-Line” railroads. SBA size standards may be altered by Federal agencies in consultation with SBA, and in conjunction with public comment. Pursuant to the authority provided to it by SBA, the FRA has published a final policy, which formally establishes small entities as railroads that meet the line haulage revenue requirements of a “Class III railroad.” This threshold is based on the STB's threshold for a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment. Consistent with FRA's approach, we are using this definition for this rulemaking. Approximately 700 railroads meet the criteria for small entity. We are using this as our estimate of the universe of small entities that could be directly impacted by the proposed rule.

    The NPRM seeks comment on expanding eligibility to operate on the interoperability channels. The primary beneficiaries of this increased flexibility would be railroads, including small railroads, and PLMR licensees, including small governmental jurisdictions, that have a need to interoperate with each other. The FCC notes that the requirement that railroads obtain governmental authorization to operate on the 700 MHz interoperability channels is statutorily required and the Commission is without authority to exempt railroads from this requirement. Additionally, railroad entities may be required to obtain frequency coordination and submit a license application on FCC Form 601 in order to license, construct and operate base and control stations on the interoperability channels. The NPRM seeks comment on additional flexibility that may reduce the impact on railroad police officers operating on the interoperability channels. Those alternatives are discussed below.

    Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    This NPRM contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. The NPRM seeks comment on whether railroad police officers who are certified and/or commissioned as a police officer under the laws of any state, in accordance with the regulations issued by the Secretary of the U.S. Department of Transportation and employed full time as a railroad police officer for a Class I, II, or III railroad, as defined by the U.S. Department of Transportation's Surface Transportation Board and recognized by the Federal Railroad Administration (FRA) should be eligible to operate on the nationwide interoperability and mutual aid channels specified in §§ 90.20 and 90.525 of the Commission's rules. The NPRM also seeks comment on alternatives for defining eligible railroad police officers, including expanding the definition to include part-time rail police and Amtrak consistent with FRA regulations. The NPRM seeks comment on its tentative conclusion that the definition of railroad police officers established by the Department of Transportation best captures the eligibility criteria for railroad police use of the interoperability and mutual aid channels.

    The NPRM also seeks comment on requiring railroad police officers to obtain governmental authorization to operate on the 700 MHz interoperability channels as required by § 90.523 of the Commission's rules and Section 337(f)(1) of the Communications Act of 1934, as amended. In accordance with the Paperwork Reduction Act, the Office of Management and Budget (OMB) has already approved the collection of state and local government certifications from non-governmental organizations that seek to operate on the 700 MHz narrowband channels. See ICR Reference Number: 201403-3060-018, OMB Control No. 3060-0805. The nationwide interoperability and mutual aid channels are designed to meet a variety of public safety interoperability needs, but railroad entities have traditionally been licensed in the Industrial/Land Transportation/Business spectrum bands and thus have not been subject to the licensing requirements applicable to the interoperability and mutual aid channels. We do not propose to change the wording of the OMB-approved collection in any material or substantive manner, but we do seek to determine whether railroad police meet the statutory eligibility criteria to operate on the 700 MHz interoperability channels. If so, then only the number of respondents would change as we would expect that railroad police officers will comply with these existing statutory requirements and regulations, which are the minimum necessary to ensure effective use of the spectrum and to minimize interference potential to public safety entities, including State, local and tribal governments. Thus, requiring railroad police to obtain governmental authorization in order to operate on the 700 MHz interoperability channels would increase the number of respondents by approximately 763 entities. See ICR Reference Number: 201308-2130-009, OMB Control No. 2130-0537.

    The NPRM also seeks comment on licensing base and control stations on the interoperability and mutual aid channels. The NPRM notes that licensing base and controls stations would require frequency coordination (e.g. railroad police officers would be required to submit a license application on Form 601 demonstrating evidence of frequency coordination). Similarly, mobile-only authorizations require frequency coordination and submission of FCC form 601. Railroad entities seeking licenses in the Industrial Land Transportation and Business Pool are required to obtain coordination from certain frequency coordinators as specified in § 90.35 of the Commission's rules. However, the interoperability and mutual aid channels are subject to frequency coordination from the four certified public safety frequency coordinators as specified in § 90.20(c). OMB has already approved the information collection requirements, including frequency coordination requirement associated with Form 601. See ICR Reference Number: 201311-3060-018, OMB Control No. 3060-0798. We do not propose any substantive or material changes to the wording of the existing information collection. Instead, if we amend to rules to allow railroad police officers to license the interoperability and mutual aid channels, then the number of respondents subject to the existing information collections would increase by approximately 763 entities.

    Additionally, the NPRM notes that the 700 MHz interoperability channels are administered by State entities and/or regional planning committees. OMB has already approved the information collections associated with obtaining State/RPC concurrence to operate on the 700 MHz interoperability channels. See ICR Reference Number: 201404-3060-023, OMB Control No. 3060-1198. We do not propose any substantive or material changes to the wording of this existing information collection but if we allow railroad police to operate on these interoperability channels, then the number of respondents subject to the existing information collections would increase by approximately 763 entities.

    The NPRM also seeks comment on less burdensome alternatives to licensing, constructing and operating base stations on the interoperability and mutual aid channels. Specifically, the NPRM seeks comment on allowing railroad police officers to (1) operate mobile stations on these channels under a “blanket” licensing approach or (2) allowing public safety licensees to share their facilities with railroad police pursuant to a sharing agreement. With regard to blanket licensing, we would essentially clarify that Section 90.421 permits railroad police to operate mobile stations so long as their employer holds a PLMR license and therefore would not impose any new or modified information collections requirements. However, allowing public safety entities to “share” their facilities with railroad police would require reducing such an arrangement into writing as required by § 90.179. OMB has already approved the information collection requirements in § 90.179 and we do not propose any substantive or material changes to the wording of the existing information collection. See ICR Reference Number: 200111-3060-016, OMB Control No. 3060-0262. If we amend the eligibility rules, then the number of respondents would increase by approximately 763 entities.

    The Commission believes that applying the same information collection rules equally to public safety and railroad police entities in this context will promote interoperability and advance Congressional objectives. The Commission does not believe that the costs and/or administrative burdens associated with the rules will unduly burden small entities. The rule revisions the Commission proposes should benefit public safety and railroad police entities by giving them more flexibility, and more options for gaining access to interoperability and mutual aid spectrum. As noted above, the FCC invites comment on these new or modified information collection requirements.

    Finally, the rule amendment proposed relative to § 90.20(i) has been analyzed with respect to the Paperwork Reduction Act of 1980 and found to contain no new or modified form, information collection and/or record keeping, labeling, disclosure, or record retention requirements; and will not increase burden hours imposed on the public.

    Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof for small entities. We have evaluated our proposals in this NPRM in the context of small business entities and find no alternatives, to the benefit of small entities that would achieve our goals of facilitating interoperability between public safety entities and railroad police officers and efficient use of nationwide interoperability spectrum. Additionally, this NPRM proposes rules that are deregulatory in nature and consistent with Federal railroad interoperability mandates. Accordingly, the proposed rule changes minimize any significant economic impact on small entities.

    The NPRM also seeks comment on four alternatives that may minimize the impact on small entities, including small railroads. First, the NPRM seeks comment on issuing a mobile-only license that would allow railroad police officers to operate mobiles on the interoperability channels without having to construct and operate base and control stations. Second, the NPRM seeks comment on “blanket licensing”, an approach that would allow railroad police officers to operate on the interoperability channels provided their railroad employer already holds a license for PLMR spectrum. Third, the NPRM seeks comment on amending Section 90.421 of the Commission's rules to allow railroad police officers to operate mobiles under the license of public safety licensees. Fourth, the NPRM seeks comment on amending Section 90.179 to allow public safety entities to “share” their facilities with railroad police. Any significant alternative presented in the comments will be considered.

    Finally, we propose to amend Section 90.20 of the Commission's rules to explicitly identify the nationwide interoperability channels i.e. the VHF, UHF and 700 MHz interoperability channels, and the 800 MHz mutual aid channels. We believe that flexible licensing policies are necessary to encourage the use of the most spectrally efficient technology to meet user-defined needs. Recognizing the budgetary constraints that small public safety entities face, we seek to make explicit in the Commission's rules the flexible licensing approach that the Commission previously adopted for all of the public safety interoperability channels.

    Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    None.

    Ordering Clauses

    Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i), 4(j), 301, 302, 303, 308, 309, 316, 324, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302a, 303, 308, 309, 324, 316, 332 and 337, that this Notice of Proposed Rulemaking is hereby ADOPTED.

    It is further ordered that pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments on the NPRM on or before November 13, 2015, and reply comments on or before November 30, 2015.IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Part 90

    Radio.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer. Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend CFR 47 part 90 as follows:

    PART 90—PRIVATE LAND MOBILE RADIO SERVICES 1. The authority citation for Part 90 continues to read as follows: Authority:

    Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7) and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156.

    2. Amend § 90.20 by adding paragraphs (a)(2)(xiv) and (i) as follows:
    § 90.20 Public Safety Pool.

    (a) * * *

    (2) * * *

    (xiv) Railroad police officers are a class of users eligible to operate on the nationwide interoperability and mutual aid channels listed in paragraph (i) of this section. Eligible users include part time railroad police officers and Amtrak employees who qualify as railroad police officers under this subsection. Railroads and railroad police departments may obtain licenses for the nationwide interoperability and mutual aid channels of behalf of railroad police officers in their employ. Additionally, railroad police officers may be authorized to operate on interoperability and mutual aid channels if their employer holds a Private Land Mobile Radio (PLMR) license of any radio category, including Industrial/Business (I/B).

    (A) Railroad police officer means peace officer who is commissioned in his or her state of legal residence or state of primary employment and employed by a railroad to enforce state laws for the protection of railroad property, personnel, passengers, and/or cargo.

    (B) Commissioned means that a state official has certified or otherwise designated in writing a railroad employee as qualified under the licensing requirements of that state to act as a railroad police officer in that state.

    (C) Property means rights-of-way, easements, appurtenant property, equipment, cargo, facilities, and buildings and other structures owned, leased, operated, maintained, or transported by a railroad.

    (i) Nationwide Interoperability Channels. The nationwide interoperability channels are listed below for the VHF, UHF, 700 MHz and 800 MHz bands. (See §§ 90.20(d)(80), 90.531(b)(1), 90.617(a)(1) and 90.720). Any licensee holding a Part 90 public safety license may operate hand-held and vehicular mobile units on these channels without needing a separate authorization. Base stations or control stations operating on these channels must be licensed separately:

    VHF Interoperability channel
  • (MHz)
  • Purpose
    151.1375 MHz (base/mobile) Tactical. 154.4525 MHz (base/mobile) Tactical. 155.7525 MHz (base/mobile) Calling. 158.7375 MHz (base/mobile) Tactical. 159.4725 MHz (base/mobile) Tactical.
    VHF Mutual aid
  • channel
  • (MHz)
  • Purpose
    220.8025 MHz (base/mobile) Tactical. 220.8075 MHz (base/mobile) Tactical. 220.8125 MHz (base/mobile) Tactical. 220.8175 MHz (base/mobile) Tactical. 220.8225 MHz (base/mobile) Tactical. 220.8275 MHz (base/mobile) Tactical. 220.8325 MHz (base/mobile) Tactical. 220.8375 MHz (base/mobile) Tactical. 220.8425 MHz (base/mobile) Tactical. 220.8475 MHz (base/mobile) Tactical.
    UHF Interoperability channel
  • (MHz)
  • Purpose
    453.2125 MHz (base/mobile) Calling. 458.2125 MHz (mobile) 453.4625 MHz (base/mobile) Tactical. 458.4625 MHz (mobile) 458.7125 MHz (mobile) Tactical. 453.7125 MHz (base/mobile) 453.8625 MHz (base/mobile) Tactical. 458.8625 MHz (mobile)
    700 MHz Interoperability channel
  • (MHz)
  • Purpose
    769.14375 MHz (base/mobile) Tactical. 799.14375 MHz (mobile) 769.24375 MHz (base/mobile) Calling. 799.24375 MHz (mobile) 769.39375 MHz (base/mobile) Tactical. 769.39375 MHz (mobile) 769.49375 MHz (base/mobile) Tactical. 799.49375 MHz (mobile) 769.64375 MHz (base/mobile) Tactical. 799.64375 MHz (mobile) 769.74375 MHz (base/mobile) Tactical. 799.74375 MHz (mobile) 769.99375 MHz (base/mobile) Tactical. 799.99375 MHz (mobile) 770.14375 MHz (base/mobile) Tactical. 800.14375 MHz (mobile) 770.24375 MHz (base/mobile) Tactical. 800.24375 MHz (mobile) 770.39375 MHz (base/mobile) Tactical. 800.39375 MHz (mobile) 770.49375 MHz (base/mobile) Tactical. 800.49375 MHz (mobile) 770.64375 MHz (base/mobile) Tactical. 800.64375 MHz (mobile) 770.89375 MHz (base/mobile) Tactical. 800.89375 MHz (mobile) 770.99375 MHz (base/mobile) Tactical. 800.99375 MHz (mobile) 773.00625 MHz (base/mobile) Tactical. 803.00625 MHz (mobile) 773.10625 MHz (base/mobile) Tactical. 803.10625 MHz (mobile) 773.25625 MHz (base/mobile) Calling. 803.25625 MHz (mobile) 773.35625 MHz (base/mobile) Tactical. 803.35625 MHz (mobile) 773.50625 MHz (base/mobile) Tactical. 803.50625 MHz (mobile) 773.60625 MHz (base/mobile) Tactical. 803.60625 MHz (mobile) 773.75625 MHz (base/mobile) Tactical. 803.75625 MHz (mobile) 773.85625 MHz (base/mobile) Tactical. 803.85625 MHz (mobile) 774.00625 MHz (base/mobile) Tactical. 804.00625 MHz (mobile) 774.10625 MHz (base/mobile) Tactical. 804.10625 MHz (mobile) 774.25625 MHz (base/mobile) Tactical. 804.25625 MHz (mobile) 774.35625 MHz (base/mobile) Tactical. 804.35625 MHz (mobile) 774.50625 MHz (base/mobile) Tactical. 804.50625 MHz (mobile) 774.60625 MHz (base/mobile) Tactical. 804.60625 MHz (mobile) 774.85625 MHz (base/mobile) Tactical. 804.85625 MHz (mobile)
    800 MHz mutual aid channel
  • (MHz)
  • Purpose
    851.0125 MHz (base/mobile) Calling. 806.0125 MHz (mobile) 851.5125 MHz (base/mobile) Tactical. 806.5125 MHz (mobile) 852.0125 MHz (base/mobile) Tactical. 807.0125 MHz (mobile) 852.5125 MHz (base/mobile) Tactical. 807.0125 MHz (mobile) 853.0125 MHz (base/mobile) Tactical. 808.0125 MHz (mobile)
    3. Amend § 90.720 by revising paragraphs (a) introductory text, (a)(2) and (b) as follows:
    § 90.720 Channels available for public safety/mutual aid.

    (a) Part 90 licensees who meet the eligibility criteria of §§ 90.20(a)(1), 90.20(a)(2)(i), 90.20(a)(2)(ii), 90.20(a)(2)(iii), 90.20(a)(2)(iv), 90.20(a)(2)(vii), 90.20(a)(2)(ix), 90.20(a)(2)(xiii) or 90.20(a)(2)(xiv) are authorized by this rule to use mobile and/or portable units on Channels 161-170 throughout the United States, its territories, and possessions to transmit:

    (2) Communications to facilitate interoperability among entities eligible under §§ 90.20(a)(1), 90.20(a)(2)(i), 90.20(a)(2)(ii), 90.20(a)(2)(iii), 90.20(a)(2)(iv), 90.20(a)(2)(vii), 90.20(a)(2)(ix), 90.20(a)(2)(xiii) and 90.20(a)(2)(xiv); or

    (b) Any Government entity and any non-Government entity eligible to obtain a license under §§ 90.20(a)(1), 90.20(a)(2)(i), 90.20(a)(2)(ii), 90.20(a)(2)(iii), 90.20(a)(2)(iv), 90.20(a)(2)(vii), 90.20(a)(2)(ix), 90.20(a)(2)(xiii) or 90.20(a)(2)(xiv) is also eligible to obtain a license for base/mobile operations on Channels 161 through 170. Base/mobile or base/portable communications on these channels that do not relate to the immediate safety of life or to communications interoperability among the above-specified entities, may only be conducted on a secondary non-interference basis to such communications.

    [FR Doc. 2015-24441 Filed 9-28-15; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 150306230-5230-01] RIN 0648-BE88 List of Fisheries for 2016 AGENCY:

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

    ACTION:

    Proposed rule.

    SUMMARY:

    The National Marine Fisheries Service (NMFS) publishes its proposed List of Fisheries (LOF) for 2016, as required by the Marine Mammal Protection Act (MMPA). The proposed LOF for 2016 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must classify each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of mortality and serious injury of marine mammals that occurs incidental to each fishery. The classification of a fishery on the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan (TRP) requirements. In addition, NMFS begins publishing online fact sheets for Category III fisheries.

    DATES:

    Comments must be received by October 29, 2015.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2015-0055, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal

    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0055,

    2. Click the “Comment Now!” icon, complete the required fields

    3. Enter or attach your comments.

    Mail: Submit written comments to Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

    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, etc.), 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:

    Lisa White, Office of Protected Resources, 301-427-8494; Allison Rosner, Greater Atlantic Region, 978-281-9328; Jessica Powell, Southeast Region, 727-824-5312; Elizabeth Petras, West Coast Region (CA), 206-526-6155; Brent Norberg, West Coast Region (WA/OR), 206-526-6550; Bridget Mansfield, Alaska Region, 907-586-7642; Nancy Young, Pacific Islands Region, 808-725-5156. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.

    SUPPLEMENTARY INFORMATION: What is the list of fisheries?

    Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(1)(C)).

    How does NMFS determine in which category a fishery is placed?

    The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

    Fishery Classification Criteria

    The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

    Tier 1: Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock. If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock will be placed in Category III (unless those fisheries interact with other stock(s) in which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

    Tier 2: Tier 2 considers fishery-specific mortality and serious injury for a particular stock.

    Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level (i.e., frequent incidental mortality and serious injury of marine mammals).

    Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level (i.e., occasional incidental mortality and serious injury of marine mammals).

    Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level (i.e., a remote likelihood of or no known incidental mortality and serious injury of marine mammals).

    Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

    Because fisheries are classified on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Stocks driving a fishery's classification are denoted with a superscript “1” in Tables 1 and 2.

    Other Criteria That May Be Considered

    The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory definition of a Category II fishery: “In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is `frequent,' `occasional,' or `remote' by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2).

    Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

    How does NMFS determine which species or stocks are included as incidentally killed or injured in a fishery?

    The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs reviewed for the 2016 LOF generally summarizes data from 2008-2012. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e. MMPA reports), and anecdotal reports from that time period. In some cases, more recent information may be available, but in an effort to be consistent with the most recent SARs and across the LOF, NMFS typically restricts the analysis to data within the five-year time period summarized in the current SAR.

    For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the five-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring (e.g., fishery has low observer coverage and stranding network data include fisheries that cannot be attributed to a specific fishery) species and stocks may be retained for longer than five years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock.

    Where does NMFS obtain information on the level of observer coverage in a fishery on the LOF?

    The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are generally not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: Level of observer coverage, target species, levels of fishing effort, spatial and temporal distribution of fishing effort, characteristics of fishing gear and operations, management and regulations, and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources Web site at: http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage levels in Category I, II, and III fisheries can be found in the fishery fact sheets on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/st4/nop/.

    How do I find out if a specific fishery is in Category I, II, or III?

    This rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable take reduction plans (TRPs) or take reduction teams (TRTs).

    Are high seas fisheries included on the LOF?

    Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 by a “*” after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

    HSFCA permits are valid for five years, during which time Fishery management plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at: http://www.nmfs.noaa.gov/ia/permits/highseas.html.

    Where can I find specific information on fisheries listed on the LOF?

    Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF, the basis for the fishery's initial classification, classification changes to the fishery, changes to the list of species and/or stocks incidentally killed or injured in the fishery, fishery gear and methods used, observer coverage levels, fishery management and regulation, and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html, linked to the “List of Fisheries by Year” table. NMFS is developing similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets is taking significant time to complete. NMFS will begin posting Category III fishery fact sheets online with the proposed 2016 LOF.

    Am I required to register under the MMPA?

    Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

    How do I register and receive my MMAP authorization certificate?

    NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials. In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the Greater Atlantic Region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year. Certificates may also be obtained by visiting the Greater Atlantic Regional Office Web site (http://www.greateratlantic.fisheries.noaa.gov/Protected/mmp/mmap/). In the Southeast Region, NMFS will issue vessel or gear owners notification of registry and vessel or gear owners may receive their authorization certificate by contacting the Southeast Regional Office at 727-209-5952 or by visiting the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/) and following the instructions for printing the certificate.

    The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES).

    How do I renew my registration under the MMAP?

    In Alaska regional and Greater Atlantic regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. In Pacific Islands regional fisheries, vessel or gear owners receive an authorization certificate by January 1 for state fisheries and with their permit renewal for federal fisheries. In West Coast regional fisheries, vessel or gear owners receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in fisheries in these regions and have not received authorization certificates by January 1 or with renewed fishing licenses must contact the appropriate NMFS Regional Office (see FOR FURTHER INFORMATION CONTACT).

    In Southeast regional fisheries, vessel or gear owners' registrations are automatically renewed and participants will receive a letter in the mail by January 1 instructing them to contact the Southeast Regional Office to have an authorization certificate mailed to them or to visit the Southeast Regional Office Web site (http://sero.nmfs.noaa.gov/protected_resources/marine_mammal_authorization_program/) to print their own certificate.

    Am I required to submit reports when I kill or injure a marine mammal during the course of commercial fishing operations?

    In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.

    Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at: http://www.nmfs.noaa.gov/pr/interactions/mmap/#form or by contacting the appropriate Regional office (see FOR FURTHER INFORMATION). Forms may be submitted via any of the following means: (1) Online using the electronic form, (2) emailed as an attachment to [email protected], (3) faxed to the NMFS Office of Protected Resources at 301-713-0376, or (4) mailed to the NMFS Office of Protected Resources (mailing address is provided on the postage-paid form that can be printed from the Web address listed above). Reporting requirements and procedures can be found in 50 CFR 229.6.

    Am I required to take an observer aboard my vessel?

    Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)) will not be exempted from observer requirements, regardless of their size. Observer requirements can be found in 50 CFR 229.7.

    Am I required to comply with any marine mammal take reduction plan regulations?

    Table 4 in this rule provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: http://www.nmfs.noaa.gov/pr/interactions/trt/teams.html. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

    Where can I find more information about the LOF and the MMAP?

    Information regarding the LOF and the Marine Mammal Authorization Program, including: registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery, and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html, or from any NMFS Regional Office at the addresses listed below:

    NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, Attn: Allison Rosner;

    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Jessica Powell;

    NMFS, West Coast Region, Seattle Office, 7600 Sand Point Way NE., Seattle, WA 98115, Attn: Elizabeth Petras or Brent Norberg, Protected Resources Division;

    NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Bridget Mansfield; or

    NMFS, Pacific Islands Regional Office, Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818, Attn: Nancy Young.

    Sources of Information Reviewed for the 2016 LOF

    NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.

    NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports through the Marine Mammal Authorization Program, reports to the SRGs, conference papers, FMPs, and ESA documents.

    The LOF for 2016 was based on, among other things, stranding data; fisher self-reports; and SARs, primarily the 2014 SARs, which are generally based on data from 2008-2012. The final SARs referenced in this LOF include: 2013 (79 FR 49053, August 19, 2014) and 2014 (80 FR 50599, August 20, 2015). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

    Summary of Changes to the LOF for 2016

    The following summarizes proposed changes to the LOF for 2016, including the fisheries listed in the LOF, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. The proposed LOF for 2016 proposes three re-classifications of the fisheries provided in the LOF for 2015. NMFS proposes changes to the list of species and/or stocks killed or injured in certain fisheries and the estimated number of vessels/persons in certain fisheries, as well as certain administrative changes. Additionally, NMFS proposes adding two Category III fisheries to the LOF and removing six fisheries from the LOF. Most Category III fisheries on the LOF have never been described in the LOF. While detailed information describing each fishery in the LOF is included within the SARs, a Fishery Management Plan, or a TRP, or by state agencies, general descriptive information is important to include in the LOF for improved clarity. NMFS is developing Category III fishery fact sheets that will be available online at: http://www.nmfs.noaa.gov/pr/interactions/fisheries/lof.html. NMFS is requesting public comment on fact sheet content. The classifications and definitions of U.S. commercial fisheries for 2016 are identical to those provided in the LOF for 2015 with the proposed changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), BSAI (Bering Sea and Aleutian Islands), CA (California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).

    Commercial Fisheries in the Pacific Ocean Classification of Fisheries

    NMFS proposes to reclassify the Category III Alaska Bering Sea/Aleutian Island Pacific Cod Longline Fishery as Category II. Category II classification for this fishery is driven by a 2012 take of Gulf of Alaska, Bering Sea/Aleutian Islands transient stock of killer whales. Based on the most recent five years of available information, annual mortality and serious injury of the Gulf of Alaska, Bering Sea/Aleutian Islands transient stock of killer whales across all fisheries is 1 per year, which is 17 percent of the PBR of 5.87. Mortality and serious injury of this stock by this fishery is 0.2 per year, which is 3.41 percent of the PBR of 5.87 (Helker et al., 2015). Mortality and serious injury levels greater than 1 percent and less than 50 percent of PBR meet the Category II threshold. Therefore, NMFS proposes to reclassify the Alaska Bering Sea/Aleutian Island Pacific Cod Longline Fishery as a Category II fishery.

    NMFS proposes to reclassify the Category II Alaska Kodiak Salmon Purse Seine Fishery as Category III. No mortalities or serious injuries to marine mammal stocks by this fishery have been documented during the most recent five years of available information. Therefore, NMFS proposes to reclassify the Alaska Kodiak Salmon Purse Seine Fishery as a Category III fishery.

    NMFS proposes to reclassify the Category II Alaska Cook Inlet Salmon Purse Seine Fishery as Category III. No mortalities or serious injuries to marine mammal stocks by this fishery have been documented during the most recent five years of available information. Therefore, NMFS proposes to reclassify the Alaska Cook Inlet Salmon Purse Seine Fishery as a Category III fishery.

    Addition of Fisheries

    NMFS proposes to add the CA sea cucumber trawl fishery to the LOF as Category III. NMFS reviewed the recently published Magnuson-Stevens Fishery Conservation and Management Act List of Authorized Fisheries and Gear (79 FR 76914, December 23, 2014) and spoke with the California Department of Fish and Wildlife (CDF&W) and determined that this fishery was not included in the MMPA LOF. This is one of two gear types authorized by the state of California to commercially harvest sea cucumber. Most of the effort with trawls occurs in southern California. NMFS proposes to list this fishery as Category III analogous to the WA/OR/CA shrimp trawl fishery because the fisheries use similar fishing techniques, habitat, and gear. There were 16 permits issued for this fishery in 2013.

    NMFS proposes to add the WA/OR Mainstem Columbia River eulachon gillnet fishery to the LOF as Category III. NMFS spoke with the Washington Department of Fish and Wildlife (WDF&W) and Oregon Department of Fish and Wildlife (OD&W) and determined this fishery was not previously on the LOF. Eulachon smelt were historically harvested in target fisheries in the Columbia River. As a result of the eulachon listing under the Endangered Species Act in 2010 commercial harvest was prohibited. The commercial fishery using dip net gear was closed in 2011 through 2013. In 2014 and 2015 a small-scale, research-based commercial eulachon fishery using gillnet gear was re-established to collect biological and catch per unit effort data. NMFS proposes to list this as Category III by analogy to other gillnet fisheries because the fisheries use similar fishing techniques, habitat, and gear. There are currently 15 participants in this fishery.

    Removal of Fisheries

    NMFS proposes to remove the Category III WA/OR herring, smelt, shad, sturgeon, bottom fish, mullet, perch, rockfish gillnet fishery from the LOF. NMFS spoke with WDF&W and ODF&W and was advised that gillnet is not legal for any ocean fishing off of Washington or Oregon.

    NMFS proposes to remove the Category III WA/OR smelt, herring dip net fishery from the LOF. Harvesting smelt and herring off Oregon is allowed but this gear type is not utilized. Herring harvest off Washington is closed. Smelt can be harvested off Washington using dip net gear; however, there are currently no participants in the fishery.

    Fishery Name and Organizational Changes and Clarification

    NMFS proposes to rename the Category III “WA (all species) beach seine or drag seine” as the “WA/OR Lower Columbia River salmon seine” fishery. Drag seine is not an authorized gear in Oregon. While authorized in Washington, it is not active. In 2014, a pilot commercial seine fishery was implemented in the mainstem Columbia River downstream of Bonneville Dam. The pilot fishery was conducted to address research-related questions regarding use of this gear type in a new commercial fishery. A total of 10 fishers using seine gear (4 purse seine and 6 beach seine) were permitted for the 2014 pilot fishery.

    NMFS proposes to split three fisheries from the Category III “AK North Pacific halibut, AK bottom fish, WA/OR/CA albacore, groundfish, bottom fish, CA halibut non-salmonid troll” fishery and rename them as: “WA/OR/CA albacore surface hook and line/troll” fishery, “CA halibut hook and line/handline” fishery, and “CA White seabass hook and line/handline” fishery and remove the remaining fisheries in the group. The WA/OR/CA albacore surface hook and line/troll fishery uses surface hook and line and/or troll gear and is managed under the Fishery Management Plan (FMP) of U.S. West Coast Fisheries for Highly Migratory Species. There is effort in this fishery along the entire coast and landings can be made in any of the three states. The number of vessels making landing in 2013 was 705. The CA halibut hook and line/handline fishery is managed by the CDF&W and is one of three gear types authorized by the state of California to commercially harvest CA halibut (along with gillnet and trawl). It is a not restrictive fishery and no special permits are required. Most landings occur in the San Francisco Bay area. The CA white seabass hook and line/handline fishery is managed by the CDF&W and is one of two gear types authorized by the state of California to commercially harvest CA white seabass (along with gillnets). There are no special permits required in this fishery. Most effort occurs in Southern California.

    NMFS proposes to combine the Category III “CA anchovy, mackerel, sardine purse seine” and “WA/OR sardine purse seine” fisheries and name it the “CA/OR/WA anchovy, mackerel, sardine purse seine” fishery. These species are managed under the Coastal Pelagic Species FMP developed by the Pacific Fishery Management Council and can be harvested along the entire coast.

    NMFS proposes to rename the Category III “WA/OR salmon net pens” fishery as the “WA salmon net pen” fishery. There are no commercial non-tribal salmon net pens in Oregon.

    NMFS proposes to rename (by revising, separating, and combining) the Category III “WA/OR sea urchin, other clam, octopus, oyster, sea cucumber, scallop, ghost shrimp, dive, hand/mechanical collection” and “CA sea urchin” fisheries to become the “WA/OR bait shrimp, clam hand, dive or mechanical collection” and “OR/CA sea urchin, sea cucumber dive, hand/mechanical collection” fisheries. Some of the target species listed in the “WA/OR sea urchin, other clam, octopus, oyster, sea cucumber, scallop, ghost shrimp, dive, hand/mechanical collection” have changed, have been prohibited, or are no longer active so the new name reflects target species in the WA/OR fishery. NMFS is proposing to combine the OR and CA components of the sea urchin and sea cucumber dive, hand/mechanical collections because these fisheries are functionally equivalent.

    NMFS proposes to rename the Category III “WA shellfish aquaculture” fishery as the “WA/OR shellfish aquaculture” fishery. There are a number of shellfish being raised in aquaculture facilities in Oregon and the fisheries are functionally equivalent. There are 23 companies engaged in shellfish aquaculture in Washington and Oregon.

    Number of Vessels/Persons

    NMFS proposes to update the estimated number of vessels/persons in the Pacific Ocean (Table 1) as follows. Fisheries are labeled with their name on the proposed 2016 LOF:

    Category Fishery Number of
  • vessels/persons
  • (Final 2015 LOF)
  • Number of
  • vessels/persons
  • (Proposed 2016 LOF)
  • I HI deep-set longline 128 135 I CA thresher shark/swordfish drift gillnet (≥14 in mesh) 19 18 II CA spot prawn trap 28 25 II HI shallow-set longline 18 15 II American Samoa longline 25 22 II HI shortline 6 9 III CA set gillnet (mesh size <3.5 in) 304 296 III HI inshore gillnet 42 36 III WA/OR Lower Columbia River salmon seine 235 10 III HI lift net 21 17 III HI throw net, cast net 20 23 III HI seine net 21 24 III American Samoa tuna troll 7 13 III HI troll 1,755 2,117 III HI rod and reel 221 322 III HI kaka line 24 15 III HI vertical line 6 3 III CA halibut bottom trawl 53 47 III CA/OR coonstripe shrimp pot 10 36 III CA rock crab pot 150 124 III CA spiny lobster 198 194 III HI crab trap 7 5 III HI fish trap 5 9 III HI shrimp trap 6 10 III HI Kona crab loop net 35 33 III American Samoa bottomfish handline 14 17 III HI bottomfish handline 578 496 III HI inshore handline 376 357 III HI pelagic handline 484 534 III CA swordfish harpoon 30 6 III HI bullpen trap <3 3 III HI handpick 58 46 III HI lobster diving 23 19 III HI spearfishing 159 163
    List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean

    NMFS proposes to add the southwest Alaska stock of northern sea otters to the list of species and/or stocks killed or injured in the Category II Alaska Peninsula/Aleutian Islands salmon set gillnet fishery. In 2014 a sea otter pup was documented injured by this fishery. The animal was rescued and rehabbed. This is the first reported take of northern sea otters in this fishery.

    NMFS proposes to add the U.S. stock of California sea lions, unknown stock of harbor porpoise, unknown stock of harbor seals, California breeding stock of northern elephant seals, unknown stock of Steller sea lions to the species and/or stocks incidentally killed or injured by the Category III CA halibut bottom trawl fishery.

    NMFS proposes to add the Northwestern Hawaiian Islands stock of false killer whales to the list of species and/or stocks killed or injured in the Category I Hawaii deep-set longline fishery. The Draft 2014 SAR indicates an average annual mortality and serious injury level of 0.4 per year from 2008-2012, which is 15.4 percent of the PBR of 2.6 (Carretta et al., 2015).

    NMFS proposes to remove the Palmyra Atoll stock of false killer whales from the list of species and/or stocks killed or injured in the Category I Hawaii deep-set longline fishery. The mortality and serious injury estimate in the fishery for 2008-2012 is zero (McCracken, 2014).

    NMFS proposes to add notation “1” to indicate that the Main Hawaiian Islands (MHI) insular stock of false killer whales, along with the HI pelagic stock of false killer whales, is also driving the Hawaii deep-set longline fishery's Category I classification. The tier analysis is as follows: Tier 1: Data from the Draft 2014 SAR (2008-2012) indicate that total fishery-related mortality and serious injury of this stock is 300 percent of PBR (0.9/0.3) and because this exceeds 10 percent of the stock's PBR, we proceed to Tier 2. Tier 2: The Hawaii deep-set longline fishery's five-year average mortality and serious injury of this stock from 2008-2012 is 300 percent of the stock's PBR (0.9/0.3) (Carretta et al., 2015). This exceeds 50 percent of the stock's PBR level, and a Category I classification is warranted. We note that the False Killer Whale Take Reduction Plan (77 FR 71260, November 29, 2012) was not in effect during the time period for which bycatch is estimated and reported here (2008-2012). Based on preliminary bycatch estimates for 2013, observer data for 2014, and a revision to the stock boundary that will be included in the draft 2015 SAR that reduces the spatial overlap between the stock and the fishery, we anticipate future impacts to the stock as discussed in the recent MMPA 101(a)(5)(E) permit (79 FR 62105, October 16, 2014) and supporting Negligible Impact Determination.

    NMFS proposes to add the Gulf of Alaska, BSAI transient stock of killer whales to the list of species and/or stocks killed or injured in the proposed Category II Alaska BSAI Pacific cod longline fishery. A killer whale was injured by this fishery in 2012 (Helker et. al., 2015). NMFS proposes to add notation “1” to indicate that this stock is driving the fishery's classification (see tier analysis in Classification of Fisheries section above).

    NMFS proposes to remove notation “1” from the Central North Pacific stock of humpback whales under the proposed Category III fisheries: Alaska Cook Inlet salmon purse seine and Alaska Kodiak salmon purse seine. No mortalities or serious injuries of this stock by these fisheries have been documented during the most recent five years of available information.

    Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean Fishery Name and Organizational Changes and Clarification

    NMFS proposes to rename and change the geographic scope of the Category III “U.S. Mid-Atlantic offshore surf clam/quahog dredge” fishery. This fishery is proposed to be the “New England and Mid-Atlantic offshore surf clam/quahog dredge” fishery. The proposed fishery definition will include all offshore quahog and surf clam dredges operating from the Canada-Maine border through Cape Hatteras, to better reflect the full distribution of this fishery as detailed in the Surf Clam and Ocean Quahog FMP developed by the Mid-Atlantic Fisheries Management Council. This updated definition will also include quahog non-hydraulic dredges targeting mahogany quahog in Maine state waters, which are managed by the state of Maine. Based on similarity to the current Mid-Atlantic offshore surf clam/quahog dredge fishery and other Category III shellfish dredge fisheries (Gulf of Maine, U.S. Mid-Atlantic sea scallop dredge and Gulf of Maine mussel dredge), we propose to maintain the Category III designation with this geographic expansion and name change.

    Number of Vessels/Persons

    NMFS updates the estimated number of vessels/persons in the Atlantic Ocean, Gulf of Mexico, and Caribbean (Table 2) as follows:

    Category Fishery Number of
  • vessels/persons
  • (Final 2015 LOF)
  • Number of
  • vessels/persons
  • (Proposed 2016 LOF)
  • I Mid-Atlantic gillnet 5,509 4,063 I Northeast sink gillnet 4,375 4,332 I Northeast/Mid-Atlantic American lobster trap/pot 11,693 10,163 II Chesapeake Bay inshore gillnet 1,126 272 II Northeast anchored float gillnet 421 995 II Northeast drift gillnet 311 1,567 II Mid-Atlantic mid-water trawl (including pair trawl) 322 507 II Mid-Atlantic bottom trawl 631 994 II Northeast mid-water trawl 1,103 1,087 II Northeast bottom trawl 2,987 3,132 II Atlantic mixed-species trap pot 3,467 3,284 II Mid-Atlantic menhaden purse seine 5 19 II Mid-Atlantic haul/beach seine 565 243 II Virginia pound net 67 47
    List of Species and/or Stocks Incidentally Killed or Injured in the Atlantic Ocean, Gulf of Mexico, and Caribbean

    NMFS proposes to add the Gulf of Maine/Bay of Fundy stock of harbor porpoise and the Gulf of Mexico stock of pygmy sperm whale to the list of marine mammal species and/or stocks incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery. One harbor porpoise was observed killed by this fishery in 2013 in the Mid-Atlantic Bight (Garrison and Stokes, 2014). This is the first recorded harbor porpoise caught in this fishery; therefore, average annual mortality and injury estimates have not yet been calculated. One pygmy sperm whale was observed injured by this fishery in 2013 (Garrison and Stokes, 2014).

    NMFS proposes to add the Western North Atlantic stock of Risso's dolphin to the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Northeast bottom trawl fishery. One Risso's dolphin from the Western North Atlantic stock was observed injured by this fishery in 2010 (Waring, et. al., 2015).

    NMFS proposes to add the central Georgia estuarine system stock of bottlenose dolphin to the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Atlantic blue crab trap/pot fishery. One bottlenose dolphin from the central Georgia estuarine system stock was observed injured by this fishery in 2011 (Waring, et. al., 2015).

    NMFS proposes to remove the Western North Atlantic stocks of Risso's dolphin and white-sided dolphin from the list of marine mammal species and/or stocks incidentally killed or injured in the Category I Mid-Atlantic gillnet fishery. The last documented takes of these species were in 2007. There have not been any observed takes of these species in this fishery in the most recent five-year period analyzed for this LOF. During 2008-2012, the estimated observer coverage was 3, 3, 4, 2, and 2 percent respectively.

    NMFS proposes to remove the Western North Atlantic stocks of common dolphin, long-finned pilot whale, and short-finned pilot whale from the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Mid-Atlantic mid-water trawl fishery. There have not been any observed takes of these species in this fishery in the most recent five-year period analyzed for this LOF. During 2008-2012, the estimated observer coverage (measured in trips) was 4, 13.2, 25, 41, and 21 percent respectively. Observer coverage for 2010-2012 includes both observers and at-sea monitors.

    NMFS proposes to remove the Western North Atlantic stocks of white-sided dolphin, long-finned pilot whale, and short-finned pilot whale from the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Mid-Atlantic bottom trawl fishery. There have not been any observed takes of these species in this fishery in the most recent five-year period analyzed for this LOF. During the years 2008-2012, estimated observer coverage (measured in trips) for each year was as follows: Targeting mixed groundfish species: 3, 5, 5, 7, and 5 percent respectively; targeting Loligo squid between: 2, 7, 8, 11, and 4 percent respectively; and domestic trips targeting Atlantic mackerel fishery: 0, 8, 11, 8, and 20 percent respectively.

    NMFS proposes to remove the Western North Atlantic stocks of white-sided dolphin and short-finned pilot whale from the list of marine mammal species and/or stocks incidentally killed or injured in the Category II Northeast mid-water trawl fishery. There have not been any observed takes of these species in this fishery in the most recent five-year period analyzed for this LOF. During 2008-2012, the estimated observer coverage (trips) was 19.92, 42, 53, 41, and 45 percent respectively.

    NMFS proposes to remove the Western North Atlantic stock of short-finned pilot whale from the list of marine mammal species and/or stock incidentally killed or injured in the Category II Northeast bottom trawl fishery. There have not been any observed takes of this species in this fishery in the most recent five-year period analyzed for this LOF. During 2008-2012, the estimated observer coverage (measured in trips) was 8, 9, 16, 26, and 17 percent respectively. Observer coverage for 2010-2012 includes both observers and at-sea monitors.

    Commercial Fisheries on the High Seas Removal of Fisheries

    NMFS proposes to remove the following Category II high seas fisheries from the List of Fisheries: (1) Western Pacific Pelagic Trawl, (2) Pacific Highly Migratory Species Liners, not elsewhere included (NEI), (3) South Pacific Albacore Troll Liners (NEI), and (4) Western Pacific Pelagic Liners (NEI). These fisheries categories are no longer authorized under the HSFCA.

    Number of Vessels/Persons

    NMFS proposes to update the estimated number of HSFCA permits in multiple high seas fisheries for multiple gear types (Table 3). The proposed updated numbers of HSFCA permits reflect the current number of permits in the NMFS National Permit System database, with the exception of the Western Pacific Pelagic HI deep-set and shallow-set component longline fisheries. The HSFCA permit does not distinguish between deep and shallow-set; therefore, the estimated number of participants from Table 1 for only these fisheries is used. NMFS proposes to update the estimated number of HSFCA permits as follows:

    Category Fishery Number of
  • HSFCA
  • permits
  • (Final 2015 LOF)
  • Number of
  • HSFCA
  • permits
  • (Proposed 2016 LOF)
  • I Atlantic Highly Migratory Species Longline 83 86 I Western Pacific Pelagic (HI Deep-set component) 128 135 I Pacific Highly Migratory Species Drift Gillnet 4 5 II South Pacific Tuna Fisheries Purse Seine 38 39 II South Pacific Albacore Troll Longline 13 15 II Western Pacific Pelagic (HI Shallow-set component) 18 15 II Atlantic Highly Migratory Species Handline/Pole and Line 2 3 II Pacific Highly Migratory Species Handline/Pole and Line 41 50 II South Pacific Albacore Troll Handline/Pole and Line 8 9 II Western Pacific Pelagic Handline/Pole and Line 3 5 II South Pacific Albacore Troll 35 38 II South Pacific Tuna Fisheries Troll 3 5 II Western Pacific Pelagic Troll 19 21 III Pacific Highly Migratory Species Longline 100 126 III Pacific Highly Migratory Species Troll 253 243
    List of Fisheries

    The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists commercial fisheries on the high seas; and Table 4 lists fisheries affected by TRPs or TRTs.

    In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisher used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in SUPPLEMENTARY INFORMATION).

    For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously in this rule, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

    Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (i.e. MMPA reports), and anecdotal reports. The best available scientific information included in these reports is based on data through 2012. This list includes all species and/or stocks known to be killed or injured in a given fishery but also includes species and/or stocks for which there are anecdotal records of a mortality or injury. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports (i.e., MMPA reports) may not be verified. In Tables 1 and 2, NMFS has designated those species/stocks driving a fishery's classification (i.e., the fishery is classified based on mortalities and serious injuries of a marine mammal stock that are greater than or equal to 50 percent [Category I], or greater than 1 percent and less than 50 percent [Category II], of a stock's PBR) by a “1” after the stock's name.

    In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (i.e., fishing techniques, gear types, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by a “2” after the fishery's name.

    There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the exclusive economic zone (EEZ) boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.

    Table 1—List of Fisheries—Commercial Fisheries in the Pacific Ocean Fishery description Estimated number of
  • vessels/
  • persons
  • Marine mammal species
  • and/or stocks incidentally
  • killed or injured
  • CATEGORY I LONGLINE/SET LINE FISHERIES: HI deep-set longline * ⁁ 135 Bottlenose dolphin, HI Pelagic. False killer whale, MHI Insular.1 False killer whale, HI Pelagic.1 False killer whale, NWHI. Pantropical spotted dolphin, HI. Risso's dolphin, HI. Short-finned pilot whale, HI. Sperm whale, HI. Striped dolphin, HI. GILLNET FISHERIES: CA thresher shark/swordfish drift gillnet (≥14 in mesh) * 18 Bottlenose dolphin, CA/OR/WA offshore. California sea lion, Humpback whale, CA/OR/WA. Long-beaked common dolphin, CA. Minke whale, CA/OR/WA. Northern elephant seal, CA breeding. Northern right-whale dolphin, CA/OR/WA. Pacific white-sided dolphin, CA/OR/WA. Risso's dolphin, CA/OR/WA. Short-beaked common dolphin, CA/OR/WA. Sperm Whale, CA/OR/WA.1 CATEGORY II GILLNET FISHERIES: CA halibut/white seabass and other species set gillnet (>3.5 in mesh) 50 California sea lion, U.S. Harbor seal, CA. Humpback whale, CA/OR/WA.1 Long-beaked common dolphin, CA. Northern elephant seal, CA breeding. Sea otter, CA. Short-beaked common dolphin, CA/OR/WA. CA yellowtail, barracuda, and white seabass drift gillnet (mesh size ≥3.5 in and <14 in)  2 30 California sea lion, U.S. Long-beaked common dolphin, CA. Short-beaked common dolphin, CA/OR/WA. AK Bristol Bay salmon drift gillnet 2 1,862 Beluga whale, Bristol Bay. Gray whale, Eastern North Pacific. Harbor seal, Bering Sea. Northern fur seal, Eastern Pacific. Pacific white-sided dolphin, North Pacific. Spotted seal, AK. Steller sea lion, Western U.S. AK Bristol Bay salmon set gillnet 2 979 Beluga whale, Bristol Bay. Gray whale, Eastern North Pacific. Harbor seal, Bering Sea. Northern fur seal, Eastern Pacific. Spotted seal, AK. AK Kodiak salmon set gillnet 188 Harbor porpoise, GOA.1 Harbor seal, GOA. Sea otter, Southwest AK. Steller sea lion, Western U.S. AK Cook Inlet salmon set gillnet 736 Beluga whale, Cook Inlet. Dall's porpoise, AK. Harbor porpoise, GOA. Harbor seal, GOA. Humpback whale, Central North Pacific.1 Sea otter, South Central AK. Steller sea lion, Western U.S. AK Cook Inlet salmon drift gillnet 569 Beluga whale, Cook Inlet. Dall's porpoise, AK. Harbor porpoise, GOA.1 Harbor seal, GOA. Steller sea lion, Western U.S. AK Peninsula/Aleutian Islands salmon drift gillnet 2 162 Dall's porpoise, AK. Harbor porpoise, GOA. Harbor seal, GOA. Northern fur seal, Eastern Pacific. AK Peninsula/Aleutian Islands salmon set gillnet 2 113 Harbor porpoise, Bering Sea. Northern sea otter, Southwest AK. Steller sea lion, Western U.S. AK Prince William Sound salmon drift gillnet 537 Dall's porpoise, AK Harbor porpoise, GOA.1 Harbor seal, GOA. Northern fur seal, Eastern Pacific. Pacific white-sided dolphin, North Pacific. Sea otter, South Central AK. Steller sea lion, Western U.S.1 AK Southeast salmon drift gillnet 474 Dall's porpoise, AK. Harbor porpoise, Southeast AK. Harbor seal, Southeast AK. Humpback whale, Central North Pacific.1 Pacific white-sided dolphin, North Pacific. Steller sea lion, Eastern U.S. AK Yakutat salmon set gillnet 2 168 Gray whale, Eastern North Pacific. Harbor Porpoise, Southeastern AK. Harbor seal, Southeast AK. Humpback whale, Central North Pacific (Southeast AK). WA Puget Sound Region salmon drift gillnet (includes all inland waters south of US-Canada border and eastward of the Bonilla-Tatoosh line-Treaty Indian fishing is excluded) 210 Dall's porpoise, CA/OR/WA. Harbor porpoise, inland WA.1 Harbor seal, WA inland. TRAWL FISHERIES: AK Bering Sea, Aleutian Islands flatfish trawl 32 Bearded seal, AK. Gray whale, Eastern North Pacific. Harbor porpoise, Bering Sea. Harbor seal, Bering Sea. Humpback whale, Western North Pacific.1 Killer whale, AK resident.1 Killer whale, GOA, AI, BS transient.1 Northern fur seal, Eastern Pacific. Ringed seal, AK. Ribbon seal, AK. Spotted seal, AK. Steller sea lion, Western U.S.1 Walrus, AK. AK Bering Sea, Aleutian Islands pollock trawl 102 Bearded Seal, AK. Dall's porpoise, AK. Harbor seal, AK. Humpback whale, Central North Pacific. Humpback whale, Western North Pacific. Northern fur seal, Eastern Pacific. Ribbon seal, AK. Ringed seal, AK. Spotted seal, AK. Steller sea lion, Western U.S.1 AK Bering Sea, Aleutian Islands rockfish trawl 17 Killer whale, ENP AK resident.1 Killer whale, GOA, AI, BS transient.1 POT, RING NET, AND TRAP FISHERIES: CA spot prawn pot 25 Gray whale, Eastern North Pacific. Humpback whale, CA/OR/WA.1 CA Dungeness crab pot 570 Gray whale, Eastern North Pacific. Humpback whale, CA/OR/WA.1 OR Dungeness crab pot 433 Gray whale, Eastern North Pacific. Humpback whale, CA/OR/WA.1 WA/OR/CA sablefish pot 309 Humpback whale, CA/OR/WA.1 WA coastal Dungeness crab pot 228 Gray whale, Eastern North Pacific. Humpback whale, CA/OR/WA.1 LONGLINE/SET LINE FISHERIES: AK Bering Sea, Aleutian Islands Pacific cod longline 45 Dall's Porpoise, AK Killer whale, GOA, BSAI transient.1 Northern fur seal, Eastern Pacific. Ringed seal, AK. HI shallow-set longline *  15 Blainville's beaked whale, HI. Bottlenose dolphin, HI Pelagic. False killer whale, HI Pelagic.1 Humpback whale, Central North Pacific. Kogia spp. whale (Pygmy or dwarf sperm whale), HI. Risso's dolphin, HI. Short-finned pilot whale, HI. Striped dolphin, HI. American Samoa longline.2 22 Bottlenose dolphin, unknown. Cuvier's beaked whale, unknown. False killer whale, American Samoa. Rough-toothed dolphin, American Samoa. Short-finned pilot whale, unknown. HI shortline 2 9 None documented. CATEGORY III GILLNET FISHERIES:. AK Kuskokwim, Yukon, Norton Sound, Kotzebue salmon gillnet 1,778 Harbor porpoise, Bering Sea. AK miscellaneous finfish set gillnet 54 Steller sea lion, Western U.S. AK Prince William Sound salmon set gillnet 29 Harbor seal, GOA. Sea otter, South Central AK Steller sea lion, Western U.S. AK roe herring and food/bait herring gillnet 920 None documented. CA set gillnet (mesh size <3.5 in) 296 None documented. HI inshore gillnet 36 Bottlenose dolphin, HI. Spinner dolphin, HI. WA Grays Harbor salmon drift gillnet (excluding treaty Tribal fishing) 24 Harbor seal, OR/WA coast. WA/OR Mainstem Columbia River eulchon gillnet 15 None documented. WA/OR lower Columbia River (includes tributaries) drift gillnet 110 California sea lion, U.S. Harbor seal, OR/WA coast. WA Willapa Bay drift gillnet 82 Harbor seal, OR/WA coast. Northern elephant seal, CA breeding. MISCELLANEOUS NET FISHERIES:. AK Cook Inlet salmon purse seine 83 Humpback whale, Central North Pacific. AK Kodiak salmon purse seine 376 Humpback whale, Central North Pacific. AK Southeast salmon purse seine 315 None documented in the most recent five years of data. AK Metlakatla salmon purse seine 10 None documented. AK miscellaneous finfish beach seine 2 None documented. AK miscellaneous finfish purse seine 2 None documented. AK octopus/squid purse seine 0 None documented. AK roe herring and food/bait herring beach seine 10 None documented. AK roe herring and food/bait herring purse seine 356 None documented. AK salmon beach seine 31 None documented. AK salmon purse seine (excluding salmon purse seine fisheries listed elsewhere) 936 Harbor seal, GOA Harbor seal, Prince William Sound. CA/OR/WA anchovy, mackerel, sardine seine 107 California sea lion, U.S. Harbor seal, CA. CA squid purse seine 80 Long-beaked common dolphin, CA. Short-beaked common dolphin, CA/OR/WA. CA tuna purse seine * 10 None documented. WA/OR Lower Columbia River salmon seine 10 None documented. WA/OR herring, smelt, squid purse seine or lampara 130 None documented. WA salmon purse seine 75 None documented. WA salmon reef net 11 None documented. HI lift net 17 None documented. HI inshore purse seine <3 None documented. HI throw net, cast net 23 None documented. HI seine net 24 None documented.. DIP NET FISHERIES:. CA squid dip net 115 None documented.. MARINE AQUACULTURE FISHERIES:. CA marine shellfish aquaculture unknown None documented. CA salmon enhancement rearing pen >1 None documented. CA white seabass enhancement net pens 13 California sea lion, U.S. HI offshore pen culture 2 None documented. WA salmon net pens 14 California sea lion, U.S. Harbor seal, WA inland waters. WA/OR shellfish aquaculture 23 None documented.. TROLL FISHERIES:. WA/OR/CA albacore surface hook and line/troll 705 None documented. CA halibut hook and line/handline unknown None documented. CA white seabass hook and line/handline unknown None documented. AK salmon troll 1,908 Steller sea lion, Eastern U.S. Steller sea lion, Western U.S. American Samoa tuna troll 13 None documented. CA/OR/WA salmon troll 4,300 None documented. HI troll 2,117 Pantropical spotted dolphin, HI. HI rod and reel 322 None documented. Commonwealth of the Northern Mariana Islands tuna troll 40 None documented. Guam tuna troll 432 None documented.. LONGLINE/SET LINE FISHERIES:. AK Bering Sea, Aleutian Islands rockfish longline 3 None documented. AK Bering Sea, Aleutian Islands Greenland turbot longline 4 Killer whale, AK resident. AK Bering Sea, Aleutian Islands sablefish longline 22 None documented. AK Gulf of Alaska halibut longline 855 None documented. AK Gulf of Alaska Pacific cod longline 92 Steller sea lion, Western U.S. AK Gulf of Alaska rockfish longline 25 None documented. AK Gulf of Alaska sablefish longline 295 Sperm whale, North Pacific. AK halibut longline/set line (state and Federal waters) 2,197 None documented in the most recent five years of data. AK octopus/squid longline 3 None documented. AK state-managed waters longline/setline (including sablefish, rockfish, lingcod, and miscellaneous finfish) 464 None documented. WA/OR/CA groundfish, bottomfish longline/set line 367 Bottlenose dolphin, CA/OR/WA offshore. WA/OR Pacific halibut longline 350 None documented. CA pelagic longline 1 None documented in the most recent five years of data. HI kaka line 15 None documented. HI vertical line 3 None documented.. TRAWL FISHERIES:. AK Bering Sea, Aleutian Islands Atka mackerel trawl 13 Ribbon seal, AK Steller sea lion, Western U.S. AK Bering Sea, Aleutian Islands Pacific cod trawl 72 Ringed seal, AK Steller sea lion, Western U.S. AK Gulf of Alaska flatfish trawl 36 Northern elephant seal, North Pacific. AK Gulf of Alaska Pacific cod trawl 55 Steller sea lion, Western U.S. AK Gulf of Alaska pollock trawl 67 Dall's porpoise, AK. Fin whale, Northeast Pacific. Northern elephant seal, North Pacific. Steller sea lion, Western U.S. AK Gulf of Alaska rockfish trawl 43 None documented. AK food/bait herring trawl 4 None documented. AK miscellaneous finfish otter/beam trawl 282 None documented. AK shrimp otter trawl and beam trawl (statewide and Cook Inlet) 38 None documented. AK state-managed waters of Cook Inlet, Kachemak Bay, Prince William Sound, Southeast AK groundfish trawl 2 None documented. CA halibut bottom trawl 47 California sea lion, U.S. Harbor porpoise, unknown. Harbor seal, unknown. Northern elephant seal, CA breeding. Steller sea lion, unknown. CA sea cucumber trawl 16 None documented. WA/OR/CA shrimp trawl 300 None documented. WA/OR/CA groundfish trawl 160-180 California sea lion, U.S. Dall's porpoise, CA/OR/WA. Harbor seal, OR/WA coast. Northern fur seal, Eastern Pacific. Pacific white-sided dolphin, CA/OR/WA Steller sea lion, Eastern U.S.. POT, RING NET, AND TRAP FISHERIES:. AK statewide miscellaneous finfish pot 4 None documented. AK Aleutian Islands sablefish pot 4 None documented. AK Bering Sea, Aleutian Islands Pacific cod pot 59 None documented. AK Bering Sea, Aleutian Islands crab pot 540 Gray whale, Eastern North Pacific. AK Bering Sea sablefish pot 2 None documented. AK Gulf of Alaska crab pot 381 None documented. AK Gulf of Alaska Pacific cod pot 128 Harbor seal, GOA. AK Southeast Alaska crab pot 41 Humpback whale, Central North Pacific (Southeast AK). AK Southeast Alaska shrimp pot 269 Humpback whale, Central North Pacific (Southeast AK). AK shrimp pot, except Southeast 236 None documented. AK octopus/squid pot 26 None documented. AK snail pot 1 None documented. CA/OR coonstripe shrimp pot 36 Gray whale, Eastern North Pacific. Harbor seal, CA. CA rock crab pot 124 Gray whale, Eastern North Pacific. Harbor seal, CA. CA spiny lobster 194 Gray whale, Eastern North Pacific. WA/OR/CA hagfish pot 54 None documented. WA/OR shrimp pot/trap 254 None documented. WA Puget Sound Dungeness crab pot/trap 249 None documented. HI crab trap 5 Humpback whale, Central North Pacific. HI fish trap 9 None documented. HI lobster trap <3 None documented in recent years. HI shrimp trap 10 None documented. HI crab net 4 None documented. HI Kona crab loop net 33 None documented.. HOOK-AND-LINE, HANDLINE, AND JIG FISHERIES:. AK miscellaneous finfish handline/hand troll and mechanical jig 456 None documented. AK North Pacific halibut handline/hand troll and mechanical jig 180 None documented. AK octopus/squid handline 7 None documented. American Samoa bottomfish 17 None documented. Commonwealth of the Northern Mariana Islands bottomfish 28 None documented. Guam bottomfish >300 None documented. HI aku boat, pole, and line <3 None documented. HI bottomfish handline 578 None documented in recent years. HI inshore handline 357 None documented. HI pelagic handline 534 None documented. WA groundfish, bottomfish jig 679 None documented. Western Pacific squid jig 0 None documented.. HARPOON FISHERIES:. CA swordfish harpoon 6 None documented.. POUND NET/WEIR FISHERIES:. AK herring spawn on kelp pound net 409 None documented. AK Southeast herring roe/food/bait pound net 2 None documented. HI bullpen trap 3 None documented.. BAIT PENS:. WA/OR/CA bait pens 13 California sea lion, U.S.. DREDGE FISHERIES:. Alaska scallop dredge 108 (5 AK) None documented.. DIVE, HAND/MECHANICAL COLLECTION FISHERIES:. AK abalone 0 None documented. AK clam 130 None documented. AK Dungeness crab 2 None documented. AK herring spawn on kelp 339 None documented. AK urchin and other fish/shellfish 398 None documented. HI black coral diving <3 None documented. HI fish pond 5 None documented. HI handpick 46 None documented. HI lobster diving 19 None documented. HI spearfishing 163 None documented. WA/CA kelp 4 None documented. WA/OR bait shrimp, clam hand, dive, or mechanical collection 201 None documented. OR/CA sea urchin, sea cucumber hand, dive, or mechanical collection 10 None documented. COMMERCIAL PASSENGER FISHING VESSEL (CHARTER BOAT) FISHERIES: AK/WA/OR/CA commercial passenger fishing vessel >7,000 (2,702 AK) Killer whale, unknown Steller sea lion, Eastern U.S. Steller sea lion, Western U.S. LIVE FINFISH/SHELLFISH FISHERIES: CA nearshore finfish live trap/hook-and-line 93 None documented. HI aquarium collecting 90 None documented. List of Abbreviations and Symbols Used in Table 1: AI—Aleutian Islands; AK—Alaska; BS—Bering Sea; CA—California; ENP—Eastern North Pacific; GOA—Gulf of Alaska; HI—Hawaii; MHI—Main Hawaiian Islands; OR—Oregon; WA—Washington; 1 Fishery classified based on mortalities and serious injuries of this stock, which are greater than or equal to 50 percent (Category I) or greater than 1 percent and less than 50 percent (Category II) of the stock's PBR; 2 Fishery classified by analogy; * Fishery has an associated high seas component listed in Table 3; the list of marine mammal species and/or stocks killed or injured in this fishery is identical to the list of species and/or stocks killed or injured in high seas component of the fishery, minus species and/or stocks that have geographic ranges exclusively on the high seas. The species and/or stocks are found, and the fishery remains the same, on both sides of the EEZ boundary. Therefore, the EEZ components of these fisheries pose the same risk to marine mammals as the components operating on the high seas.
    Table 2—List of Fisheries—Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean Fishery description Estimated
  • # of vessels/
  • persons
  • Marine mammal species and/or stocks incidentally killed or injured
    CATEGORY I GILLNET FISHERIES: Mid-Atlantic gillnet 4,063 Bottlenose dolphin, Northern Migratory coastal.1 Bottlenose dolphin, Southern Migratory coastal.1 Bottlenose dolphin, Northern NC estuarine system.1 Bottlenose dolphin, Southern NC estuarine system.1 Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Gray seal, WNA. Harbor porpoise, GME/BF. Harbor seal, WNA. Harp seal, WNA. Humpback whale, Gulf of Maine. Minke whale, Canadian east coast. Risso's dolphin, WNA. White-sided dolphin, WNA. Northeast sink gillnet 4,332 Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Fin whale, WNA. Gray seal, WNA. Harbor porpoise, GME/BF.1 Harbor seal, WNA. Harp seal, WNA. Hooded seal, WNA. Humpback whale, Gulf of Maine. Long-finned pilot whale, WNA. Minke whale, Canadian east coast. North Atlantic right whale, WNA. Risso's dolphin, WNA. Short-finned pilot whale, WNA. White-sided dolphin, WNA. TRAP/POT FISHERIES: Northeast/Mid-Atlantic American lobster trap/pot 10,163 Harbor seal, WNA. Humpback whale, Gulf of Maine. Minke whale, Canadian east coast. North Atlantic right whale, WNA.1 LONGLINE FISHERIES: Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline * 420 Atlantic spotted dolphin, GMX continental and oceanic. Atlantic spotted dolphin, WNA. Bottlenose dolphin, Northern GMX oceanic. Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Cuvier's beaked whale, WNA. False killer whale, WNA. Gervais beaked whale, GMX. Harbor porpoise, GME, BF. Killer whale, GMX oceanic. Kogia spp. (Pygmy or dwarf sperm whale), WNA. Long-finned pilot whale, WNA.1 Mesoplodon beaked whale, WNA. Minke whale, Canadian East coast. Pantropical spotted dolphin, Northern GMX. Pantropical spotted dolphin, WNA. Pygmy sperm whale, GMX. Risso's dolphin, Northern GMX. Risso's dolphin, WNA. Short-finned pilot whale, Northern GMX. Short-finned pilot whale, WNA.1 Sperm whale, GMX oceanic. CATEGORY II GILLNET FISHERIES: Chesapeake Bay inshore gillnet 2 272 None documented in the most recent five years of data. Gulf of Mexico gillnet 2 724 Bottlenose dolphin, GMX bay, sound, and estuarine. Bottlenose dolphin, Northern GMX coastal. Bottlenose dolphin, Western GMX coastal NC inshore gillnet 1,323 Bottlenose dolphin, Northern NC estuarine system.1 Bottlenose dolphin, Southern NC estuarine system.1 Northeast anchored float gillnet 2 995 Harbor seal, WNA. Humpback whale, Gulf of Maine. White-sided dolphin, WNA. Northeast drift gillnet 2 1,567 None documented. Southeast Atlantic gillnet 2 357 Bottlenose dolphin, Central FL coastal. Bottlenose dolphin, Northern FL coastal. Bottlenose dolphin, SC/GA coastal. Bottlenose dolphin, Southern migratory coastal Southeastern U.S. Atlantic shark gillnet 30 Bottlenose dolphin, unknown (Central FL, Northern FL, SC/GA coastal, or Southern migratory coastal). North Atlantic right whale, WNA. TRAWL FISHERIES Mid-Atlantic mid-water trawl (including pair trawl) 507 Risso's dolphin, WNA. White-sided dolphin, WNA.1 Mid-Atlantic bottom trawl 994 Bottlenose dolphin, WNA offshore. Common dolphin, WNA.1 Gray seal, WNA. Harbor seal, WNA. Risso's dolphin, WNA.1 Northeast mid-water trawl (including pair trawl) 1,087 Gray seal, WNA. Harbor seal, WNA. Long-finned pilot whale, WNA.1 Common dolphin, WNA. Northeast bottom trawl 3,132 Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Gray seal, WNA. Harbor porpoise, GME/BF. Harbor seal, WNA. Harp seal, WNA. Long-finned pilot whale, WNA. Minke whale, Canadian East Coast. Risso's dolphin, WNA. White-sided dolphin, WNA.1 Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl 4,950 Atlantic spotted dolphin, GMX continental and oceanic. Bottlenose dolphin, Charleston estuarine system. Bottlenose dolphin, Eastern GMX coastal.1 Bottlenose dolphin, GMX bay, sound, estuarine.1 Bottlenose dolphin, GMX continental shelf. Bottlenose dolphin, Northern GMX coastal. Bottlenose dolphin, SC/GA coastal.1 Bottlenose dolphin, Southern migratory coastal. Bottlenose dolphin, Western GMX coastal.1 West Indian manatee, Florida. TRAP/POT FISHERIES: Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot 2 1,282 Bottlenose dolphin, Biscayne Bay estuarine. Bottlenose dolphin, Central FL coastal. Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, FL Bay. Bottlenose dolphin, GMX bay, sound, estuarine (FL west coast portion). Bottlenose dolphin, Indian River Lagoon estuarine system. Bottlenose dolphin, Jacksonville estuarine system. Bottlenose dolphin, Northern GMX coastal Atlantic mixed species trap/pot 2 3,284 Fin whale, WNA. Humpback whale, Gulf of Maine. Atlantic blue crab trap/pot 8,557 Bottlenose dolphin, Central FL coastal.1 Bottlenose dolphin, Central GA estuarine system. Bottlenose dolphin, Charleston estuarine system.1 Bottlenose dolphin, Indian River Lagoon estuarine system.1 Bottlenose dolphin, Jacksonville estuarine system.1 Bottlenose dolphin, Northern FL coastal.1 Bottlenose dolphin, Northern GA/Southern SC estuarine system.1 Bottlenose dolphin, Northern Migratory coastal.1 Bottlenose dolphin, Northern NC estuarine system.1 Bottlenose dolphin, Northern SC estuarine system. Bottlenose dolphin, SC/GA coastal.1 Bottlenose dolphin, Southern GA estuarine system.1 Bottlenose dolphin, Southern Migratory coastal.1 Bottlenose dolphin, Southern NC estuarine system.1 West Indian manatee, FL.1 PURSE SEINE FISHERIES: Gulf of Mexico menhaden purse seine 40-42 Bottlenose dolphin, GMX bay, sound, estuarine. Bottlenose dolphin, Northern GMX coastal.1 Bottlenose dolphin, Western GMX coastal.1 Mid-Atlantic menhaden purse seine 2 19 Bottlenose dolphin, Northern Migratory coastal. Bottlenose dolphin, Southern Migratory coastal. HAUL/BEACH SEINE FISHERIES: Mid-Atlantic haul/beach seine 243 Bottlenose dolphin, Northern Migratory coastal.1 Bottlenose dolphin, Northern NC estuarine system.1 Bottlenose dolphin, Southern Migratory coastal.1 NC long haul seine 372 Bottlenose dolphin, Northern NC estuarine system.1 Bottlenose dolphin, Southern NC estuarine system. STOP NET FISHERIES: NC roe mullet stop net 13 Bottlenose dolphin, Northern NC estuarine system. Bottlenose dolphin, unknown (Southern migratory coastal or Southern NC estuarine system). POUND NET FISHERIES: VA pound net 47 Bottlenose dolphin, Northern migratory coastal. Bottlenose dolphin, Northern NC estuarine system. Bottlenose dolphin, Southern Migratory coastal.1 CATEGORY III GILLNET FISHERIES: Caribbean gillnet >991 None documented in the most recent five years of data. DE River inshore gillnet Unknown None documented in the most recent five years of data. Long Island Sound inshore gillnet Unknown None documented in the most recent five years of data. RI, southern MA (to Monomoy Island), and NY Bight (Raritan and Lower NY Bays) inshore gillnet Unknown None documented in the most recent five years of data. Southeast Atlantic inshore gillnet Unknown Bottlenose dolphin, Northern SC estuarine system. TRAWL FISHERIES: Atlantic shellfish bottom trawl >58 None documented. Gulf of Mexico butterfish trawl 2 Bottlenose dolphin, Northern GMX oceanic. Bottlenose dolphin, Northern GMX continental shelf. Gulf of Mexico mixed species trawl 20 None documented. GA cannonball jellyfish trawl 1 Bottlenose dolphin, SC/GA coastal. MARINE AQUACULTURE FISHERIES: Finfish aquaculture 48 Harbor seal, WNA. Shellfish aquaculture unknown None documented. PURSE SEINE FISHERIES: Gulf of Maine Atlantic herring purse seine >7 Harbor seal, WNA. Gray seal, WNA. Gulf of Maine menhaden purse seine >2 None documented. FL West Coast sardine purse seine 10 Bottlenose dolphin, Eastern GMX coastal. U.S. Atlantic tuna purse seine * 5 Long-finned pilot whale, WNA. Short-finned pilot whale, WNA. LONGLINE/HOOK-AND-LINE FISHERIES: Northeast/Mid-Atlantic bottom longline/hook-and-line >1,207 None documented. Gulf of Maine, U.S. Mid-Atlantic tuna, shark swordfish hook-and-line/harpoon 428 Bottlenose dolphin, WNA offshore. Humpback whale, Gulf of Maine. Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean snapper-grouper and other reef fish bottom longline/hook-and-line >5,000 Bottlenose dolphin, GMX continental shelf. Southeastern U.S. Atlantic, Gulf of Mexico shark bottom longline/hook-and-line <125 Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, Northern GMX continental shelf. Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean pelagic hook-and-line/harpoon 1,446 None documented. U.S. Atlantic, Gulf of Mexico trotline Unknown None documented. TRAP/POT FISHERIES Caribbean mixed species trap/pot >501 None documented. Caribbean spiny lobster trap/pot >197 None documented. FL spiny lobster trap/pot 1,268 Bottlenose dolphin, Biscayne Bay estuarine Bottlenose dolphin, Central FL coastal. Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, FL Bay estuarine. Gulf of Mexico blue crab trap/pot 4,113 Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, GMX bay, sound, estuarine. Bottlenose dolphin, Northern GMX coastal. Bottlenose dolphin, Western GMX coastal. West Indian manatee, FL. Gulf of Mexico mixed species trap/pot unknown None documented. Southeastern U.S. Atlantic, Gulf of Mexico golden crab trap/pot 10 None documented. U.S. Mid-Atlantic eel trap/pot Unknown None documented. STOP SEINE/WEIR/POUND NET/FLOATING TRAP FISHERIES: Gulf of Maine herring and Atlantic mackerel stop seine/weir >1 Harbor porpoise, GME/BF. Harbor seal, WNA. Minke whale, Canadian east coast. Atlantic white-sided dolphin, WNA. U.S. Mid-Atlantic crab stop seine/weir 2,600 None documented. U.S. Mid-Atlantic mixed species stop seine/weir/pound net (except the NC roe mullet stop net) Unknown Bottlenose dolphin, Northern NC estuarine system. RI floating trap 9 None documented. DREDGE FISHERIES: Gulf of Maine sea urchin dredge Unknown None documented. Gulf of Maine mussel dredge Unknown None documented. Gulf of Maine, U.S. Mid-Atlantic sea scallop dredge >403 None documented. Mid-Atlantic blue crab dredge Unknown None documented. Mid-Atlantic soft-shell clam dredge Unknown None documented. Mid-Atlantic whelk dredge Unknown None documented. U.S. Mid-Atlantic/Gulf of Mexico oyster dredge 7,000 None documented. New England and Mid-Atlantic offshore surf clam/quahog dredge Unknown None documented. HAUL/BEACH SEINE FISHERIES: Caribbean haul/beach seine 15 None documented in the most recent five years of data. Gulf of Mexico haul/beach seine unknown None documented. Southeastern U.S. Atlantic haul/beach seine 25 None documented. DIVE, HAND/MECHANICAL COLLECTION FISHERIES: Atlantic Ocean, Gulf of Mexico, Caribbean shellfish dive, hand/mechanical collection 20,000 None documented. Gulf of Maine urchin dive, hand/mechanical collection Unknown None documented. Gulf of Mexico, Southeast Atlantic, Mid-Atlantic, and Caribbean cast net Unknown None documented. COMMERCIAL PASSENGER FISHING VESSEL (CHARTER BOAT) FISHERIES: Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel 4,000 Bottlenose dolphin, Biscayne Bay estuarine. Bottlenose dolphin, Central FL coastal. Bottlenose dolphin, Choctawhatchee Bay. Bottlenose dolphin, Eastern GMX coastal. Bottlenose dolphin, FL Bay. Bottlenose dolphin, GMX bay, sound, estuarine. Bottlenose dolphin, Indian River Lagoon estuarine system. Bottlenose dolphin, Jacksonville estuarine system. Bottlenose dolphin, Northern FL coastal. Bottlenose dolphin, Northern GA/Southern SC estuarine. Bottlenose dolphin, Northern GMX coastal. Bottlenose dolphin, Northern migratory coastal. Bottlenose dolphin, Northern NC estuarine. Bottlenose dolphin, Southern migratory coastal. Bottlenose dolphin, Southern NC estuarine system. Bottlenose dolphin, Southern SC/GA coastal. Bottlenose dolphin, Western GMX coastal. List of Abbreviations and Symbols Used in Table 2: DE—Delaware; FL—Florida; GA—Georgia; GME/BF—Gulf of Maine/Bay of Fundy; GMX—Gulf of Mexico; MA—Massachusetts; NC—North Carolina; NY—New York; RI—Rhode Island; SC—South Carolina; VA—Virginia; WNA—Western North Atlantic; 1 Fishery classified based on mortalities and serious injuries of this stock, which are greater than or equal to 50 percent (Category I) or greater than 1 percent and less than 50 percent (Category II) of the stock's PBR; 2 Fishery classified by analogy; * Fishery has an associated high seas component listed in Table 3.
    Table 3—List of Fisheries—Commercial Fisheries on the High Seas Fishery description Number of HSFCA permits Marine mammal species and/or stocks incidentally killed or injured Category I LONGLINE FISHERIES: Atlantic Highly Migratory Species * 86 Atlantic spotted dolphin, WNA. Bottlenose dolphin, Northern GMX oceanic. Bottlenose dolphin, WNA offshore. Common dolphin, WNA. Cuvier's beaked whale, WNA. False killer whale, WNA. Killer whale, GMX oceanic. Kogia spp. whale (Pygmy or dwarf sperm whale), WNA. Long-finned pilot whale, WNA. Mesoplodon beaked whale, WNA. Minke whale, Canadian East coast. Pantropical spotted dolphin, WNA. Risso's dolphin, GMX. Risso's dolphin, WNA. Short-finned pilot whale, WNA. Western Pacific Pelagic (HI Deep-set component) * ⁁ 135 Bottlenose dolphin, HI Pelagic. False killer whale, HI Pelagic. Pantropical spotted dolphin, HI. Risso's dolphin, HI. Short-finned pilot whale, HI. Sperm whale, HI. Striped dolphin, HI DRIFT GILLNET FISHERIES: Pacific Highly Migratory Species * ⁁ 5 Long-beaked common dolphin, CA. Humpback whale, CA/OR/WA. Northern right-whale dolphin, CA/OR/WA. Pacific white-sided dolphin, CA/OR/WA. Risso's dolphin, CA/OR/WA. Short-beaked common dolphin, CA/OR/WA. Category II DRIFT GILLNET FISHERIES: Atlantic Highly Migratory Species 1 Undetermined. TRAWL FISHERIES: Atlantic Highly Migratory Species ** 1 Undetermined. CCAMLR 0 Antarctic fur seal. PURSE SEINE FISHERIES: South Pacific Tuna Fisheries 39 Undetermined. Western Pacific Pelagic 3 Undetermined. LONGLINE FISHERIES: CCAMLR 0 None documented. South Pacific Albacore Troll 15 Undetermined. South Pacific Tuna Fisheries ** 8 Undetermined. Western Pacific Pelagic (HI Shallow-set component) * ⁁ 15 Blainville's beaked whale, HI. Bottlenose dolphin, HI Pelagic. False killer whale, HI Pelagic. Humpback whale, Central North Pacific. Kogia spp. whale (Pygmy or dwarf sperm whale), HI. Risso's dolphin, HI. Short-beaked common dolphin, CA/OR/WA. Short-finned pilot whale, HI. Striped dolphin, HI HANDLINE/POLE AND LINE FISHERIES: Atlantic Highly Migratory Species 3 Undetermined. Pacific Highly Migratory Species 50 Undetermined. South Pacific Albacore Troll 9 Undetermined. Western Pacific Pelagic 5 Undetermined. TROLL FISHERIES: Atlantic Highly Migratory Species 2 Undetermined. South Pacific Albacore Troll 38 Undetermined. South Pacific Tuna Fisheries ** 5 Undetermined. Western Pacific Pelagic 21 Undetermined. Category III LONGLINE FISHERIES: Northwest Atlantic Bottom Longline 1 None documented. Pacific Highly Migratory Species * 126 None documented in the most recent 5 years of data. PURSE SEINE FISHERIES Pacific Highly Migratory Species * ⁁ 8 None documented. TRAWL FISHERIES: Northwest Atlantic 1 None documented. TROLL FISHERIES: Pacific Highly Migratory Species * 243 None documented. List of Terms, Abbreviations, and Symbols Used in Table 3: CA—California; GMX—Gulf of Mexico; HI—Hawaii; OR—Oregon; WA—Washington; WNA—Western North Atlantic. * Fishery is an extension/component of an existing fishery operating within U.S. waters listed in Table 1 or 2. The number of permits listed in Table 3 represents only the number of permits for the high seas component of the fishery. ** These gear types are not authorized under the Pacific HMS FMP (2004), the Atlantic HMS FMP (2006), or without a South Pacific Tuna Treaty license (in the case of the South Pacific Tuna fisheries). Because HSFCA permits are valid for five years, permits obtained in past years exist in the HSFCA permit database for gear types that are now unauthorized. Therefore, while HSFCA permits exist for these gear types, it does not represent effort. In order to land fish species, fishers must be using an authorized gear type. Once these permits for unauthorized gear types expire, the permit-holder will be required to obtain a permit for an authorized gear type. ⁁ The list of marine mammal species and/or stocks killed or injured in this fishery is identical to the list of marine mammal species and/or stocks killed or injured in U.S. waters component of the fishery, minus species and/or stocks that have geographic ranges exclusively in coastal waters, because the marine mammal species and/or stocks are also found on the high seas and the fishery remains the same on both sides of the EEZ boundary. Therefore, the high seas components of these fisheries pose the same risk to marine mammals as the components of these fisheries operating in U.S. waters. Table 4—Fisheries Affected by Take Reduction Teams and Plans Take reduction plans Affected fisheries Atlantic Large Whale Take Reduction Plan (ALWTRP)—50 CFR 229.32 Category I Mid-Atlantic gillnet. Northeast/Mid-Atlantic American lobster trap/pot. Northeast sink gillnet. Category II Atlantic blue crab trap/pot. Atlantic mixed species trap/pot. Northeast anchored float gillnet. Northeast drift gillnet. Southeast Atlantic gillnet. Southeastern U.S. Atlantic shark gillnet.* Southeastern, U.S. Atlantic, Gulf of Mexico stone crab trap/pot.⁁ Bottlenose Dolphin Take Reduction Plan (BDTRP)—50 CFR 229.35 Category I Mid-Atlantic gillnet. Category II Atlantic blue crab trap/pot. Chesapeake Bay inshore gillnet fishery. Mid-Atlantic haul/beach seine. Mid-Atlantic menhaden purse seine. NC inshore gillnet. NC long haul seine. NC roe mullet stop net. Southeast Atlantic gillnet. Southeastern U.S. Atlantic shark gillnet. Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl. Southeastern, U.S. Atlantic, Gulf of Mexico stone crab trap/pot.⁁ VA pound net. False Killer Whale Take Reduction Plan (FKWTRP)—50 CFR 229.37 Category I HI deep-set longline. Category II HI shallow-set longline. Harbor Porpoise Take Reduction Plan (HPTRP)—50 CFR 229.33 (New England) and 229.34 (Mid-Atlantic) Category I Mid-Atlantic gillnet. Northeast sink gillnet. Pelagic Longline Take Reduction Plan (PLTRP)—50 CFR 229.36 Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline. Pacific Offshore Cetacean Take Reduction Plan (POCTRP)—50 CFR 229.31 Category I CA thresher shark/swordfish drift gillnet (≥14 in mesh). Atlantic Trawl Gear Take Reduction Team (ATGTRT) Category II Mid-Atlantic bottom trawl. Mid-Atlantic mid-water trawl (including pair trawl). Northeast bottom trawl. Northeast mid-water trawl (including pair trawl). * Only applicable to the portion of the fishery operating in U.S. waters; ⁁Only applicable to the portion of the fishery operating in the Atlantic Ocean. Classification

    The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule would not have a significant economic impact on a substantial number of small entities. On June 12, 2014, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647). 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. NMFS has reviewed the analyses prepared for this action in light of the new size standards. Under the former, lower size standards, all entities subject to this action were considered small entities, thus they all would continue to be considered small under the new standards. The factual basis leading to the certification is set forth below.

    Under existing regulations, all individuals participating in Category I or II fisheries must register under the MMPA and obtain an Authorization Certificate. The Authorization Certificate authorizes the taking of non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Additionally, individuals may be subject to a TRP and requested to carry an observer. NMFS has estimated that up to approximately 58,500 fishing vessels, most with annual revenues below the SBA's small entity thresholds, may operate in Category I or II fisheries. As fishing vessels operating in Category I or II fisheries, they are required to register with NMFS. Forty-five fishing vessels are new to Category II as a result of this proposed rule. The MMPA registration process is integrated with existing state and Federal licensing, permitting, and registration programs. Therefore, individuals who have a state or Federal fishing permit or landing license, or who are authorized through another related state or Federal fishery registration program, are currently not required to register separately under the MMPA or pay the $25 registration fee. Therefore, this proposed rule would not impose any direct costs on small entities. Record keeping and reporting costs associated with this rulemaking are minimal and would not have a significant impact on a substantial number of small entities.

    If a vessel is requested to carry an observer, vessels will not incur any direct economic costs associated with carrying that observer. In addition, section 118 of the MMPA states that an observer is not required to be placed on a vessel if the facilities for quartering an observer or performing observer functions are inadequate or unsafe, thereby exempting vessels too small to accommodate an observer from this requirement. As a result of this certification, an initial regulatory flexibility analysis is not required and has not been prepared. In the event that reclassification of a fishery to Category I or II results in a TRP, economic analyses of the effects of that TRP would be summarized in subsequent rulemaking actions.

    This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of individuals under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0293 (0.15 hours per report for new registrants and 0.09 hours per report for renewals). The requirement for reporting marine mammal mortalities or injuries has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collections of information, including suggestions for reducing burden, to NMFS and OMB (see ADDRESSES and SUPPLEMENTARY INFORMATION).

    Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

    This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

    An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) in 1995 and 2005. The 1995 EA examined the effects of regulations implementing section 118 of the 1994 Amendments of the MMPA on the affected environment. The 2005 EA analyzed the environmental impacts of continuing the existing scheme (as described in the 1995 EA) for classifying fisheries on the LOF. The 1995 EA and the 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. NMFS reviewed the 2005 EA in 2009. NMFS concluded that because there were no changes to the process used to develop the LOF and implement section 118 of the MMPA, there was no need to update the 2005 EA. This rule would not change NMFS' current process for classifying fisheries on the LOF; therefore, this rule is not expected to change the analysis or conclusion of the 2005 EA and FONSI, and no update is needed. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an environmental document, as required under NEPA, specific to that action.

    This proposed rule would not affect species listed as threatened or endangered under the Endangered Species Act (ESA) or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would consult under ESA section 7 on that action.

    This proposed rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams.

    This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.

    References Allen, B.M. and R.P. Angliss, editors. 2015. Alaska Marine Mammal Stock Assessments, 2014. NOAA Tech. Memo. NMFS-AFSC-301. 270 p. Carretta, J.V., E. Oleson, D.W. Weller, A.R. Lang, K.A. Forney, J. Baker, B. Hanson, K Martien, M.M. Muto, M.S. Lowry, J. Barlow, D. Lynch, L. Carswell, R.L. Brownell Jr., D.K. Mattila, and M.C. Hill. 2015. U.S. Pacific Marine Mammal Stock Assessments: 2014. NOAA Technical Memorandum NOAA-TM-NMFS-SWFSC-549. 78 p. Garrison, L.P. and Stokes, L. 2014. Estimated Bycatch of Marine Mammals and Sea Turtles in U.S. Atlantic Pelagic Longline Fleet During 2013. NOAA Technical Memorandum NOAA-NMFS-SEFSC-667: 6lp. McCracken, M.L. Assessment of Incidental Interactions with Marine Mammals in the Hawaii Deep and Shallow Set Fisheries from 2008 through 2012. NMFS Pacific Islands Fisheries Science Center, PIFSC Internal Report IR-14-006. 1 p. + Excel spreadsheet. Waring, G.T., E. Josephson, K. Maze-Foley, and P.E. Rosel, editors. 2015. U.S. Atlantic and Gulf of Mexico Marine Mammal Stocks Assessments, 2014. NOAA Technical Memorandum NOAA-NE-231. 355 p. Dated: September 17, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-24638 Filed 9-28-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 140819686-5840-01] RIN 0648-BE38 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery and Golden Crab Fishery of the South Atlantic, and Dolphin and Wahoo Fishery of the Atlantic AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to implement management measures described in Amendment 34 to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region, Amendment 9 to the FMP for the Golden Crab Fishery of the South Atlantic Region, and Amendment 8 to the FMP for the Dolphin and Wahoo Fishery of the Atlantic; collectively referred to as the Generic Accountability Measures (AM) and Dolphin Allocation Amendment (Generic AM Amendment), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this proposed rule would revise the commercial and recreational AMs for numerous snapper-grouper species and golden crab. This proposed rule would also revise commercial and recreational sector allocations for dolphin in the Atlantic. The proposed actions are intended to make the AMs consistent for snapper-grouper species addressed in this proposed rule and for golden crab, and revise the allocations between the commercial and recreational sectors for dolphin.

    DATES:

    Written comments must be received on or before October 29, 2015.

    ADDRESSES:

    You may submit comments on the proposed rule, identified by “NOAA-NMFS-2013-0181” by either of the following methods:

    Electronic Submission: Submit all electronic comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0181, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit all written comments to Mary Janine Vara, NMFS Southeast Regional Office (SERO), 263 13th Avenue South, St. Petersburg, FL 33701.

    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, etc.), 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).

    Electronic copies of the Generic AM Amendment, which includes an environmental assessment, initial regulatory flexibility analysis (IRFA), regulatory impact review, and fishery impact statement, may be obtained from www.regulations.gov or the SERO Web site at http://sero.nmfs.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    Mary Janine Vara, NMFS SERO, telephone: 727-824-5305, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery in the South Atlantic is managed under the FMP for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-Grouper FMP). The golden crab fishery in the South Atlantic is managed under the FMP for the Golden Crab Fishery of the South Atlantic Region (Golden Crab FMP). The dolphin and wahoo fishery in the Atlantic is managed under the FMP for the Dolphin and Wahoo Fishery of the Atlantic (Dolphin Wahoo FMP). The FMPs were prepared by the Council and implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    Background

    The Magnuson-Stevens Act requires that NMFS and regional fishery management councils prevent overfishing and achieve, on a continuing basis, the optimum yield from federally managed fish stocks. These mandates are intended to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to minimize bycatch and bycatch mortality to the extent practicable.

    Management Measures Contained in This Proposed Rule Modifications to Commercial and Recreational AMs for Snapper-Grouper Species and Golden Crab

    This proposed rule would revise the AMs for golden tilefish, snowy grouper, gag, red grouper, black grouper, scamp, the other shallow-water grouper complex (SASWG: red hind, rock hind, yellowmouth grouper, yellowfin grouper, coney, and graysby), greater amberjack, the other jacks complex (lesser amberjack, almaco jack, and banded rudderfish), bar jack, yellowtail snapper, mutton snapper, the other snappers complex (cubera snapper, gray snapper, lane snapper, dog snapper, and mahogany snapper), gray triggerfish, wreckfish (recreational sector), Atlantic spadefish, hogfish, red porgy, the other porgies complex (jolthead porgy, knobbed porgy, whitebone porgy, scup, and saucereye porgy), and golden crab (commercial sector).

    Currently, the snapper-grouper species and golden crab addressed in this proposed rule have slightly different AMs in place compared to other snapper-grouper species. This proposed rule would modify the AMs for these species, including those identified in the species complexes, to make them consistent with the majority of the AMs already in place for other snapper-grouper species. Specifically, the proposed rule would update the recreational AMs to allow NMFS to close recreational sectors when the recreational annual catch limits (ACLs) are met or are projected to be met, unless NMFS determines that no closure is necessary based on the best scientific information available. The proposed rule would also modify the AMs to trigger post-season ACL reductions in the commercial and recreational sectors in the year following an ACL overage under certain situations.

    If the recreational sector exceeds its ACL, NMFS would monitor the recreational sector for persistence in increased landings during the following fishing year. In the following fishing year, if the best scientific information available determines it necessary, NMFS would publish a notice in the Federal Register to reduce the length of fishing season and the recreational ACL by the amount of the recreational ACL overage if the species, or one or more species in a species complex, is overfished and if the total ACL (commercial ACL and recreational ACL) was exceeded in the prior fishing year.

    If the commercial sector exceeds its ACL, NMFS would publish a notice in the Federal Register to reduce the commercial ACL in the following fishing year by the amount of the commercial ACL overage if the species, or one or more species in a species complex, is overfished and if the total ACL (commercial ACL and recreational ACL) was exceeded in the prior fishing year.

    Modifying the AMs in this manner would create regulatory consistency among the majority of federally managed species in the South Atlantic region.

    Modifications to Commercial and Recreational Sector Allocations for Dolphin

    The Council has expressed concern that the variability in commercial annual landings of dolphin could result in the commercial ACL being exceeded in the future, and that the recreational sector for dolphin has not come close to reaching its ACL in recent years. Therefore, in the Generic AM Amendment, the Council assessed allocation methods for revising the fishing sector allocations for dolphin.

    The current sector allocations for dolphin are 7.54 percent for the commercial sector and 92.46 percent for the recreational sector. The Council chose these allocations using a sector allocation formula where 50 percent of the sector allocations are based on a longer-term landings series (1999-2008) and 50 percent of the sector allocations are based on a shorter time series (2006-2008). This results in the current ACL of 1,157,001 lb (524,807 kg), round weight, for the commercial sector and 14,187,845 lb (6,435,498 kg), round weight, for the recreational sector.

    In the Generic AM Amendment, the Council chose a sector allocation formula for dolphin based on the average of the percentages of the total catch from 2008-2012. Thus, this proposed rule would revise the commercial sector allocation to be 10 percent with an ACL of 1,534,485 lb (696,031 kg), round weight, and the recreational sector allocation for dolphin to be 90 percent with an ACL of 13,810,361 lb (6,264,274 kg), round weight. This change in sector allocation would constitute an ACL increase for the commercial sector and an ACL decrease for the recreational sector of 377,484 lb (171,224 kg), round weight.

    Other Changes to the Codified Text

    This proposed rule would clarify the AM provisions in § 622.193 (the ACLs/AMs section of the regulations for South Atlantic snapper-grouper species) that would reduce a season length in the following recreational fishing year. These clarifications would aid law enforcement efforts. For those snapper-grouper species that have a post-season AM if a recreational ACL is exceeded, under certain conditions NMFS would reduce the season length (i.e., implement a closure) for that species or species complex in the following fishing year by publishing an AM notification and closure date for the recreational sector for that species or species complex in the Federal Register. In this proposed rule, NMFS would add a closure provision to the regulations for these situations. Specifically, the provision states that when the closure becomes effective, the bag and possession limits for the applicable species or species complex in or from the South Atlantic EEZ would be reduced to zero.

    In addition, this proposed rule would remove and consolidate language in § 622.190(a)(6) for the red porgy commercial quota from past fishing years that is no longer applicable.

    Finally, this proposed rule would fix an error in § 622.280 for Atlantic dolphin and wahoo. Atlantic dolphin and wahoo are managed off the Atlantic states (Maine through the east coast of Florida) via the Dolphin Wahoo FMP; however, in the AMs section of the codified text, the closure provisions currently apply in the South Atlantic EEZ only. This inadvertent error was implemented in the rulemaking for the Comprehensive ACL Amendment (77 FR 15916, March 16, 2011). This proposed rule would change “South Atlantic EEZ” to “Atlantic EEZ” in the AMs for dolphin and wahoo in paragraphs (a)(1)(i) and (b)(1)(i) of § 622.280, which is consistent with the FMP for management of these species from Maine through the east coast of Florida.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 34 to the FMP for the Snapper-Grouper Fishery, Amendment 9 to the FMP for the Golden Crab Fishery, Amendment 8 to the FMP for the Dolphin and Wahoo Fishery, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see ADDRESSES). A summary of the IRFA follows.

    The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, this proposed rule does not implicate the Paperwork Reduction Act.

    NMFS expects this proposed rule, if implemented, to directly affect federally permitted commercial fishermen harvesting snapper-grouper species or golden crab in the South Atlantic. NMFS also expects this proposed rule to affect federally permitted commercial fishermen harvesting dolphin in the South Atlantic and off states north of North Carolina (northeastern states). The Small Business Administration established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in fish harvesting is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $20.5 million (NAICS code 114111, finfish fishing) for all of its affiliated operations worldwide.

    Charter vessels and headboats (for-hire vessels) sell fishing services, which include the harvest of any species considered in this proposed rule, to recreational anglers. These vessels provide a platform for the opportunity to fish and not a guarantee to catch or harvest any species, though expectations of successful fishing, however defined, likely factor into the decision to purchase these services. Changing the allowable harvest of a species, including in-season closures and post-season ACL overage adjustments, only defines what can be kept and does not explicitly prevent the continued offer of for-hire fishing services. In response to a change in the allowable harvest, including a zero-fish limit or fishery closure, fishing for other species could continue. Because the changes considered in this proposed rule would not directly alter the service sold by these vessels, this proposed rule would not directly apply to or regulate their operations. For-hire vessels would continue to be able to offer their core product, which is an attempt to “put anglers on fish,” provide the opportunity for anglers to catch whatever their skills enable them to catch, and keep those fish that they desire to keep and are legal to keep. Any change in demand for these fishing services and associated economic affects as a result of changing a quota or fishery closures would be a consequence of behavioral change by anglers, secondary to any direct effect on anglers and, therefore, an indirect effect of the proposed regulatory action. Because the effects on for-hire vessels would be indirect, they fall outside the scope of the RFA. Recreational anglers, who may be directly affected by the changes in this proposed rule, are not small entities under the RFA.

    NMFS has not identified any other small entities that would be expected to be directly affected by this proposed rule.

    The snapper-grouper fishery is a multi-species fishery and vessels generally land many species on the same trips. Vessels in the dolphin fishery also catch other species jointly with dolphin. The golden crab fishery is more specialized than either the snapper-grouper or dolphin fishery. Because of the possibility that some vessels land only species not affected by this proposed rule, the following provides a description of vessels and their revenues by focusing on the key species (black grouper, mutton snapper, yellowtail snapper, greater amberjack, red porgy, gag, golden tilefish, red grouper, snowy grouper, wreckfish, golden crab, and dolphin) addressed in this proposed rule. Hogfish, a recently assessed species, is not included here as a key species for this analysis as it is being addressed by the Council in Amendment 37. However, revenue approximations for vessels landing hogfish are noted below. The number of vessels and revenues (2013 dollars) are annual averages for the period 2009 through 2013, unless otherwise noted. Data for the years 2009 through 2013 were the latest complete five-year data available when the Council considered the actions in this proposed rule. Approximately 188 vessels landing at least 1 lb (0.45 kg) of black grouper generated approximately $54,000 in revenues from black grouper and other species; 266 vessels landing at least 1 lb (0.45 kg) of mutton snapper had revenues of approximately $51,000 from mutton snapper and other species; 252 vessels landing at least 1 lb (0.45 kg) yellowtail snapper had revenues of approximately $38,000 from yellowtail snapper and other species; 295 vessels landing at least 1 lb (0.45 kg) of greater amberjack had revenues of approximately $53,000 from greater amberjack and other species; 191 vessels landing at least 1 lb (0.45 kg) of red porgy had revenues of approximately $60,000 from red porgy and other species; 273 vessels landing at least 1 lb (0.45 kg) of gag had revenues of approximately $49,000 from gag and other species; 63 vessels landing at least 1 lb (0.45 kg) of golden tilefish had revenues of approximately $68,000 from golden tilefish and other species; 278 vessels landing at least 1 lb (0.45 kg) of red grouper had revenues of approximately $50,000 from red grouper and other species; 95 vessels landing at least 1 lb (0.45 kg) of red snapper had revenues of approximately $57,000 from red snapper and other species; 138 vessels landing at least 1 lb (0.45 kg) of snowy grouper had revenues of approximately $78,000 from snowy grouper and other species; and 488 vessels landing at least 1 lb (0.45 kg) of dolphin had revenues of approximately $64,000 from dolphin and other species. Revenues for vessels landing at least 1 lb (0.45 kg) of wreckfish or golden crab can be approximated based on total revenues from landings of those species and the number of permits. As of August 6, 2015, there were five wreckfish permits and 11 golden crab permits. For fishing years 2009/2010 through 2013/2014, annual revenues from wreckfish landings averaged $752,881, implying average annual revenue per wreckfish vessel of approximately $188,000. From 2009 through 2013, annual revenues from golden crab landings averaged $1,419,843, implying average annual revenue per golden crab vessel of approximately $142,000. Most of the unassessed species (almaco jack, banded rudderfish, lesser amberjack, gray snapper, lane snapper, cubera snapper, dog snapper, mahogany snapper, white grunt, sailors choice, tomtate, margate, red hind, rock hind, yellowmouth grouper, yellowfin grouper, coney, graysby, jolthead porgy, knobbed porgy, saucereye porgy, scup, whitebone porgy, Atlantic spadefish, bar jack, scamp, and gray triggerfish), and hogfish had lower dockside revenues than many of the key species. In fact, the highest dockside values of an unassessed species (scamp) were much lower than those of at least one assessed species (yellowtail snapper). Therefore, NMFS expects that revenues of vessels landing at least one pound of an unassessed species or hogfish would fall within the range of vessel revenues described above.

    Some vessels, other than those in the golden crab fishery, may have caught and landed a combination of the 12 key species, hogfish, and unassessed species, and revenues therefrom are included in the foregoing estimates. Vessels that caught and landed any of the species addressed in this proposed rule may also operate in other fisheries, the revenues of which are not known and are not reflected in these totals. Based on the revenue information provided above, all commercial vessels expected to be affected by this proposed rule are assumed to be small entities.

    Because all entities expected to be affected by this proposed rule are assumed to be small entities, NMFS has determined that this proposed rule would affect a substantial number of small entities. However, the issue of disproportionate effects on small versus large entities does not arise in the present case.

    Designating a species to be overfished presupposes a stock assessment has been completed, implying that the payback action, i.e., a reduction in the following year's catch limit or quota by the amount of an overage, in the proposed rule would not apply to unassessed species. Therefore, the harvest of unassessed species and attendant economic benefits would remain unaffected by the proposed rule. NMFS notes that a stock assessment underway for gray triggerfish, an unassessed species, is expected to be completed in 2016. Of the assessed species subject to the AM action in this proposed rule, only red porgy and snowy grouper are considered overfished. The recent stock assessment for hogfish defined three separate stocks, one of which is considered overfished and undergoing overfishing. Amendment 37 will address issues specifically related to hogfish. Since 2009, the commercial sector exceeded its allocation for red porgy in 2011 and 2013 by less than 3 percent each year. On the other hand, recreational landings of red porgy have been well below the sector's allocation. Recreational landings of red porgy were 51 percent in 2012 and 48 percent in 2013 of the recreational sector's ACL. Based on past and recent landings history, it is unlikely that the total red porgy ACL (sum of commercial and recreational sector ACLs) would be reached in the near future, so the payback action in this proposed rule would not be expected to affect harvesters of red porgy in the short term. The case with snowy grouper is slightly different from the other overfished species. The commercial ACL was exceeded by less than 10 percent in 2012, 2013, and 2014 while the recreational ACL was exceeded by more than 200 percent in 2012 and 2013. For the 2014 fishing season, recreational harvest of snowy grouper was closed on June 7, 2014. Based on landings history, it is likely that the payback action for snowy grouper in this proposed rule would adversely affect the profits of commercial vessels. The amount of payback for overages and resulting profit loss to the commercial vessels cannot be estimated. However, current regulations enable NMFS to implement a snowy grouper in-season closure for the commercial sector and in-season monitoring and possible closure for the recreational sector if the respective sector's ACL is reached or projected to be reached. In addition, this rule proposes to implement an in-season closure for the snowy grouper recreational sector once the sector's ACL is reached or projected to be reached. These current or proposed measures would be expected to limit the amount of overage, meaning that the resulting loss in profits to commercial vessels due to the payback provision should be small. The proposed commercial and recreational sector re-allocation of the ACL for dolphin would increase the share of the commercial sector at the expense of the recreational sector. In theory, this would tend to increase the revenues or profits of commercial vessels and potentially reduce the revenues or profits of for-hire vessels. In practice, commercial vessels are not expected to experience any profit changes in the near-term based on historical landings for the sector from 2009 through 2013. Relative to the proposed new sector allocations, based on applying the proposed allocation ratios to the current total ACL, commercial landings of dolphin (based on 2009-2013 commercial landings) would range from 33 percent to 80 percent of the sector's ACL. In the years 2009 through 2013, the highest landings occurred in 2009 and the lowest in 2013. However, commercial fishing for dolphin closed on June 30, 2015, when the commercial sector reached its ACL. If future commercial landings of dolphin were equal to or greater than they were in 2015, the proposed allocation ratio would be expected to increase the revenues, and possibly profits, of commercial vessels. As noted earlier, for-hire vessels would only be affected indirectly by the proposed rule.

    The following discussion describes the alternatives that were not selected as preferred by the Council.

    Four alternatives, including the preferred alternative (as described in the preamble), were considered for reducing the following year's commercial ACL by the amount of the commercial overage. The first alternative, the no-action alternative, would not impose a payback provision for gag, golden tilefish, red snapper, snowy grouper, wreckfish, and golden crab while retaining the payback provision for the other species addressed in this action. This alternative would not address the need to create a consistent regulatory environment while preventing unnecessary negative socio-economic impacts, and ensure overfishing does not occur in accordance with the provisions set forth in the Magnuson-Stevens Act. The second alternative would require a payback for overages only if the species is overfished, and the third alternative would require a payback only if the combined total of commercial and recreational ACLs is exceeded. These two alternatives are more restrictive than the preferred alternative and, therefore, would be expected to have potentially larger adverse short-term economic effects on commercial entities than the preferred alternative.

    Because the commercial and recreational sector re-allocation of the ACL for dolphin would not be expected to result in any negative effects on any directly affected entities, the issue of significant alternatives to reduce any significant negative effects is not relevant.

    List of Subjects in 50 CFR Part 622

    Accountability measure, Annual catch limit, Dolphin, Fisheries, Fishing, Golden crab, Snapper-grouper, South Atlantic.

    Dated: September 17, 2015. Eileen Sobeck, Assistant Administrator for Fisheries, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.190, revise paragraph (a)(6) to read as follows:
    § 622.190 Quotas.

    (a) * * *

    (6) Red porgy—157,692 lb (71,528 kg), gutted weight; 164,000 lb (74,389 kg), round weight.

    3. In § 622.193, revise paragraphs (a) through (d), (g), (i), (j) through (r), and (t) through (x) to read as follows:
    § 622.193 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

    (a) Golden tilefish—(1) Commercial sector—(i) Hook-and-line component. If commercial landings for golden tilefish, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.190(a)(2)(ii), the AA will file a notification with the Office of the Federal Register to close the hook-and-line component of the commercial sector for the remainder of the fishing year. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) Longline component. If commercial landings for golden tilefish, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.190(a)(2)(iii), the AA will file a notification with the Office of the Federal Register to close the longline component of the commercial sector for the remainder of the fishing year. After the commercial ACL for the longline component is reached or projected to be reached, golden tilefish may not be fished for or possessed by a vessel with a golden tilefish longline endorsement. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (iii) If commercial landings for golden tilefish, as estimated by the SRD, exceed the commercial ACL (including both the hook-and-line and longline component ACLs) specified in § 622.190(a)(2)(i), and the combined commercial and recreational ACL of 558,036 lb (253,121 kg), gutted weight, 625,000 lb (283,495 kg), round weight, is exceeded during the same fishing year, and golden tilefish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for golden tilefish, as estimated by the SRD, reach or are projected to reach the recreational ACL of 3,019 fish, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for golden tilefish in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for golden tilefish, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 558,036 lb (253,121 kg), gutted weight, 625,000 lb (285,495 kg), round weight, is exceeded during the same fishing year. The AA will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for golden tilefish in or from the South Atlantic EEZ are zero.

    (b) Snowy grouper—(1) Commercial sector—(i) If commercial landings for snowy grouper, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.190(a)(1), the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) If commercial landings for snowy grouper, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL specified in § 622.193(b)(1)(iii) is exceeded, and snowy grouper are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (iii) The combined commercial and recreational ACL for snowy grouper is 139,098 lb (63,094 kg), gutted weight, 164,136 lb (74,451 kg), round weight, for 2015; 151,518 lb (68,727 kg), gutted weight, 178,791 lb (81,098 kg), round weight, for 2016; 163,109 lb (73,985 kg), gutted weight, 192,469 lb (87,302 kg), round weight, for 2017; 173,873 lb (78,867 kg), gutted weight, 205,170 lb (93,064 kg), round weight, for 2018; 185,464 lb (84,125 kg), gutted weight, 218,848 lb (99,268 kg), round weight, for 2019 and subsequent years.

    (2) Recreational sector—(i) If recreational landings for snowy grouper, as estimated by the SRD, reach or are projected to reach the recreational ACL, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such notification, the bag and possession limits for snowy grouper in or from the South Atlantic EEZ are zero. The recreational ACL for snowy grouper is 4,152 fish for 2015; 4,483 fish for 2016; 4,819 fish for 2017, 4,983 fish for 2018; 5,315 fish for 2019 and subsequent fishing years.

    (ii) If recreational landings for snowy grouper, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if snowy grouper are overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL specified in § 622.193(b)(1)(iii) is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for snowy grouper in or from the South Atlantic EEZ are zero.

    (c) Gag—(1) Commercial sector—(i) If commercial landings for gag, as estimated by the SRD, reach or are projected to reach the commercial quota specified in § 622.190(a)(7), the AA will file a notification with the Office of the Federal Register to close the commercial sector for gag for the remainder of the fishing year. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) If the commercial landings for gag, as estimated by the SRD, exceed the commercial ACL specified in § 622.193(c)(1)(iii), and the combined commercial and recreational ACL specified in § 622.193(c)(1)(iv), is exceeded during the same fishing year, and gag are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (iii) The commercial ACL for gag is 322,677 lb (146,364 kg), gutted weight, 380,759 lb (172,709 kg), round weight, for 2015; 325,100 lb (147,463 kg), gutted weight, 383,618 lb (174,006 kg), round weight, for 2016; 345,449 lb (197,516 kg), gutted weight, 407,630 lb (184,898 kg), round weight, for 2017; 362,406 lb (164,385 kg), gutted weight, 427,639 lb (193,974 kg), round weight, for 2018; and 374,519 lb (169,879 kg), gutted weight, 441,932 lb (200,457 kg), round weight, for 2019 and subsequent fishing years.

    (iv) The combined commercial and recreational ACL for gag is 632,700 lb (286,988 kg), gutted weight, 746,586 lb (338,646 kg), round weight, for 2015; 637,451 lb (289,143 kg), gutted weight, 752,192 lb (341,189 kg), round weight, for 2016; 677,351 lb (307,241 kg), gutted weight, 799,274 lb (362,545 kg), round weight, for 2017; 710,600 lb (322,323 kg), gutted weight, 838,508 lb (380,341 kg), round weight, for 2018; and 734,351 lb (333,096 kg), gutted weight, 866,534 lb (393,053 kg), round weight, for 2019 and subsequent fishing years.

    (2) Recreational sector—(i) If recreational landings for gag, as estimated by the SRD, reach or are projected to reach the recreational ACL, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such notification, the bag and possession limits for gag in or from the South Atlantic EEZ are zero. The recreational ACL for gag is 310,023 lb (148,025 kg), gutted weight, 365,827 (165,936 kg), round weight, for 2015; 312,351 lb (149,137 kg), gutted weight, 368,574 lb (175,981 kg), round weight, for 2016; 331,902 lb (158,472 kg), gutted weight, 391,644 lb (186,997 kg), round weight, for 2017; 348,194 lb (166,251 kg), gutted weight, 410,869 lb (196,176 kg), round weight, for 2018; and 359,832 lb (171,807 kg), gutted weight, 424,602 lb (202,733 kg), round weight, for 2019 and subsequent fishing years.

    (ii) If recreational landings for gag, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL specified in § 622.193(c)(1)(iv) is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for gag in or from the South Atlantic EEZ are zero.

    (d) Red grouper—(1) Commercial sector—(i) If commercial landings for red grouper, as estimated by the SRD, reach or are projected to reach the commercial ACL of 343,200 lb (155,673 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of red grouper is prohibited and harvest or possession of red grouper in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If the commercial landings for red grouper, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 780,000 lb (353,802 kg), round weight, is exceeded during the same fishing year, and the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL in the following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for red grouper, as estimated by the SRD, are projected to reach the recreational ACL of 436,800 lb (198,129 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for red grouper in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for red grouper, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 780,000 lb (353,802 kg), round weight, is exceeded during the same fishing year. The AA will use the best scientific information available to determine if reducing the length of the recreational season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for red grouper in or from the South Atlantic EEZ are zero.

    (g) Black grouper—(1) Commercial sector—(i) If commercial landings for black grouper, as estimated by the SRD, reach or are projected to reach the commercial ACL of 96,844 lb (43,928 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of black grouper is prohibited and harvest or possession of black grouper in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for black grouper, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 262,594 lb (119,111 kg), round weight, is exceeded during the same fishing year, and the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for black grouper, as estimated by the SRD, reach or are projected to reach the recreational ACL of 165,750 lb (75,183 kg), round weight, and the AA determines that a closure is necessary by using the best scientific information available, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for black grouper in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for black grouper, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if black grouper are overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 262,594 lb (119,111 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for black grouper in or from the South Atlantic EEZ are zero.

    (i) Scamp—(1) Commercial sector—(i) If commercial landings for scamp, as estimated by the SRD, reach or are projected to reach the commercial ACL of 219,375 lb (99,507 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of scamp is prohibited and harvest or possession of scamp in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for scamp, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 335,744 lb (152,291 kg), round weight, is exceeded, and scamp are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for scamp, as estimated by the SRD, reach or are projected to reach the recreational ACL of 116,369 lb (52,784 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for scamp in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for scamp, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if scamp are overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 335,744 lb (152,291 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for scamp in or from the South Atlantic EEZ are zero.

    (j) Other SASWG combined (including red hind, rock hind, yellowmouth grouper, yellowfin grouper, coney, and graysby)—(1) Commercial sector—(i) If commercial landings for other SASWG combined, as estimated by the SRD, reach or are projected to reach the commercial ACL of 55,542 lb (25,193 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for this complex for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of red hind, rock hind, yellowmouth grouper, yellowfin grouper, coney, and graysby is prohibited, and harvest or possession of any of these species in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for other SASWG combined, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 104,190 lb (47,260 kg), round weight, is exceeded, and at least one of the species in other SASWG combined is overfished based on the most recent status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for other SASWG combined, as estimated by the SRD, reach or are projected to reach the recreational ACL of 48,648 lb (22,066 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if any stock in other SASWG combined is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for any species in the other SASWG combined in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for other SASWG combined, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if at least one of the species in other SASWG combined is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 104,190 lb (47,260 kg) is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for any species in the other SASWG combined in or from the South Atlantic EEZ are zero.

    (k) Greater amberjack—(1) Commercial sector—(i) If commercial landings for greater amberjack, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.190(a)(3), the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) If commercial landings for greater amberjack, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 1,968,001 lb (892,670 kg), round weight, is exceeded during the same fishing year, and the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL in the following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for greater amberjack, as estimated by the SRD, reach or are projected to reach the recreational ACL of 1,167,837 lb (529,722 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for greater amberjack in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for greater amberjack, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 1,968,001 lb (892,670 kg), round weight, is exceeded during the same fishing year. The AA will use the best scientific information available to determine if reducing the length of the recreational season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for greater amberjack in or from the South Atlantic EEZ are zero.

    (l) Other jacks complex (including lesser amberjack, almaco jack, and banded rudderfish, combined)—(1) Commercial sector—(i) If commercial landings for the other jacks complex, as estimated by the SRD, reach or are projected to reach the commercial ACL of 189,422 lb (85,920 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the other jacks complex for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of lesser amberjack, almaco jack, and banded rudderfish is prohibited, and harvest or possession of any of these species in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for the other jacks complex, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 457,221 lb (207,392 kg), round weight, is exceeded, and at least one of the species in the other jacks complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for the other jacks complex, as estimated by the SRD, reach or are projected to reach the recreational ACL of 267,799 lb (121,472 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if any stock in the other jacks complex is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for any species in the other jacks complex in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for the other jacks complex, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if at least one of the species in the other jacks complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 457,221 lb (207,392 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for any species in the other jacks complex in or from the South Atlantic EEZ are zero.

    (m) Bar jack—(1) Commercial sector—(i) If commercial landings for bar jack, as estimated by the SRD, reach or are projected to reach the commercial ACL of 13,228 lb (6,000 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of bar jack is prohibited and harvest or possession of bar jack in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for bar jack, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 62,249 lb (28,236 kg), round weight, is exceeded, and bar jack are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for bar jack, as estimated by the SRD, reach or are projected to reach the recreational ACL of 49,021 lb (22,236 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for bar jack in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for bar jack, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if bar jack are overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 62,249 lb (28,236 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for bar jack in or from the South Atlantic EEZ are zero.

    (n) Yellowtail snapper—(1) Commercial sector—(i) If commercial landings for yellowtail snapper, as estimated by the SRD, reach or are projected to reach the commercial ACL of 1,596,510 lb (724,165 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of yellowtail snapper is prohibited and harvest or possession of yellowtail snapper in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for yellowtail snapper, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 3,037,500 lb (1,377,787 kg), round weight, is exceeded during the same fishing year, and yellowtail snapper are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for yellowtail snapper, as estimated by the SRD, reach or are projected to reach the recreational ACL of 1,440,990 lb (653,622 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for yellowtail snapper in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for yellowtail snapper, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 3,037,500 lb (1,377,787 kg), round weight, is exceeded during the same fishing year. The AA will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for yellowtail snapper in or from the South Atlantic EEZ are zero.

    (o) Mutton snapper—(1) Commercial sector—(i) If commercial landings for mutton snapper, as estimated by the SRD, reach or are projected to reach the commercial ACL of 157,743 lb (71,551 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of mutton snapper is prohibited and harvest or possession of mutton snapper in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for mutton snapper, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 926,600 lb (420,299 kg), round weight, is exceeded during the same fishing year, and the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL in the following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for mutton snapper, as estimated by the SRD, reach or are projected to reach the recreational ACL of 768,857 lb (348,748 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for mutton snapper in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for mutton snapper, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 926,600 lb (420,299 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for mutton snapper in or from the South Atlantic EEZ are zero.

    (p) Other snappers complex (including cubera snapper, gray snapper, lane snapper, dog snapper, and mahogany snapper)—(1) Commercial sector—(i) If commercial landings for the other snappers complex, as estimated by the SRD, reach or are projected to reach the complex commercial ACL of 344,884 lb (156,437 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for this complex for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of cubera snapper, gray snapper, lane snapper, dog snapper, and mahogany snapper is prohibited, and harvest or possession of any of these species in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for the other snappers complex, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 1,517,716 lb (688,424 kg), round weight, is exceeded, and at least one of the species in the other snappers complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for the other snappers complex, as estimated by the SRD, reach or are projected to reach the recreational ACL of 1,172,832 lb (531,988 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if any stock in the other snappers complex is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for any species in the other snappers complex in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for the other snappers complex, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if at least one of the species in the other snappers complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and the combined commercial and recreational ACL of 1,517,716 lb (688,424 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for any species in the other snappers complex in or from the South Atlantic EEZ are zero.

    (q) Gray triggerfish—(1) Commercial sector—(i) If commercial landings for gray triggerfish, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.190(a)(8)(i) or (ii), the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) If commercial landings for gray triggerfish, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 716,999 lb (325,225 kg), round weight, is exceeded, and gray triggerfish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for gray triggerfish, as estimated by the SRD, reach or are projected to reach the recreational ACL of 404,675 lb (183,557 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for gray triggerfish in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for gray triggerfish, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if gray triggerfish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 716,999 lb (325,225 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for gray triggerfish in or from the South Atlantic EEZ are zero.

    (r) Wreckfish—(1) Commercial sector—(i) The ITQ program for wreckfish in the South Atlantic serves as the accountability measures for commercial wreckfish. The commercial ACL for wreckfish is equal to the commercial quota specified in § 622.190(b). Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) The combined commercial and recreational ACL for wreckfish is 433,000 lb (196,405 kg), round weight, for 2015; 423,700 lb (192,187 kg), round weight, for 2016; 414,200 lb (187,878 kg), round weight, for 2017; 406,300 lb (184,295 kg), round weight, for 2018; 396,800 lb (179,985 kg), round weight, for 2019; and 389,100 lb (176,493 kg), round weight, for 2020 and subsequent fishing years.

    (2) Recreational sector—(i) If recreational landings for wreckfish, as estimated by the SRD, reach or are projected to reach the recreational ACL specified in § 622.193(r)(2)(iii), the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for wreckfish in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for wreckfish, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL specified in § 622.193(r)(1)(ii) is exceeded during the same fishing year. The AA will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for wreckfish in or from the South Atlantic EEZ are zero.

    (iii) The recreational ACL for wreckfish is 21,650 lb (9,820 kg), round weight, for 2015; 21,185 lb (9,609 kg), round weight, for 2016; 20,710 lb (9,394 kg), round weight, for 2017; 20,315 lb (9,215 kg), round weight, for 2018; 19,840 lb (8,999 kg), round weight, for 2019; and 19,455 lb (8,825 kg), round weight, for 2020 and subsequent fishing years.

    (t) Atlantic spadefish—(1) Commercial sector—(i) If commercial landings for Atlantic spadefish, as estimated by the SRD, reach or are projected to reach the commercial ACL of 150,552 lb (68,289 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of Atlantic spadefish is prohibited and harvest or possession of Atlantic spadefish in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for Atlantic spadefish, as estimated by the SRD, exceed the ACL, and the combined commercial and recreational ACL of 812,478 lb (368,534 kg), round weight, is exceeded, and Atlantic spadefish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for Atlantic spadefish, as estimated by the SRD, reach or are projected to reach the recreational ACL of 661,926 lb (300,245 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for Atlantic spadefish in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for Atlantic spadefish, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if Atlantic spadefish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 812,478 lb (368,534 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for Atlantic spadefish in or from the South Atlantic EEZ are zero.

    (u) Hogfish—(1) Commercial sector—(i) If commercial landings for hogfish, as estimated by the SRD, reach or are projected to reach the commercial ACL of 49,469 lb (22,439 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of hogfish is prohibited and harvest or possession of hogfish in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for hogfish, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 134,824 lb (61,155 kg), round weight, is exceeded, and hogfish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for hogfish, as estimated by the SRD, reach or are projected to reach the recreational ACL of 85,355 lb (38,716 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for hogfish in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for hogfish, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if hogfish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 134,824 lb (61,155 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for hogfish in or from the South Atlantic EEZ are zero.

    (v) Red porgy—(1) Commercial sector—(i) If commercial landings for red porgy, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.190(a)(6), the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) If commercial landings for red porgy, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 315,384 lb (143,056 kg), gutted weight, 328,000 lb (148,778 kg), round weight, is exceeded during the same fishing year, and red porgy are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL in the following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for red porgy, as estimated by the SRD, reach or are projected to reach the recreational ACL of 157,692 lb (71,528 kg), gutted weight, 164,000 lb (74,389 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for red porgy in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for red porgy, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 315,384 lb (143,056 kg), gutted weight, 328,000 lb (148,778 kg), round weight, is exceeded during the same fishing year. The AA will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for red porgy in or from the South Atlantic EEZ are zero.

    (w) Other porgies complex (including jolthead porgy, knobbed porgy, whitebone porgy, scup, and saucereye porgy)—(1) Commercial sector—(i) If commercial landings for the other porgies complex, as estimated by the SRD, reach or are projected to reach the commercial ACL of 36,348 lb (16,487 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the other porgies complex for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of jolthead porgy, knobbed porgy, whitebone porgy, scup, and saucereye porgy is prohibited, and harvest or possession of any of these species in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for the other porgies complex, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 143,262 lb (64,983 kg), round weight, is exceeded, and at least one of the species in the complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for the other porgies complex, as estimated by the SRD, reach or are projected to reach the recreational ACL of 106,914 lb (48,495 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if any stock in the other porgies complex is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for any species in the other porgies complex in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for the other porgies complex, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if one of the species in the complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 143,262 lb (64,983 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for any species in the other porgies complex in or from the South Atlantic EEZ are zero.

    (x) Grunts complex (including white grunt, sailor's choice, tomtate, and margate)—(1) Commercial sector—(i) If commercial landings for the grunts complex, as estimated by the SRD, reach or are projected to reach the commercial ACL of 217,903 lb (98,839 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for this complex for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of white grunt, sailor's choice, tomtate, and margate is prohibited, and harvest or possession of these species in or from the South Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (ii) If commercial landings for the grunts complex, as estimated by the SRD, exceed the commercial ACL, and the combined commercial and recreational ACL of 836,025 lb (379,215 kg), round weight, and at least one of the species in the complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector—(i) If recreational landings for the grunts complex, as estimated by the SRD, reach or are projected to reach the recreational ACL of 618,122 lb (280,375 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if any stock in the grunts complex is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for any species in the grunts complex in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings for the grunts complex, as estimated by the SRD, exceed the recreational ACL, then during the following fishing year recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if at least one of the species in the grunts complex is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 836,025 lb (379,215 kg), round weight, is exceeded during the same fishing year. NMFS will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for any species in the grunts complex in or from the South Atlantic EEZ are zero.

    4. In § 622.251, revise paragraph (a) to read as follows:
    § 622.251 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

    (a) Commercial sector—(1) If commercial landings for golden crab, as estimated by the SRD, reach or are projected to reach the ACL of 2 million lb (907,185 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the golden crab fishery for the remainder of the fishing year. On and after the effective date of such a notification, all harvest, possession, sale, or purchase of golden crab in or from the South Atlantic EEZ is prohibited.

    (2) If commercial landings for golden crab, as estimated by the SRD, exceed the ACL, and the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the ACL in the following fishing year by the amount of the ACL overage in the prior fishing year.

    5. In § 622.280, revise paragraphs (a)(1)(i) and (a)(2)(i) and the last two sentences in paragraph (b)(1)(i) to read as follows:
    § 622.280 Annual catch limits (ACLs) and accountability measures (AMs).

    (a) * * *

    (1) * * *

    (i) If commercial landings for Atlantic dolphin, as estimated by the SRD, reach or are projected to reach the commercial ACL of 1,534,485 lb (696,031 kg), round weight, the AA will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. On and after the effective date of such a notification, all sale or purchase of Atlantic dolphin is prohibited and harvest or possession of Atlantic dolphin in or from the Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for Atlantic dolphin and wahoo has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    (2) * * *

    (i) If recreational landings for Atlantic dolphin, as estimated by the SRD, exceed the recreational ACL of 13,810,361 lb (6,264,274 kg), round weight, then during the following fishing year recreational landings will be monitored for a persistence in increased landings.

    (b) * * *

    (1) * * *

    (i) * * * On and after the effective date of such a notification, all sale or purchase of Atlantic wahoo is prohibited and harvest or possession of Atlantic wahoo in or from the Atlantic EEZ is limited to the bag and possession limits. These bag and possession limits apply in the Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for Atlantic dolphin and wahoo has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    [FR Doc. 2015-24576 Filed 9-28-15; 8:45 am] BILLING CODE 3510-22-P
    80 188 Tuesday, September 29, 2015 Notices DEPARTMENT OF AGRICULTURE Forest Service Plumas National Forest; California; Plumas National Forest Over-Snow Vehicle (OSV) Use Designation Environmental Impact Statement AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare an environmental impact statement.

    SUMMARY:

    The Forest Service, U.S. Department of Agriculture will prepare an Environmental Impact Statement (EIS) on a proposal to designate over-snow vehicle (OSV) use on National Forest System roads, National Forest System trails, and Areas on National Forest System lands within the Plumas National Forest; and to identify snow trails for grooming within the Plumas National Forest. In addition, the Forest Service proposes to:

    1. Formally adopt California State Parks' OSV snow grooming standards requiring a minimum of 12 inches of snow depth before grooming can occur;

    2. Implement a forest-wide snow depth requirement for OSV use that would provide for public safety and natural and cultural resource protection by allowing OSV use, both on-trail and off-trail in designated Areas, when unpacked snow depths equal or exceed 12 inches. Exceptions would be allowed in order for OSVs to access higher terrain and deeper snow when snow depths are less than 12 inches, as long as this use does not cause visible damage to the underlying surface. Most groomed snow trails are co-located on underlying paved, dirt, and gravel National Forest System roads and trails;

    3. Identify snow trails for grooming on the Plumas National Forest for OSV use;

    4. Restrict OSV use to designated snow trails in specified areas;

    5. Enact OSV prohibitions in certain areas.

    This proposal would be implemented on all of the Plumas National Forest. DATES:

    Comments concerning the scope of the analysis must be received by October 29, 2015. The draft environmental impact statement is expected in February 2017 and the final environmental impact statement is expected in August 2017.

    ADDRESSES:

    Send written comments to David C. Wood, on behalf of Daniel A. Lovato, Acting Forest Supervisor, Plumas National Forest, 159 Lawrence Street, Quincy, CA 95971. Comments may also be sent via facsimile to (530) 283-7746. Comments may also be submitted on the Plumas National Forest OSV Designation Web page: http://www.fs.usda.gov/project/?project=47124.

    Individuals who use telecommunication devices for the deaf (TTY) may call the Federal Information Relay Service (FIRS) at (800) 877-8339 TTY, 24 hours a day, 7 days a week.

    FOR FURTHER INFORMATION CONTACT:

    David C. Wood, Acting Public Services and Engineering Staff Officer, Plumas National Forest, 159 Lawrence Street, Quincy, CA 95971, (530) 283-2050; [email protected]

    SUPPLEMENTARY INFORMATION:

    The following summarizes how the Forest Service currently manages OSV use on the approximately 1,197,900-acre Plumas National Forest:

    1. Approximately 160 miles of National Forest System OSV trails exist on the Plumas National Forest;

    2. Of the 160 miles of National Forest System OSV trails, approximately 136 are groomed for OSV use;

    3. Approximately 85 miles of National Forest System trails are closed to OSV use, but accessible from Areas otherwise open to off-trail, cross-country OSV use;

    4. Approximately 1,163,550 acres of National Forest System land are open to off-trail, cross-country OSV use; and

    5. Approximately 34,850 acres of National Forest System land are closed to OSV use.

    Travel Management Rule Subpart C: The Forest Service issued a final rule governing OSV management (Subpart C of the Travel Management Rule, 36 CFR part 212) in the Federal Register on January 28, 2015, and this rule went into effect on February 27, 2015 (80 FR 4500, Jan. 28, 2015). Subpart C of the Travel Management Rule states,

    “Over-snow vehicle use on National Forest System roads, on National Forest System trails, and in areas on National Forest System lands shall be designated by the Responsible Official on administrative units or Ranger Districts, or parts of administrative units or Ranger Districts, of the National Forest System where snowfall is adequate for that use to occur, and, if appropriate, shall be designated by class of vehicle and time of year, provided that the following uses are exempted from these decisions:

    1. Limited administrative use by the Forest Service;

    2. Use of any fire, military, emergency, or law enforcement vehicle for emergency purposes;

    3. Authorized use of any combat or combat support vehicle for national defense purposes;

    4. Law enforcement response to violations of law, including pursuit; and

    5. Over-snow vehicle use that is specifically authorized under a written authorization issued under Federal law or regulations” (36 CFR 212.81(a)).

    The designations resulting from this analysis would only apply to the use of OSVs. An OSV is defined in the Forest Service's Travel Management Rule as “a motor vehicle that is designed for use over snow and that runs on a track or tracks and/or a ski or skis, while in use over snow” (36 CFR 212.1). OSV use designations made as a result of the analysis in this environmental impact statement would conform to subpart C of the Travel Management Rule. OSV use that is inconsistent with the OSV use designations made under this decision would be prohibited under 36 CFR 261.14.

    These designations would not affect valid existing rights held by federally recognized tribes, counties, or private individuals, including treaty rights, other statutory rights, or private rights-of-way.

    Snow Trail Grooming Program: For over 30 years, the Forest Service, Pacific Southwest Region, in cooperation with the California Department of Parks and Recreation (California State Parks) Off-highway Motor Vehicle Division (OHMVR), has enhanced winter recreation, and more specifically, snowmobiling recreation, by maintaining National Forest System trails (snow trails) by grooming snow for snowmobile use. Most groomed snow trails are co-located on underlying National Forest System roads and trails. Some grooming occurs on County roads and closed snow-covered highways, and some routes proceed cross-country over snow. Grooming activities are funded by the state off-highway vehicle trust fund.

    In 2013, the Forest Service entered into a Settlement Agreement with Snowlands Network et al., to “complete appropriate NEPA [National Environmental Policy Act] analysis(es) to identify snow trails for grooming” on the Plumas National Forest and four other national forests in California. The Forest Service will comply with the terms of the Settlement Agreement for the Plumas National Forest by completing this analysis. Other requirements of the Settlement Agreement are listed in the “Need for Analysis” section, below.

    Purpose and Need for Action

    One purpose of this project is to effectively manage OSV use on the Plumas National Forest to provide access, ensure that OSV use occurs when there is adequate snow, promote the safety of all users, enhance public enjoyment, minimize impacts to natural and cultural resources, and minimize conflicts among the various uses.

    There is a need to provide a manageable, designated OSV system of trails and Areas within the Plumas National Forest, that is consistent with and achieves the purposes of the Forest Service Travel Management Rule at 36 CFR part 212. This action responds to direction provided by the Forest Service's Travel Management Rule.

    The existing system of available OSV trails and Areas on the Plumas National Forest is the culmination of multiple agency decisions over recent decades. Public OSV use of the majority of this available system continues to be manageable and consistent with current travel management regulations. Exceptions have been identified, based on internal and public input and the criteria listed at 36 CFR 212.55. These include needs to provide improved access for OSV users and formalize prohibitions required by Forest Plan and other management direction. These exceptions represent additional needs for change, and in these cases, changes are proposed to meet the overall objectives.

    A second purpose of this project is to identify OSV trails where the Forest Service or its contractors would conduct grooming for OSV use. Under the terms of the Settlement Agreement between the Forest Service and Snowlands Network et al., the Forest Service is required to complete the appropriate NEPA analysis to identify snow trails for grooming on the Plumas National Forest.

    The snow trail grooming analysis would also address the need to provide a high-quality snowmobile trail system on the Plumas National Forest that is smooth and stable for the rider. Groomed trails are designed so that the novice rider can use them without difficulty.

    Need for Analysis

    Subpart C of the Forest Service Travel Management Regulation requires the Forest Service to designate over-snow vehicle (OSV) use on National Forest System roads, National Forest System trails, and Areas on National Forest System lands. Both decisions will be informed by an analysis as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.).

    Subpart C of the Travel Management Regulation specifies that all requirements of subpart B of the Travel Management Regulations will continue to apply to the designation decision, including:

    1. Public involvement as required by the National Environmental Policy Act (36 CFR 212.52);

    2. Coordination with Federal, State, county, and other local governmental entities and tribal governments (36 CFR 212.53);

    3. Revision of designations (36 CFR 212.54);

    4. Consideration of the criteria for designation of roads, trails, and Areas (36 CFR 212.55);

    5. Identification of designated uses on a publicly available use map of roads, trails, and Areas (36 CFR 212.56); and

    6. Monitoring of effects (36 CFR 212.57).

    Pursuant to the Settlement Agreement, the Forest Service is required to complete an appropriate NEPA analysis to identify snow trails for grooming. Furthermore, additional terms of the Settlement Agreement require the Forest Service to:

    1. Analyze ancillary activities such as the plowing of related parking lots and trailheads as part of the effects analysis;

    2. Consider a range of alternative actions that would result in varying levels of snowmobile use; and

    3. Consider an alternative submitted by Plaintiffs and/or Intervenors during the scoping period in the NEPA analysis so long as the alternative meets the purpose and need, and is feasible and within the scope of the NEPA analysis.

    Proposed Action

    The Forest Service proposes several actions on the Plumas National Forest to be analyzed as required by the National Environmental Policy Act (NEPA). The actions proposed are as follows:

    1. To designate OSV use on National Forest System roads, National Forest System trails, and Areas on National Forest System lands within the Plumas Nati