Federal Register Vol. 80, No.191,

Federal Register Volume 80, Issue 191 (October 2, 2015)

Page Range59549-60026
FR Document

80_FR_191
Current View
Page and SubjectPDF
80 FR 60023 - National Energy Action Month, 2015PDF
80 FR 59830 - Sunshine Act Meeting NoticePDF
80 FR 59817 - Sunshine Act MeetingPDF
80 FR 59667 - Affiliation for Business Loan Programs and Surety Bond Guarantee ProgramPDF
80 FR 59845 - U.S. Department of State Advisory Committee on Private International Law (ACPIL): Public Meeting on Electronic CommercePDF
80 FR 59580 - Technical Amendments to Regulations; CorrectionPDF
80 FR 59808 - 60-Day Notice of Proposed Information Collection: Contractor's Requisition-Project MortgagesPDF
80 FR 59773 - Agency Information Collection Activities; Proposed Renewal; Comment RequestPDF
80 FR 59810 - 60-Day Notice of Proposed Information Collection: Manufactured Housing SurveyPDF
80 FR 59732 - Circular Welded Carbon Steel Pipes and Tubes From Thailand: Final Results of Antidumping Duty Administrative Review; 2013-2014PDF
80 FR 59775 - Registration Review; Conventional, Biopesticide and Antimicrobial Pesticide Dockets Opened for Review and CommentPDF
80 FR 59731 - Citric Acid and Certain Citrate Salts from the People's Republic of China: Rescission of Countervailing Duty Administrative Review; 2014PDF
80 FR 59782 - Medicare, Medicaid, and Children's Health Insurance Programs; Announcement of the Advisory Panel on Clinical Diagnostic Laboratory Tests Meeting on October 19, 2015PDF
80 FR 59804 - Senior Executive Service Performance Review BoardPDF
80 FR 59734 - Certain Tissue Paper Products From the People's Republic of China: Final Results of Expedited Sunset Review of the Antidumping Duty OrderPDF
80 FR 59733 - Stainless Steel Wire Rod From Italy, Japan, the Republic of Korea, Spain, and Taiwan: Final Results of the Expedited Sunset Reviews of the Antidumping Duty OrdersPDF
80 FR 59809 - Multifamily, Health Care Facilities, and Hospital Mortgage Insurance Premiums for Fiscal Year (FY) 2016PDF
80 FR 59807 - 60-Day Notice of Proposed Information Collection: Application for Rural Capacity Building for Community Development and Affordable Housing NOFAPDF
80 FR 59833 - Advisory Committee on Reactor Safeguards (ACRS), Meeting of the ACRS Subcommittee on Planning and Procedures; Notice of MeetingPDF
80 FR 59813 - Third Call for Nominations to the Utah Resource Advisory CouncilPDF
80 FR 59813 - Notice of Intent To Solicit Nominations for the Front Range Resource Advisory Council, ColoradoPDF
80 FR 59727 - Idaho Roadless Area Boundary Modification; Caribou-Targhee National ForestPDF
80 FR 59664 - Hours of Service for Drivers: Regulatory Guidance Concerning the Editing of Automatic On-Board Recording Device (AOBRD) InformationPDF
80 FR 59772 - Blue Ridge Plating Company Superfund Site; Arden, Buncombe County, North Carolina; Notice Of SettlementPDF
80 FR 59802 - Information Collection Request to Office of Management and BudgetPDF
80 FR 59848 - Hours of Service of Drivers: R&R Transportation Group; Application for ExemptionPDF
80 FR 59801 - Information Collection Request to Office of Management and BudgetPDF
80 FR 59665 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; 2015 Recreational Accountability Measure and Closure for Red GrouperPDF
80 FR 59831 - License Renewal for Sequoyah Nuclear Plant, Units 1 and 2PDF
80 FR 59832 - Florida Power & Light Company Turkey Point Nuclear Generating, Units 3 and 4PDF
80 FR 59765 - Combined Notice of FilingsPDF
80 FR 59772 - Combined Notice of Filings #2PDF
80 FR 59760 - Combined Notice of Filings #1PDF
80 FR 59785 - M4E(R2): The Common Technical Document-Efficacy; International Conference on Harmonisation; Draft Guidance for Industry; AvailabilityPDF
80 FR 59787 - Identification of Alternative In Vitro Bioequivalence Pathways Which Can Reliably Ensure In Vivo Bioequivalence of Product Performance and Quality of Non-Systemically Absorbed Drug Products for Animals; Reopening of the Comment PeriodPDF
80 FR 59833 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Fukushima; Notice of MeetingPDF
80 FR 59772 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of GeorgiaPDF
80 FR 59831 - Advisory Committee on Reactor Safeguards; Meeting of the ACRS Subcommittee on Future Plant Designs; Notice of MeetingPDF
80 FR 59786 - An Evaluation of the Prescription Drug User Fee Act Workload Adjuster; Request for CommentsPDF
80 FR 59829 - Advisory Committee on Reactor Safeguards; Notice of MeetingPDF
80 FR 59811 - Aquatic Nuisance Species Task Force MeetingPDF
80 FR 59800 - Towing Safety Advisory Committee; October 2015 MeetingPDF
80 FR 59737 - Fisheries of the U.S. Caribbean; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
80 FR 59737 - Caribbean Fishery Management Council; Public MeetingPDF
80 FR 59739 - Fisheries of the South Atlantic; South Atlantic Fishery Management Council; Public MeetingPDF
80 FR 59736 - Fisheries of the Gulf of Mexico; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
80 FR 59781 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
80 FR 59781 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 59756 - President's Council of Advisors on Science and TechnologyPDF
80 FR 59758 - Amendment to an Approved Agency Information CollectionPDF
80 FR 59779 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
80 FR 59740 - Procurement List; DeletionsPDF
80 FR 59740 - Procurement List; Proposed Additions and DeletionPDF
80 FR 59742 - Notice of Interim Approval for Southeastern Power Administration Cumberland SystemPDF
80 FR 59561 - Fee Increases for Overtime ServicesPDF
80 FR 59557 - Importation of Tomato Plantlets in Approved Growing Media From MexicoPDF
80 FR 59551 - Golden Nematode; Removal of Regulated Areas in Orleans, Nassau, and Suffolk Counties, New YorkPDF
80 FR 59778 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 59778 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 59738 - Sanctuary System Business Advisory Council: Public MeetingPDF
80 FR 59728 - San Bernardino National Forest, California, Proposed North-South Project EIR/EISPDF
80 FR 59847 - Notice of Opportunity for Public Comment on Surplus Property Release at Manchester-Boston Regional Airport in Manchester, NHPDF
80 FR 59846 - Notice of Opportunity for Public Comment on Surplus Property Release at Brunswick Executive Airport in Brunswick, MEPDF
80 FR 59846 - Petition for Exemption; Summary of Petition Received; the Goodwyn GroupPDF
80 FR 59724 - Notice of Request for Extension of Approval of an Information Collection; Importation of Shelled Peas From KenyaPDF
80 FR 59847 - Notice To Amend Federal Grant Assurance Obligations at Elko Regional Airport (EKO), Elko, NevadaPDF
80 FR 59723 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Baby Corn and Baby Carrots From ZambiaPDF
80 FR 59720 - Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Pork-Filled Pasta ProductsPDF
80 FR 59721 - International Trade Data System Test Concerning the Electronic Submission to the Automated Commercial Environment of Data Using the Partner Government Agency Message SetPDF
80 FR 59778 - Telemarketing Sales Rule FeesPDF
80 FR 59725 - Notice of Request for Approval of an Information Collection; Viruses, Serums, Toxins, and Analogous Products; Packaging and LabelingPDF
80 FR 59816 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Firearms Transaction Record, Part I, Over-the-CounterPDF
80 FR 59806 - 60-Day Notice of Proposed Information Collection: Supplement to Application for Federally Assisted HousingPDF
80 FR 59854 - Sanctions Actions Pursuant to Executive Orders 13224PDF
80 FR 59791 - National Cancer Institute; Notice of Closed MeetingsPDF
80 FR 59850 - Bridgestone Americas Tire Operations, LLC, Receipt of Petition for Decision of Inconsequential NoncompliancePDF
80 FR 59855 - Commission on CarePDF
80 FR 59814 - Notice of November 4-5, 2015, Meeting of the National Park System Advisory BoardPDF
80 FR 59815 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-R Consortium, Inc.PDF
80 FR 59815 - Ironing Tables and Certain Parts Thereof From ChinaPDF
80 FR 59741 - Notice of Open House-Draft Environmental Impact Statement for Updated Water Control Manuals for the Apalachicola-Chattahoochee-Flint River BasinPDF
80 FR 59816 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-The Open Group, L.L.C.PDF
80 FR 59805 - Agency Information Collection Activities: Application for Travel Document (Carrier Documentation), Form I-131A; New CollectionPDF
80 FR 59725 - Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service DeliveryPDF
80 FR 59729 - Submission for OMB Review; Comment RequestPDF
80 FR 59726 - Nominations Open for the Vacancies on the National Advisory Council on Maternal, Infant and Fetal NutritionPDF
80 FR 59705 - Wireline Competition Bureau Further Extends Comment Deadlines in Special Access ProceedingPDF
80 FR 59704 - Approval and Promulgation of Implementation Plans; State of Missouri, Limited Maintenance Plan for the St. Louis Nonclassifiable Maintenance Area for the 8-Hour Carbon Monoxide National Ambient Air Quality StandardPDF
80 FR 59611 - Approval and Promulgation of Implementation Plans; State of Missouri, Limited Maintenance Plan for the St. Louis Nonclassifiable Maintenance Area for the 8-Hour Carbon Monoxide National Ambient Air Quality StandardPDF
80 FR 59731 - Notice of Public Meeting of the North Carolina (State) Advisory Committee (SAC) for a meeting to discuss potential project topics.PDF
80 FR 59730 - Notice of Public Meeting of the Kentucky Advisory Committee for a Meeting To Welcome New Members of the Committee and Discuss Potential Project TopicsPDF
80 FR 59730 - Agenda and Notice of Public Meeting of the Connecticut Advisory CommitteePDF
80 FR 59761 - San Diego County Water Authority, City of San Diego; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing ProcessPDF
80 FR 59757 - Updating and Improving the DOE Methodology for Assessing the Cost-Effectiveness of Building Energy CodesPDF
80 FR 59575 - Repeal of the Exempt Commercial Market and Exempt Board of Trade ExemptionsPDF
80 FR 59634 - Application Procedures, Execution and Filing of Forms: Correction of State Office Address for Filings and Recordings, Including Proper Offices for Recording of Mining Claims; Arkansas, Iowa, Louisiana, Minnesota, Missouri, and all States East of the Mississippi RiverPDF
80 FR 59768 - Baltimore Power Company LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 59769 - Sandstone Solar LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 59761 - North American Electric Reliability Corporation: Notice of FilingPDF
80 FR 59764 - Town of Bedford, Virginia; Notice of Application for Amendment and Soliciting Comments, Motions To Intervene, and ProtestsPDF
80 FR 59767 - FirstLight Hydro Generating Company: Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and ProtestsPDF
80 FR 59767 - Woodland Pulp LLC: Notice of Availability of Final Environmental AssessmentPDF
80 FR 59759 - Latigo Wind Park, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 59759 - Koch Energy Services, LLC: Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 59766 - Combined Notice of Filings #1PDF
80 FR 59762 - Combined Notice of Filings #1PDF
80 FR 59769 - National Grid LNG, LLC: Notice of Intent To Prepare an Environmental Document for the Planned Fields Point Liquefaction Project, Request for Comments on Environmental Issues, and Notice of Public Scoping MeetingPDF
80 FR 59763 - FFP Project 92, LLC; Notice of Application Accepted for Filing, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments, Recommendations, Preliminary Terms and Conditions, and Preliminary Fishway PrescriptionsPDF
80 FR 59764 - Salvatore & Michelle Shifrin; Mansfield Hollow Hydro, LLC; Notice of Transfer of ExemptionPDF
80 FR 59769 - National Gas & Electric, LLC: Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 59762 - Combined Notice of FilingsPDF
80 FR 59850 - Petition for Waiver of CompliancePDF
80 FR 59735 - Submission for OMB Review; Comment RequestPDF
80 FR 59705 - Petitions for Reconsideration of Action in Rulemaking ProceedingPDF
80 FR 59777 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
80 FR 59635 - Television Market Modification; Statutory ImplementationPDF
80 FR 59852 - Notice of Rights and Protections Available Under the Federal Antidiscrimination and Whistleblower Protection LawsPDF
80 FR 59695 - Approval and Promulgation of Air Quality Implementation Plans; State of Iowa; 2015 Iowa State Implementation Plan for the 2008 Lead StandardPDF
80 FR 59796 - Prospective Grant of Exclusive License: Miniature Serial Sectioning Microtome for Block-Face ImagingPDF
80 FR 59790 - Prospective Grant of Exclusive License: Development of Non-viral Adoptive Cell Transfer-based Immunotherapies (ACT) for the Treatment and Prophylaxis of Patients With Metastatic CancerPDF
80 FR 59798 - Prospective Grant of Exclusive License: Development of a ME-TARP Based ImmunotherapyPDF
80 FR 59794 - Prospective Grant of Start-Up Exclusive License: Differential Expression of Molecules Associated With Acute StrokePDF
80 FR 59794 - Government-Owned Inventions; Availability for LicensingPDF
80 FR 59799 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 59798 - Prospective Grant of Exclusive License: Analytical Instruments Utilizing Condensation Particle Counters for the Detection and Analysis of Small Aerosol ParticlesPDF
80 FR 59794 - National Institute of General Medical Sciences; Notice of Closed MeetingsPDF
80 FR 59791 - Center For Scientific Review; Notice of Closed MeetingsPDF
80 FR 59797 - Prospective Grant of a Start-up Exclusive Commercial License Agreement: Development of MHC Class II Restricted T Cell Epitopes From the Cancer Antigen, NY ESO-1, for the Treatment of Human CancersPDF
80 FR 59736 - Marine Mammals; File No. 19257PDF
80 FR 59738 - Marine Mammals; File No. 19590PDF
80 FR 59813 - Notice of Public Meeting; Wyoming Resource Advisory CouncilPDF
80 FR 59784 - Submission for OMB Review; Comment RequestPDF
80 FR 59837 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Approving Proposed Rule Change Amending the Eighth Amended and Restated Operating Agreement of the Exchange To Establish a Regulatory Oversight Committee as a Committee of the Board of Directors of the Exchange and Amending Other Rules of the ExchangePDF
80 FR 59844 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Pilot Period for the Exchange's Retail Liquidity Program Until March 31, 2016PDF
80 FR 59834 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Pilot Period for the Exchange's Retail Liquidity Program Until March 31, 2016PDF
80 FR 59836 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Pilot Period for the Exchange's Retail Liquidity Program Until March 31, 2016PDF
80 FR 59829 - Senior Executive Service Performance Review BoardPDF
80 FR 59790 - Centers for Disease Control and Prevention (CDC)/ Health Resources and Services Administration (HRSA) Advisory Committee on HIV, Viral Hepatitis and Sexually Transmitted Diseases (STD) Prevention and Treatment; Notice of MeetingPDF
80 FR 59788 - Agency Information Collection Activities: Proposed Collection: Public Comment RequestPDF
80 FR 59828 - Notice of Intent To Grant Partially Exclusive LicensePDF
80 FR 59610 - Revisions to the California State Implementation Plan, Butte County Air Quality Management District, Feather River Air Quality Management District, and San Luis Obispo County Air Pollution Control District; Correcting AmendmentPDF
80 FR 59817 - Notice of Exemption Involving Credit Suisse AG (Hereinafter, either Credit Suisse AG or the Applicant) Located in Zurich, SwitzerlandPDF
80 FR 59775 - Environmental Impact Statements; Notice of AvailabilityPDF
80 FR 59578 - Adoption of Updated EDGAR Filer ManualPDF
80 FR 59615 - Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Pennsylvania; Approval of the Base Year Emissions Inventory for the Liberty-Clairton Nonattainment Area for the 2006 24-Hour Fine Particulate Matter Standard and Approval of Transportation Conformity Insignificance Findings for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standards for the Liberty-Clairton Nonattainment AreaPDF
80 FR 59703 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Approval of the Base Year Emissions Inventory for the Liberty-Clairton Nonattainment Area for the 2006 24-Hour Fine Particulate Matter Standard and Approval of Transportation Conformity Insignificance Findings for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standards for the Liberty-Clairton Nonattainment AreaPDF
80 FR 59620 - Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to South Dakota Administrative CodePDF
80 FR 59624 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation Request and Associated Maintenance Plan for the Pittsburgh-Beaver Valley Nonattainment Area for the 1997 Annual and 2006 24-Hour Fine Particulate Matter StandardPDF
80 FR 59808 - Federal Property Suitable as Facilities To Assist the HomelessPDF
80 FR 59593 - Significant New Use Rules on Certain Chemical SubstancesPDF
80 FR 59706 - Implementation of Section 103 of the STELA Reauthorization Act of 2014, Totality of the Circumstances TestPDF
80 FR 59674 - Aviation Maintenance Technician SchoolsPDF
80 FR 59568 - Airworthiness Directives; Lockheed Martin Corporation/Lockheed Martin Aeronautics Company AirplanesPDF
80 FR 59690 - Disposition of HUD-Acquired Single Family Properties; Updating HUD's Single Family Property Disposition RegulationsPDF
80 FR 59975 - Endangered and Threatened Wildlife and Plants; Two Foreign Macaw SpeciesPDF
80 FR 59812 - Proclaiming Certain Lands as Reservation for the Shakopee Mdewakanton Sioux Community of MinnesotaPDF
80 FR 59672 - Airworthiness Directives; CFM International S.A. Turbofan EnginesPDF
80 FR 59570 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 59815 - Colorado River Basin Salinity Control Advisory Council Notice of Public MeetingPDF
80 FR 59803 - Committee Name: Homeland Security Academic Advisory CouncilPDF
80 FR 59549 - Adoption of Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; States and Tribal Mitigation Planning Regulations ChangePDF
80 FR 59852 - Application of Aviation Partners of Boynton Beach, LLC; D/B/A Hummingbird Air for Commuter AuthorityPDF
80 FR 59588 - Digital Performance Right in Sound Recordings and Ephemeral RecordingsPDF
80 FR 59627 - Benzovindiflupyr; Pesticide TolerancesPDF
80 FR 59739 - Commission of Fine Arts Notice of MeetingPDF
80 FR 59943 - Amendments Relating to Small Creditors and Rural or Underserved Areas Under the Truth in Lending Act (Regulation Z)PDF
80 FR 59581 - Department of Defense (DoD)-Defense Industrial Base (DIB) Cybersecurity (CS) ActivitiesPDF
80 FR 59857 - Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List Greater Sage-Grouse (Centrocercus urophasianus) as an Endangered or Threatened SpeciesPDF
80 FR 59851 - Hazardous Materials: Notice of Application for Special PermitsPDF

Issue

80 191 Friday, October 2, 2015 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Farm Service Agency

See

Food and Nutrition Service

See

Forest Service

See

Rural Utilities Service

Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau RULES Technical Amendments to Regulations; Correction, 59580-59581 2015-25190 Animal Animal and Plant Health Inspection Service RULES Fee Increases for Overtime Services, 59561-59568 2015-25101 Golden Nematode; Removal of Regulated Areas in Orleans, Nassau, and Suffolk Counties, New York, 59551-59557 2015-25099 Importation of Tomato Plantlets in Approved Growing Media From Mexico, 59557-59561 2015-25100 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Importation of Baby Corn and Baby Carrots From Zambia, 59723-59724 2015-25085 Importation of Pork-Filled Pasta Products, 59720-59721 2015-25084 Importation of Shelled Peas From Kenya, 59724 2015-25088 Viruses, Serums, Toxins, and Analogous Products; Packaging and Labeling, 59725 2015-25078 International Trade Data System Test: Electronic Submission to the Automated Commercial Environment of Data Using the Partner Government Agency Message Set, 59721-59723 2015-25082 Antitrust Division Antitrust Division NOTICES Changes under National Cooperative Research and Production Act: R Consortium, Inc., 59815-59816 2015-25063 The Open Group, LLC, 59816 2015-25056 Consumer Financial Protection Bureau of Consumer Financial Protection RULES Amendments Relating to Small Creditors and Rural or Underserved Areas Under the Truth in Lending Act (Regulation Z), 59944-59973 2015-24362 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59779-59780 2015-25105 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59781-59782 2015-25108 2015-25109 Meetings: Advisory Panel on Clinical Diagnostic Laboratory Tests, 59782-59784 2015-25162 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: April 2016 Current Population Survey Supplement on Child Support, 59784 2015-24972 Civil Rights Civil Rights Commission NOTICES Meetings: Connecticut Advisory Committee, 59730 2015-25034 Kentucky Advisory Committee, 59730-59731 2015-25035 North Carolina (State) Advisory Committee, 59731 2015-25036 Coast Guard Coast Guard NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59801-59803 2015-25131 2015-25133 Meetings: Towing Safety Advisory Committee, 59800-59801 2015-25114 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59735-59736 2015-25006
Commission Fine Commission of Fine Arts NOTICES Meetings, 59739 2015-24448 Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 59740-59741 2015-25103 2015-25104 Commodity Futures Commodity Futures Trading Commission RULES Repeal of the Exempt Commercial Market and Exempt Board of Trade Exemptions, 59575-59578 2015-25029 Copyright Royalty Board Copyright Royalty Board RULES Digital Performance Right in Sound Recordings and Ephemeral Recordings, 59588-59593 2015-24504 Defense Department Defense Department See

Engineers Corps

RULES Department of Defense Defense Industrial Base Cybersecurity Activities, 59581-59588 2015-24296
Employee Benefits Employee Benefits Security Administration NOTICES Exemptions: Credit Suisse AG, Zurich, Switzerland, 59817-59828 2015-24919 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

NOTICES Meetings: President's Council of Advisors on Science and Technology; Teleconference, 59756-59757 2015-25107 Rate Schedule Approvals: Southeastern Power Administration Cumberland System, 59742-59756 2015-25102
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59758-59759 2015-25106 Updating and Improving the DOE Methodology for Assessing the Cost-Effectiveness of Building Energy Codes, 59757-59758 2015-25031 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Updated Water Control Manuals for the Apalachicola-Chattahoochee-Flint River Basin; Open House Meeting, 59741-59742 2015-25057 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Butte County Air Quality Management District, Feather River Air Quality Management District, and San Luis Obispo County Air Pollution Control District; Correcting Amendment, 59610-59611 2015-24953 Missouri; Limited Maintenance Plan for the St. Louis, 59611-59615 2015-25037 Pennsylvania; Approval of the Base Year Emissions Inventory for the Liberty-Clairton Nonattainment Area for the 2006 24-Hour Fine Particulate Matter Standard and Approval of Transportation Conformity Insignificance Findings for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standards for the Liberty-Clairton Nonattainment Area, 59615-59620 2015-24877 Pennsylvania; Redesignation Request and Associated Maintenance Plan for the Pittsburgh-Beaver Valley Nonattainment Area for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standard, 59624-59627 2015-24851 South Dakota; Revisions to Administrative Code, 59620-59624 2015-24857 Pesticide Tolerances: Benzovindiflupyr, 59627-59634 2015-24467 Significant New Use Rules on Certain Chemical Substances, 59593-59610 2015-24846 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Iowa; 2015 Implementation Plan for the 2008 Lead Standard, 59695-59703 2015-24995 Missouri; Limited Maintenance Plan for the St. Louis, 59704-59705 2015-25038 Pennsylvania; Approval of the Base Year Emissions Inventory for the Liberty-Clairton Nonattainment Area for the 2006 24-Hour Fine Particulate Matter Standard and Approval of Transportation Conformity Insignificance Findings for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standards for the Liberty-Clairton Nonattainment Area, 59703-59704 2015-24873 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59773-59775 2015-25172 Cost Settlements under CERCLA: Blue Ridge Plating Co. Superfund Site Arden, Buncombe County, NC, 59772 2015-25134 Cross-Media Electronic Reporting: Georgia, Authorized Program Revision Approval, 59772-59773 2015-25119 Environmental Impact Statements; Availability, etc.; Weekly Receipts, 59775 2015-24908 Registration Reviews: Conventional, Biopesticide and Antimicrobial Pesticide Dockets Opened for Review and Comment, 59775-59777 2015-25167 Farm Service Farm Service Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery, 59725-59726 2015-25054 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Airplanes, 59568-59570 2015-24839 The Boeing Company Airplanes, 59570-59575 2015-24677 PROPOSED RULES Airworthiness Directives: CFM International S.A. Turbofan Engines, 59672-59674 2015-24729 Aviation Maintenance Technician Schools, 59674-59690 2015-24841 NOTICES Federal Grant Assurance Obligations: Elko Regional Airport (EKO), Elko, NV, 59847 2015-25086 Petitions for Exemptions; Summaries: Goodwyn Group, 59846 2015-25089 Surplus Property Releases: Brunswick Executive Airport, Brunswick, ME, 59846-59847 2015-25092 Manchester-Boston Regional Airport, Manchester, NH, 59847-59848 2015-25093 Federal Communications Federal Communications Commission RULES Television Market Modification; Statutory Implementation, 59635-59664 2015-24999 PROPOSED RULES Implementation of the STELA Reauthorization Act, Totality of the Circumstances Test, 59706-59719 2015-24843 Petitions for Reconsideration of Action in Rulemaking Proceeding, 59705 2015-25001 Wireline Competition Bureau Further Extends Comment Deadlines in Special Access Proceeding, 59705-59706 2015-25048 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59777-59778 2015-25000 Federal Emergency Federal Emergency Management Agency RULES Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; States and Tribal Mitigation Planning, 59549-59551 2015-24584 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Bedford, VA, 59764-59765 2015-25019 FFP Project 92, LLC, 59763-59764 2015-25011 FirstLight Hydro Generating Co., 59767-59768 2015-25018 San Diego County Water Authority, City of San Diego, 59761-59762 2015-25033 Combined Filings, 59760-59763, 59765-59767, 59772 2015-25008 2015-25013 2015-25014 2015-25123 2015-25124 2015-25125 Environmental Assessments; Availability, etc.: Woodland Pulp, LLC, 59767 2015-25017 Exemption Transfers: Salvatore and Michelle Shifrin Mansfield Hollow Hydro, LLC, 59764 2015-25010 Filings: North American Electric Reliability Corp., 59761 2015-25020 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Baltimore Power Co., LLC, 59768 2015-25022 Koch Energy Services, LLC, 59759 2015-25015 Latigo Wind Park, LLC, 59759 2015-25016 National Gas and Electric, LLC, 59769 2015-25009 Sandstone Solar LLC, 59769 2015-25021 Intents to Prepare Environmental Documents: National Grid LNG, LLC, Planned Fields Point Liquefaction Project; Environmental Issues, and Public Scoping Meeting, 59769-59772 2015-25012 Federal Motor Federal Motor Carrier Safety Administration RULES Hours of Service for Drivers: Regulatory Guidance Concerning the Editing of Automatic On-Board Recording Device Information, 59664-59665 2015-25135 NOTICES Hours of Service of Drivers; Exemption Applications: R and R Transportation Group, 59848-59850 2015-25132 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 59850 2015-25007 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 59778 2015-25097 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 59778 2015-25098 Federal Trade Federal Trade Commission NOTICES Telemarketing Sales Rule Fees, 59778-59779 2015-25081 Fish Fish and Wildlife Service RULES Endangered and Threatened Wildlife and Plants: Two Foreign Macaw Species, 59976-60021 2015-24820 PROPOSED RULES Endangered and Threatened Wildlife and Plants: Greater Sage-grouse (Centrocercus urophasianus); 12-Month Finding on Petition to List, 59858-59942 2015-24292 NOTICES Meetings: Aquatic Nuisance Species Task Force, 59811-59812 2015-25115 Food and Drug Food and Drug Administration NOTICES Evaluation of the Prescription Drug User Fee Act Workload Adjuster, 59786-59787 2015-25117 Guidance: M4E(R2)--The Common Technical Document--Efficacy; International Conference on Harmonisation, 59785-59786 2015-25122 Identification of Alternative In Vitro Bioequivalence Pathways Which Can Reliably Ensure In Vivo Bioequivalence of Product Performance, etc., 59787-59788 2015-25121 Food and Nutrition Food and Nutrition Service NOTICES Requests for Nominations: National Advisory Council on Maternal, Infant and Fetal Nutrition, 59726-59727 2015-25052 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 59854-59855 2015-25070 Forest Forest Service NOTICES Boundary Modifications: Idaho Roadless Area; Caribou-Targhee National Forest, 59727 2015-25136 Environmental Impact Statements; Availability, etc.: Proposed North-South Project, San Bernardino National Forest, CA, 59728-59729 2015-25095 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59788-59789 2015-24956 Meetings: Centers for Disease Control and Prevention/Health Resources and Services Administration Advisory Committee on HIV, Viral Hepatitis and Sexually Transmitted Diseases Prevention and Treatment, 59790 2015-24957 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

RULES Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; States and Tribal Mitigation Planning, 59549-59551 2015-24584 NOTICES Meetings: Homeland Security Academic Advisory Council, 59803-59804 2015-24585 Senior Executive Service Performance Review Boards, 59804-59805 2015-25157
Housing Housing and Urban Development Department PROPOSED RULES Disposition of HUD-Acquired Single Family Properties; Updating HUD's Single Family Property Disposition Regulations, 59690-59695 2015-24837 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Rural Capacity Building for Community Development and Affordable Housing NOFA, 59807 2015-25148 Contractor's Requisition-Project Mortgages, 59808 2015-25173 Manufactured Housing Survey, 59810-59811 2015-25171 Supplement to Application for Federally Assisted Housing, 59806-59807 2015-25072 Federal Property Suitable as Facilities to Assist the Homeless, 59808-59809 2015-24847 Multifamily, Health Care Facilities, and Hospital Mortgage Insurance Premiums for Fiscal Year 2016, 59809-59810 2015-25149 Indian Affairs Indian Affairs Bureau NOTICES Reservation Proclamations: Shakopee Mdewakanton Sioux Community of Minnesota, 59812 2015-24797 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

National Park Service

See

Reclamation Bureau

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Tissue Paper Products from the People's Republic of China; Expedited Sunset Review, 59734-59735 2015-25153 Circular Welded Carbon Steel Pipes and Tubes from Thailand, 59732-59733 2015-25168 Citric Acid and Certain Citrate Salts from the People's Republic of China, 59731-59732 2015-25166 Stainless Steel Wire Rod from Italy, Japan, the Republic of Korea, Spain, and Taiwan; Expedited Sunset Reviews, 59733-59734 2015-25151 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Ironing Tables and Certain Parts Thereof from China, 59815 2015-25061 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

See

Antitrust Division

See

Parole Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Firearms Transaction Record, Part I, Over-the-Counter, 59816-59817 2015-25075
Labor Department Labor Department See

Employee Benefits Security Administration

Land Land Management Bureau RULES Application Procedures, Execution and Filing of Forms: Correction of State Office Address for Filings and Recordings, Including Proper Offices for Recording of Mining Claims; Arkansas, Iowa, Louisiana, Minnesota, Missouri, and all States East of the Mississippi River, 59634-59635 2015-25027 NOTICES Meetings: Wyoming Resource Advisory Council, 59813 2015-24974 Requests for Nominations: Front Range Resource Advisory Council, Colorado, 59813-59814 2015-25142 Utah Resource Advisory Council, 59813 2015-25145 Library Library of Congress See

Copyright Royalty Board

NASA National Aeronautics and Space Administration NOTICES Exclusive Licenses, 59828-59829 2015-24955 National Endowment for the Arts National Endowment for the Arts NOTICES Senior Executive Service Performance Review Board Membership, 59829 2015-24963 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Highway National Highway Traffic Safety Administration NOTICES Petitions for Inconsequential Noncompliance: Bridgestone Americas Tire Operations, LLC, 59850-59851 2015-25067 National Institute National Institutes of Health NOTICES Exclusive Commercial License Agreements: Development of MHC Class II Restricted T Cell Epitopes from the Cancer Antigen, NY ESO-1, for the Treatment of Human Cancers, 59797-59798 2015-24982 Exclusive Licenses: Analytical Instruments Utilizing Condensation Particle Counters for the Detection and Analysis of Small Aerosol Particles, 59798 2015-24985 Development of a ME-TARP based Immunotherapy, 59798-59799 2015-24989 Development of Non-viral Adoptive Cell Transfer-based Immunotherapies for the Treatment and Prophylaxis of Patients with Metastatic Cancer, 59790-59791 2015-24990 Differential Expression of Molecules Associated with Acute Stroke, 59794 2015-24988 Miniature Serial Sectioning Microtome for Block-face Imaging, 59796-59797 2015-24994 Government-Owned Inventions; Availability for Licensing, 59794-59796 2015-24987 Meetings: Center for Scientific Review, 59791-59794, 59799-59800 2015-24983 2015-24986 National Cancer Institute, 59791 2015-25068 National Institute of General Medical Sciences, 59794 2015-24984 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Reef Fish Fishery of the Gulf of Mexico; 2015 Recreational Accountability Measure and Closure for Red Grouper, 59665-59666 2015-25129 NOTICES Meetings: Caribbean Fishery Management Council, 59737 2015-25112 Fisheries of the Gulf of Mexico Southeast Data, Assessment, and Review, 59736-59737 2015-25110 Fisheries of the South Atlantic; South Atlantic Fishery Management Council, 59739 2015-25111 Fisheries of the U.S. Caribbean; Southeast Data, Assessment, and Review, 59737-59738 2015-25113 Sanctuary System Business Advisory Council, 59738-59739 2015-25096 Permits: Marine Mammals; File No. 19257, 59736 2015-24976 Marine Mammals; File No. 19590, 59738 2015-24975 National Park National Park Service NOTICES Meetings: National Park System Advisory Board, 59814-59815 2015-25065 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Director's Decisions: Florida Power and Light Co., Turkey Point Nuclear Generating, Units 3 and 4, 59832-59833 2015-25126 License Renewals: Sequoyah Nuclear Plant, Units 1 and 2, 59831-59832 2015-25128 Meetings: Advisory Committee on Reactor Safeguards, 59829-59830 2015-25116 Advisory Committee on Reactor Safeguards Subcommittee on Fukushima, 59833-59834 2015-25120 Advisory Committee on Reactor Safeguards Subcommittee on Future Plant Design, 59831 2015-25118 Advisory Committee on Reactor Safeguards Subcommittee on Planning and Procedures, 59833 2015-25146 Meetings; Sunshine Act, 59830-59831 2015-25312 Parole Parole Commission NOTICES Meetings; Sunshine Act, 59817 2015-25205 2015-25208 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Applications for Special Permits, 59851-59852 2015-23370 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Energy Action Month (Proc. 9332), 60023-60026 2015-25350 Reclamation Reclamation Bureau NOTICES Meetings: Colorado River Basin Salinity Control Advisory Council, 59815 2015-24645 Rural Utilities Rural Utilities Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59729-59730 2015-25053 Securities Securities and Exchange Commission RULES Adoption of Updated EDGAR Filer Manual, 59578-59580 2015-24904 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: New York Stock Exchange LLC, 59837-59845 2015-24970 2015-24971 NYSE Arca, Inc., 59834-59835 2015-24969 NYSE MKT LLC, 59836-59837 2015-24968 Small Business Small Business Administration PROPOSED RULES Affiliation for Business Loan Programs and Surety Bond Guarantee Program, 59667-59672 2015-25204 State Department State Department NOTICES Meetings: Department of State Advisory Committee on Private International Law, 59845-59846 2015-25193 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

NOTICES Applications for Commuter Authority: Aviation Partners of Boynton Beach, LLC D/B/A Hummingbird Air, 59852 2015-24552 Rights and Protections Available Under the Federal Antidiscrimination and Whistleblower Protection Laws, 59852-59854 2015-24996
Treasury Treasury Department See

Foreign Assets Control Office

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Travel Document, Carrier Documentation, 59805-59806 2015-25055 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Commission on Care, 59855 2015-25066 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 59858-59942 2015-24292 Part III Bureau of Consumer Financial Protection, 59944-59973 2015-24362 Part IV Interior Department, Fish and Wildlife Service, 59976-60021 2015-24820 Part V Presidential Documents, 60023-60026 2015-25350 Reader Aids

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

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

80 191 Friday, October 2, 2015 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY 2 CFR Part 3002 Federal Emergency Management Agency 44 CFR Parts 13, 78, 79, 152, 201, 204, 206, 207, 208, 304, 360, and 361 [Docket ID: FEMA-2015-0012] RIN 1601-AA71 Adoption of Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; States and Tribal Mitigation Planning Regulations Change AGENCY:

Federal Emergency Management Agency, DHS.

ACTION:

Final rule.

SUMMARY:

On December 19, 2014, all Federal award-making agencies, including the Department of Homeland Security (DHS) and its component, the Federal Emergency Management Agency (FEMA), published a joint interim final rule implementing the Office of Management and Budget (OMB)'s Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. DHS and FEMA now adopt, with one change, the interim final rule as final. The change restores language in the FEMA State and Tribal mitigation planning regulations that was inadvertently removed by the interim final rule.

DATES:

Effective Date: November 2, 2015.

FOR FURTHER INFORMATION CONTACT:

Andrea Brandon, Director, Financial Assistance Policy and Oversight (FAPO), Office of the Chief Financial Officer (OCIO), DHS, at (202) 447-0675 or [email protected]. Paul Huang, Acting Division Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, DHS/FEMA, at (202) 646-3252 or [email protected].

SUPPLEMENTARY INFORMATION: I. Background

On November 23, 2009, the President issued Executive Order 13520 (“Reducing Improper Payments and Eliminating Waste in Federal Programs”). On February 28, 2011, the President issued a Presidential Memorandum (“Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments”). These documents directed OMB to work with Executive Branch agencies to potentially establish reforms on Federal grant policies.

In response, on October 27, 2011, OMB established the Council on Financial Assistance Reform, an interagency group of Executive Branch officials tasked with creating an accountable structure to coordinate financial assistance, streamline Federal grant-making requirements, ease administrative burdens, and strengthen Federal fund oversight to reduce risks of waste, fraud, and abuse.

On February 28, 2012, OMB published an Advanced Notice of Proposed Guidance. See 77 FR 11778. On February 1, 2013, OMB published a Notice of Proposed Guidance. See 78 FR 7282. Both documents solicited public comment on ideas for reforming the requirements that govern the management of Federal financial assistance awards. On December 26, 2013, OMB published the Uniform Guidance, which added Part 200 (“OMB Guidance”) to Title 2 (“Grants and Agreements”) of the Code of Federal Regulations. See 79 FR 75871. The Uniform Guidance included:

• The consolidation of eight previously-issued OMB Circulars on grants and awards;

• A uniform set of administrative requirements for grant recipients;

• A focus on grantee performance over compliance for accountability;

• An emphasis on efficient uses of information technology and shared services;

• A uniform set of cost principles that treats costs transparently and consistently;

• A limitation on allowable costs in order to make best uses of Federal resources;

• The standardization of business processes using consistent data element definitions;

• An emphasis on oversight by reviewing risks prior to awarding grants; and

• A uniform set of audit requirements that prioritizes identifying the risks of fraud, waste, and abuse.

The Uniform Guidance required Federal agencies to implement the policies and procedures applicable to Federal awards by promulgating a regulation to be effective by December 26, 2014. See 2 CFR 200.110.

On December 19, 2014, all Federal award-making agencies promulgated a joint interim final rule implementing the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. See 79 FR 75871. In the interim final rule, DHS adopted OMB's Guidance as DHS's own via 2 CFR part 3002, and FEMA removed 44 CFR part 13 (FEMA's grant administration regulations). Also, throughout Title 44, FEMA replaced all references to Part 13 with corresponding references to 2 CFR parts 200 and 3002, as applicable.

During the joint interim final rule's comment period, OMB received 61 comments from individuals and organizations. No comments OMB received referenced DHS or FEMA. Thus, DHS and FEMA are adopting the interim final rule as final, with one change.

II. Change to December 19, 2014 Interim Final Rule

FEMA's mitigation planning regulations are located at 44 CFR part 201, and set forth instructions on the policies and procedures for State, Tribal, and local hazard mitigation planning. Hazard mitigation is any sustained action taken to reduce or eliminate long-term risk to people and property from natural hazards and their effects. The purpose of hazard mitigation planning is to identify policies and actions that can be implemented over the long-term to reduce risk and future losses. State, Indian Tribal, and local governments are required to develop a hazard mitigation plan as one of the conditions for establishing eligibility for certain types of Federal non-emergency disaster assistance and FEMA mitigation grants.

The December 19, 2014 joint interim final rule contained an inadvertent error to FEMA's Standard State Mitigation Planning regulations at 44 CFR 201.4(c)(7) and to FEMA's Tribal Mitigation Planning regulations at 44 CFR 201.7(c)(6). Prior to the December 19, 2014 joint interim final rule, these sections read as published in Title 44 of the Code of Federal Regulations, revised as of October 1, 2014.

In the December 19, 2014 joint interim final rule, FEMA revised the first sentences of 44 CFR 201.4(c)(7) and 44 CFR 201.7(c)(6) with a general citation to 2 CFR parts 200 and 3002. However, FEMA unintentionally removed the second sentence of these sections and thus inadvertently removed a procedure by which States and Indian Tribal governments amend their mitigation plans when necessary to reflect changes in State, Indian Tribal, or Federal laws or regulations. In this final rule, FEMA is reinserting this provision.

While FEMA previously referenced 44 CFR 13.11(d) in both 44 CFR 201.4(c)(7) and in 44 CFR 201.7(c)(6), FEMA, as noted above, removed 44 CFR part 13 and replaced all references to Part 13 with corresponding references to 2 CFR parts 200 and 3002, as applicable. There are no corresponding pinpoint cites in 2 CFR part 200 or Part 3002 that replace the requirements found at 44 CFR 13.11(d). Thus, FEMA cannot carry this reference over to the revised regulations. FEMA regulations have included the procedure for States and Indian Tribal governments since 2002 and 2007, respectively, to amend their plans to reflect changes in State, Indian Tribal, or Federal laws, statutes and regulations, as applicable. As FEMA is simply reinserting an inadvertently removed and longstanding provision, this change does not create new program requirements. FEMA also describes these provisions in various guidance materials and is revising the references as applicable.1

1 State Multi-Hazard Planning Guidance, effective through March 5, 2016, https://www.fema.gov/media-library/assets/documents/103285; State Mitigation Plan Review Guide, effective on March 6, 2016, https://www.fema.gov/media-library/assets/documents/101659; Tribal Multi-Hazard Planning Guidance, https://www.fema.gov/media-library/assets/documents/18355.

III. Regulatory Analyses A. Executive Order 12866 Determination

Pursuant to Executive Order 12866, as amended, OMB's Office of Information and Regulatory Affairs (OIRA) has designated this final rule to be not significant.

B. Administrative Procedure Act

The Administrative Procedure Act (APA) provides that an agency may dispense with notice and comment rulemaking procedures when it promulgates an interpretive rule, a general statement of policy, or a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(b)(A). DHS is issuing this change to reinstate FEMA procedures inadvertently removed in the interim final rule, related to ensuring mitigation plan compliance with applicable laws and regulations. Thus, DHS finds that this part of the final rule relates to agency procedures and is exempt from notice and comment.

In addition, the APA provides that an agency may dispense with notice and comment rulemaking procedures when an agency, for good cause, finds those procedures are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(B). DHS is reinserting two provisions concerning mitigation plan compliance with applicable laws and regulations, a requirement that was already present in 44 CFR 201.4(c)(7) and 44 CFR 201.7(c)(6). Thus, DHS finds that notice and comment is unnecessary and that this part of the final rule is exempt from notice and comment.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires an agency that is issuing a final rule to provide a final regulatory flexibility analysis or to certify that the rule will not have a significant economic impact on a substantial number of small entities. This final rule imposes no cost as the common interim rule implemented OMB final guidance issued on December 26, 2013, and did not have a significant economic impact beyond the impact of the December 2013 guidance.

D. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48 (Mar. 22, 1995) (2 U.S.C. 1501 et seq.), requires Federal agencies to assess the effects of their discretionary regulatory actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. As the final rule would not have an impact greater than $100,000,000 or more in any one year, it is not an unfunded Federal mandate.

E. Paperwork Reduction Act (PRA) of 1995

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Ch. 3506; 5 CFR Appendix A.1) (PRA), DHS and FEMA reviewed this final rule and have determined that there are no new collections of information contained therein.

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

Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments,” (65 FR 67249, Nov. 9, 2000), applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive Order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal Government, or the agency consults with Tribal officials. DHS and FEMA have determined that this final rule does not have any Tribal implications.

G. Executive Order 13132 Determination

DHS and FEMA have determined that this final rule does not have any federalism implications, as required by Executive Order 13132.

List of Subjects 2 CFR Part 3002

Accounting, Administrative practice and procedure, Adult education, Aged, Agriculture, American Samoa, Bilingual education, Blind, Business and industry, Civil rights, Colleges and universities, Communications, Community development, Community facilities, Copyright, Credit, Cultural exchange programs, Educational facilities, Educational research, Education, Education of disadvantaged, Education of individuals with disabilities, Educational study programs, Electric power, Electric power rates, Electric utilities, Elementary and secondary education, Energy conservation, Equal educational opportunity, Federally affected areas, Government contracts, Grant programs, Grant programs-agriculture, Grant programs-business and industry, Grant programs-communications, Grant programs-education, Grant programs-energy, Grant programs-health, Grant programs-housing and community development, Grant programs-social programs, Grant administration, Guam, Home improvement, Homeless, Hospitals, Housing, Human research subjects, Indians, Indians-education, Infants and children, Insurance, Intergovernmental relations, International organizations, Inventions and patents, Loan programs, Loan programs social programs, Loan programs-agriculture, Loan programs-business and industry, Loan programs-communications, Loan programs-energy, Loan programs-health, Loan programs-housing and community development, Manpower training programs, Migrant labor, Mortgage insurance, Nonprofit organizations, Northern Mariana Islands, Pacific Islands Trust Territories, Privacy, Renewable Energy, Reporting and recordkeeping requirements, Rural areas, Scholarships and fellowships, School construction, Schools, Science and technology, Securities, Small businesses, State and local governments, Student aid, Teachers, Telecommunications, Telephone, Urban areas, Veterans, Virgin Islands, Vocational education, Vocational rehabilitation, Waste treatment and disposal, Water pollution control, Water resources, Water supply, Watersheds, Women.

44 CFR Part 13

Accounting, Grant programs, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.

44 CFR Part 78

Flood insurance, Grant programs.

44 CFR Part 79

Flood insurance, Grant programs.

44 CFR Part 152

Fire prevention, Grant programs, Reporting and recordkeeping requirements.

44 CFR Part 201

Administrative practice and procedure, Disaster assistance, Grant programs, Reporting and recordkeeping requirements.

44 CFR Part 206

Administrative practice and procedure, Coastal zone, Community facilities, Disaster assistance, Fire prevention, Grant programs-housing and community development, Housing, Insurance, Intergovernmental relations, Loan programs-housing and community development, Natural resources, Penalties, Reporting and recordkeeping requirements.

44 CFR Part 207

Administrative practice and procedure, Disaster assistance, Grant programs, Reporting and recordkeeping requirements.

44 CFR Part 208

Disaster assistance, grant programs.

44 CFR Part 304

American Samoa, Civil defense, Grant programs-National defense, Guam, Northern Mariana Islands, Reporting and recordkeeping requirements, Virgin Islands.

44 CFR Part 360

Civil defense, Disaster assistance, Education, Grant programs-education, Intergovernmental relations, Reporting and recordkeeping requirements.

44 CFR Part 361

Disaster assistance, Grant programs-housing and community development, Reporting and recordkeeping requirements.

Accordingly, the interim final rule amending 2 CFR part 3002 and 44 CFR parts 13, 78, 79, 152, 201, 204, 206, 207, 208, 304, 360, and 361, which was published in the Federal Register at 79 FR 75871 on December 19, 2014, is adopted as final with the following changes:

Title 44—Emergency Management and Assistance PART 201—MITIGATION PLANNING 1. The authority citation for Part 201 continues to read as follows: Authority:

Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.

2. Section 201.4 is amended by adding a sentence to the end of paragraph (c)(7) to read as follows:
§ 201.4 Standard State Mitigation Plans.

(c) * * *

(7) * * * The State will amend its plan whenever necessary to reflect changes in State or Federal statutes and regulations.

3. Section 201.7 is amended by adding a sentence to the end of paragraph (c)(6) to read as follows:
§ 201.7 Tribal Mitigation Plans.

(c) * * *

(6) * * * The Indian Tribal government will amend its plan whenever necessary to reflect changes in Tribal or Federal laws and statutes.

Dated: September 22, 2015. Jeh Charles Johnson, Secretary of Homeland Security.
[FR Doc. 2015-24584 Filed 10-1-15; 8:45 am] BILLING CODE 9111-66-P, 9110-17-P
DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 301 [Docket No. APHIS-2015-0040] Golden Nematode; Removal of Regulated Areas in Orleans, Nassau, and Suffolk Counties, New York AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Interim rule and request for comments.

SUMMARY:

We are amending the golden nematode regulations by removing areas in Orleans, Nassau, and Suffolk Counties in the State of New York from the list of generally infested areas. Surveys and other data have shown that certain areas in these counties are free of golden nematode, and we have determined that regulation of these areas is no longer necessary. As a result of this action, areas in Orleans, Nassau, and Suffolk Counties in the State of New York that have been listed as generally infested will be removed from the list of areas regulated for golden nematode. This action is necessary to relieve restrictions on certain areas that are no longer necessary.

DATES:

This interim rule is effective October 2, 2015. We will consider all comments that we receive on or before December 1, 2015.

ADDRESSES:

You may submit comments by either of the following methods:

Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0040.

Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0040, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0040 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT:

Mr. Jonathan M. Jones, National Policy Manager, Pest Management, Plant Protection and Quarantine, APHIS, 4700 River Road Unit 160, Riverdale, MD 20737; (301) 851-2128.

SUPPLEMENTARY INFORMATION: Background

The golden nematode (Globodera rostochiensis) is a destructive pest of potatoes and other solanaceous plants. Potatoes cannot be economically grown on land that contains large numbers of the nematode. The golden nematode has been determined to occur in the United States only in parts of the State of New York.

In 7 CFR part 301, the golden nematode quarantine regulations (§§ 301.85 through 301.85-10, referred to below as the regulations) set out procedures for determining the areas regulated for golden nematode and impose restrictions on the interstate movement of regulated articles from regulated areas.

Paragraph (a) of § 301.85-2 states that the Deputy Administrator, Plant Protection and Quarantine, Animal and Plant Health Inspection Service (APHIS), shall list as regulated areas each quarantined State or each portion thereof in which golden nematode has been found or in which there is reason to believe that golden nematode is present, or which it is deemed necessary to regulate because of their proximity to infestation or their inseparability for quarantine enforcement purposes from infested localities.

Paragraph (b) of § 301.85-2 states that the Deputy Administrator or an authorized inspector may temporarily designate any other premises in a quarantined State as a regulated area and a suppressive or generally infested area, in accordance with the criteria specified in paragraph (a).

Paragraph (c) of § 301.85-2 states that, in accordance with the criteria listed in § 301.852(a), the Deputy Administrator shall terminate the designation of any area listed as a regulated area and suppressive or generally infested area when he or she determines that such designation is no longer required.

Surveys and other data have revealed that certain areas in Orleans, Nassau, and Suffolk Counties of New York are free of golden nematode. Accordingly, on September 17, 2014, APHIS issued a Federal Order 1 to terminate the quarantine designation of specified areas within these three counties, thereby removing 600,524 acres from the golden nematode regulations. As a result, it is no longer necessary to regulate these areas or restrict the interstate movement of golden nematode regulated articles from these areas.

1 Domestic Quarantine Notice for Revision of Golden Nematode Regulated Area (DA-2014-43), September 17, 2014: http://www.aphis.usda.gov/plant_health/plant_pest_info/nematode/downloads/DA-2014-43.pdf.

Approximately 509 acres will remain under regulation in Nassau County, 68 acres in Orleans County, and 221,504 acres in Suffolk County. Further analysis continues in each of these counties that may lead to additional acres being eligible to be removed from regulation in the future.

Correction

In an interim rule dated January 9, 2013 (78 FR, 1713-1715, Docket No. APHIS-2012-0079), we amended the golden nematode regulations by removing areas in Livingston and Steuben Counties in New York from the list of generally infested areas. In that rule, the coordinates we used to delineate the revised areas under quarantine were formatted in such a way that they did not accurately represent the areas we wished to lift from restrictions. Therefore, we are publishing the corrected coordinates of the areas remaining under quarantine in Livingston and Steuben Counties in this rule.

Immediate Action

Immediate action is warranted to relieve restrictions that are no longer necessary on the specified areas in Orleans, Nassau, and Suffolk Counties in New York that have been regulated for golden nematode. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register.

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

This interim rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. The full analysis may be viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov) or obtained from the person listed under FOR FURTHER INFORMATION CONTACT.

APHIS has removed 600,524 acres from the golden nematode regulations in specific areas in three New York counties: Orleans, Nassau, and Suffolk. Of the areas remaining under regulation, 221,504 acres are in Suffolk County, 509 acres are in Nassau County, and 68 acres are in Orleans County.

Golden nematode is a major pest of potato and other many other solanaceous plants. Sale of many soil-related products is negatively impacted in areas under quarantine for golden nematode. We impose sanitation requirements on movement of agricultural equipment and non-agricultural entities that use earth-moving equipment. The pest is spread by the transport of cysts in soil, in particular through the inadvertent movement of infested soil attached to agricultural products, farming equipment, and other regulated articles.

In 2014, the State of New York harvested 15,800 acres of potatoes valued at approximately $55 million, with Suffolk County being the number one county in potato production. While there are no detailed potato data published by county, 42 entities in Suffolk County have been affected by the deregulation and of these 18 entities are potato growers. One potato farm has been affected by the deregulation in Nassau County. Deregulation of quarantine areas in Orleans County is not known to have affected any entities.

The 43 affected entities will benefit from no longer needing to satisfy compliance requirements of the quarantine. They may also find improved export opportunities. While the potato farmers as well as the rest of the affected entities may qualify as small entities, they are few in number and their share of the nation's potato industry is small. Even though New York ranks 12th in volume among the States that produce potatoes, the value of its production is only 1.7 percent of the value of all U.S. production.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

This rule contains no new 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 301

Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.

Accordingly, we are amending 7 CFR part 301 as follows:

PART 301—DOMESTIC QUARANTINE NOTICES 1. The authority citation for part 301 continues to read as follows: Authority:

7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.

Section 301.75-15 issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).

2. In § 301.85-2a, under the heading “New York,” in paragraph (1), the entries for Livingston County, Nassau County, Orleans County, Steuben County, and Suffolk County are revised to read as follows:
§ 301.85-2a Regulated areas; suppressive and generally infested areas. New York

(1) Generally infested area:

Livingston County. (A) That portion of land in the area of South Lima North Muck in the town of Lima bounded as follows: Beginning at a point along the north side of South Lima Rd. marked by latitude/longitude coordinates 42.8553, −77.6738; then north along a farm road to coordinates 42.8588, −77.6712; then east along a farm road to coordinates 42.8596, −77.6678; then north along a farm road to coordinates 42.8624, −77.6683; then east along a farm road to coordinates 42.8624, −77.6648; then north along a farm road to coordinates number 42.8735, −77.6651; then west along a farm road to coordinates number 42.8735, −77.6684; then south along Little Conesus Creek to coordinates 42.8712, −77.6693; then west to include a portion of an access road and gravel clean off site to coordinates 42.8712, −77.6705; then south to coordinates 42.8711, −77.6704; then east to coordinates 42.8711, −77.6699; then north to coordinates 42.8712, −77.6698; then east to coordinates 42.8711, −77.6693; then south along Little Conesus Creek to coordinates 42.8688, −77.6702; then west along a farm road to coordinates 42.8688, −77.6713; then south along a farm road to coordinates 42.8659, −77.6733; then south along a farm road to coordinates 42.8642, −77.6740; then west along a farm road to coordinates 42.8643, −77.6761; then south along a farm road to coordinates 42.8567, −77.6802; then east to coordinates 42.8564, −77.6741; then south along Little Conesus Creek to coordinates 42.8553, −77.6745; then east to point of beginning at coordinates 42.8553, −77.6738;

(B) That portion of land in the area of South Lima South Muck in the town of Lima bounded as follows: Beginning at a point along the south side of South Lima Rd. marked by latitude/longitude coordinates 42.8552, −77.6774; then south to coordinates 42.8548, −77.6774; then east to coordinates 42.8548, −77.6767; then south to coordinates 42.8509, −77.6770; then south to coordinates 42.8447, −77.6772; then east to coordinates 42.8446, −77.6739; then north along a farm road to coordinates 42.8477, −77.6728; then east along a farm road to coordinates 42.8488, −77.6700; then north along a farm road to coordinates 42.8512, −77.6701; then west along a farm road to coordinates 42.8512, −77.6720; then north along a farm road to coordinates 42.8516, −77.6720; then west along a farm road to coordinates 42.8518, −77.6740; then north to coordinates 42.8541, −77.6740; then west to coordinates 42.8545, −77.6766; then north to coordinates 42.8552, −77.6765; then west to point of beginning at coordinates 42.8552, −77.6774;

(C) That portion of land in the area of Wiggle Muck in the town of Livonia bounded as follows: Beginning at a point along the west side of Plank Rd. (State highway 15A) marked by latitude/longitude coordinates 42.8489, −77.6136; then west to coordinates 42.8491, −77.6203; then south along a farm road to coordinates 42.8468, −77.6192; then south along a farm road to coordinates 42.8419, −77.6188; then east to coordinates 42.8422, −77.6161; then north along a farm road to coordinates 42.8487, −77.6168; then east to the west side of Plank Rd. marked by coordinates 42.8487, −77.6135; then north to point of beginning at coordinates 42.8489, −77.6136; and

(D) That portion of land in the town of Avon bounded as follows: Beginning at a point marked by latitude/longitude coordinates 42.9056, −77.6872; then east along a farm road to coordinates 42.9054, −77.6850; then east along a farm road to coordinates 42.9060, −77.6825; then north along a drainage ditch to coordinates 42.9069, −77.6823; then north along a drainage ditch to coordinates 42.9079, −77.6847; then north to coordinates 42.9103, −77.6844; then west along the south side of a farm road to coordinates 42.9103, −77.6857; then south along a farm road to point of beginning at coordinates 42.9056, −77.6872.

Nassau County. (A) That portion of land in the town of Oyster Bay and the village of Old Brookville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8312 −73.5917; then proceeding north-northwest 152′ along Hegemans Lane to coordinates 40.8317, −73.5917; continuing north-northwest 581′ along Hegemans Lane to coordinates 40.8332, −73.5920; then heading north 473′ along Hegemans Lane to coordinates 40.8345, −73.5921; continuing north 461′ along Hegemans Lane to coordinates 40.8358, −73.5921; continuing north 182′ along Hegemans Lane to coordinates 40.8363, −73.5921; continuing north 1227′ along Hegemans Lane to coordinates 40.8397, −73.5920; continuing north 718′ along Hegemans Lane to coordinates 40.8416, −73.5919; then heading west 188′ to Chicken Valley Road at coordinates 40.8416, −73.5926: then heading southwest 70′ along Chicken Valley Road to coordinates 40.8415, −73.5928; continuing southwest 297′ along Chicken Valley Road to coordinates 40.8409, −73.5936; continuing southwest 106′ along Chicken Valley Road to coordinates 40.8407, −73.5938; continuing southwest 155′ along Chicken Valley Road to coordinates 40.8404, −73.5914; continuing southwest 142′ along Chicken Valley Road to coordinates 40.8400, −73.5944; continuing southwest 125′ along Chicken Valley Road to coordinates 40.8397, −73.5946; continuing southwest 36′ along Chicken Valley Road to coordinates 40.8397, −73.5947: continuing southwest 38′ along Chicken Valley Road to coordinates 40.8396, −73.5948; continuing southwest 201′ along Chicken Valley Road to coordinates 40.8392, −73.5953; continuing southwest 98′ along Chicken Valley Road to coordinates 40.8390, −73.5955; continuing southwest 61′ along Chicken Valley Road to coordinates 40.8389, −73.5957; continuing southwest 187′ along Chicken Valley Road to coordinates 40.8384, −73.5960; continuing southwest 62′ along Chicken Valley Road to coordinates 40.8383, −73.5962; continuing southwest 142′ along Chicken Valley Road to coordinates 40.8380, −73.5965; continuing southwest 252′ along Chicken Valley Road to coordinates 40.8375, −73.5971; then heading southeast 254′ along a wood line to coordinates 40.8370, −73.5965; then heading south-southeast 269′ along a wood line to coordinates 40.8363, −73.5963; continuing south-southeast 182′ along a wood line to coordinates 40.8358, −73.5962; then heading south 303′ along a wood line to coordinates 40.8350, −73.5961; then heading south-southeast 175′ along a wood line to coordinates 40.8346, −73.5958; then heading south 329′ along a farm road to coordinates 40.8337, −73.5957; then heading southwest 76′ along a farm road to coordinates 40.8335, −73.5958; then heading west-southwest 104′ along a farm road to coordinates 40.8334, −73.5962; then heading south-southwest 278′ along a farm road to coordinates 40.8327, −73.5965; then heading southeast 1441′ along the south boundary of the Young's Farm to the starting point at coordinates 40.8312, −73.5917;

(B) That portion of land in the town of Oyster Bay and in the village of Old Brookville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8343, −73.5921; then heading south 399′ along Hegemans Lane to coordinates 40.8332, −73.5920; then heading 403′ northeast along a tree line to coordinates 40.8335, −73.5906; then heading 263′ north to coordinates 40.8342, −73.5906; then heading northwest 6′ along Linden Lane to coordinates 40.8342, −73.5906; continuing northwest 98′ along Linden Lane to coordinates 40.8343, −73.5909; continuing northwest 52′ along Linden Lane to coordinates 40.8344, −73.5911; then continuing 54′ northwest along Linden Lane to coordinates 40.8344, −73.5913; then heading southwest 43′ along Linden Lane to coordinates 40.8344, −73.5915; then continuing southwest 170′ to the starting point at coordinates 40.8343, −73.5921;

(C) That portion of land in the town of Oyster Bay and the village of Old Brookville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8365, −73.5874; then heading south 452′ to coordinates 40.8352, −73.5873; then proceeding northeast 583′ to coordinates 40.8356, −73.5853; then heading north-northwest 400′ to coordinates 40.8367, −73.5855; then heading 529′ southwest to the starting point at coordinates 40.8365, −73.5874;

(D) That portion of land in the town of Oyster Bay in the villages of Upper Brookville and Matinecock bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8631, −73.5671; proceeding south 240′ along Chicken Valley Road to coordinates 40.8625, −73.5670; continuing south 293′ along Chicken Valley Road to coordinates 40.8617, −73.5670; continuing south 131′ along Chicken Valley Road to coordinates 40.8613, −73.5670; proceeding south-southwest 116′ along Chicken Valley Road to coordinates 40.8610, −73.5671; continuing south-southwest 113′ along Chicken Valley Road to coordinates 40.8670, −73.5672; proceeding southwest 116′ along Chicken Valley Road to coordinates 40.8604, −3.5674; continuing southwest 337′ along Chicken Valley Road to coordinates 40.8596, −73.5679; continuing southwest 82′ along Chicken Valley Road to coordinates 40.8594, −73.5680; then heading east-northeast 819′ through a wooded area to coordinates 40.8596, −73.5651; then heading southeast 1462′ through a wooded area to coordinates 40.8558, −73.5634; continuing southeast 1065′ through a wooded area to coordinates 40.8531, −73.5618; then heading northeast 1167′ along the border with a golf course to coordinates 40.8547, −73.5581; continuing northeast 317′ along the border with the golf course to coordinates 40.8552, −73.5573; then heading east-northeast 1278′ along the border with a golf course to coordinates 40.8557, −73.5527; then heading south 275′ along the border with a golf course to coordinates 40.8549, −73.5526; then heading northeast 873′ along the golf course boundary to coordinates 40.8564, −73.5501; then heading northwest 1463′ through a wooded area to coordinates 40.8602, −73.5519; then heading 615′ southwest along the border of a residential area to coordinates 40.8599, −73.5541; then heading 280′ northwest through a wooded area to coordinates 40.8604, −73.5548; then heading north-northwest 188′ along a residential driveway to coordinates 40.8609, −73.5549; then heading west 337′ along a residential driveway to coordinates 40.8609, −73.5561; then heading northwest 309′ along a residential driveway to coordinates 40.8617, −73.5565; then heading north-northwest 103′ along a residential driveway to coordinates 40.8620, −73.5566; continuing north-northwest 38′ along a residential driveway to coordinates 40.8621, −73.5566; then heading north 108′ along a residential driveway to coordinates 40.8624, −73.5566; then heading northwest 135′ along a residential driveway to coordinates 40.8627, −73.5567; continuing northwest 95′ along a residential driveway to coordinates 40.8630, −73.5568; then heading east 106′ to a residential driveway at coordinates 40.8630, −73.5565; then heading northeast 172′ along a residential driveway to coordinates 40.8631, −73.5558; continuing northeast 160′ along a residential driveway to coordinates 40.8633, −73.5553; continuing northeast 20′ along a residential driveway to coordinates 40.8633, −73.5552; continuing northeast 141′ along a residential driveway to coordinates 40.8636, −73.5549; continuing northeast 106′ along a residential driveway to coordinates 40.8639, −73.5547; then heading north-northeast 20′ along a residential driveway to coordinates 40.8639, −73.5547; continuing north-northeast 107′ along a residential driveway to coordinates 40.8642, −73.5546; continuing north-northeast 111′ along a residential driveway to coordinates 40.8645, −73.5545; continuing north-northeast 207′ along a residential driveway to coordinates 40.8650, −73.5545; then heading north 53′ along a residential driveway to coordinates 40.8652, −73.5545; then heading northeast 153′ along a paved driveway to coordinates 40.8655, −73.5540; continuing northeast 173′ along a paved driveway to coordinates 40.8657, −73.5535; continuing northeast 71′ along a paved driveway to coordinates 40.8658, −73.5533; then heading north-northeast 47′ along a paved driveway to coordinates 40.8659, −73.5532; continuing north-northeast 70′ along a paved driveway to coordinates 40.8661, −73.5531; continuing north-northeast 79′ along a paved driveway to coordinates 40.8663, −73.5530; then heading north-northeast 109′ along a paved driveway to coordinates 40.8666, −73.5530; then heading north 129′ along a paved driveway to coordinates 40.8669, −73.5529; continuing north 122′ along a paved driveway to coordinates 40.8673, −73.5529; then heading north-northeast 182′ along a paved driveway to coordinates 40.8678, −73.5527; then heading north 23′ along a paved driveway to coordinates 40.8678, −73.5527; then heading north-northwest 36′ along a paved driveway to Planting Fields Road at coordinates 40.8679, −73.5528; then heading southwest 6′ along Planting Fields Road to coordinates 40.8679, −73.5528; continuing southwest 48′ along Planting Fields Road to coordinates 40.8679, −73.5530; then heading west 339′ along Planting Fields Road to coordinates 40.8679, −73.5542; then heading west-southwest 93′ along Planting Fields Road to coordinates 40.8679, −73.5545; then heading southwest 69′ along Planting Fields Road to coordinates 40.8678, −73.5548; continuing southwest 79′ along Planting Fields Road to coordinates 40.8677, −73.5550; continuing southwest 133′ along Planting Fields Road to coordinates 40.8675, −73.5554; continuing southwest 60′ along Planting Fields Road to coordinates 40.8674, −73.5556; continuing southwest 71′ along Planting Fields Road to coordinates 40.8674, −73.5558; heading west-southwest 225′ along Planting Fields Road to coordinates 40.8672, −73.5566; continuing west-southwest 89′ along Planting Fields Road to coordinates 40.8672, −73.5570; continuing west-southwest 132′ along Planting Fields Road to coordinates 40.8671, −73.5574, then heading southwest 91′ along Planting Fields Road to coordinates 40.8670, −73.5577; continuing southwest 59′ along Planting Fields Road to coordinates 40.8669, −73.5579; continuing southwest 240′ along Planting Fields Road to coordinates 40.8665, −73.5586; continuing southwest 219′ along Planting Fields Road to coordinates 40.8661, −73.5592; continuing southwest 89′ along Planting Fields Road to coordinates 40.8660, −73.5594; continuing southwest 132′ along Planting Fields Road to coordinates 40.8658, −73.5598; continuing southwest 93′ along Planting Fields Road to coordinates 40.8657, −73.5602; continuing southwest 97′ along Planting Fields Road to coordinates 40.8655, −73.5605; continuing southwest 90′ along Planting Fields Road to coordinates 40.8654, −73.5608; continuing southwest 131′ along Planting Fields Road to coordinates 40.8653, −73.5612; continuing southwest 80′ along Planting Fields Road to coordinates 40.8652, −73.5614; continuing southwest 257′ along Planting Fields Road to coordinates 40.8649, −73.5623; continuing southwest 133′ along Planting Fields Road to coordinates 40.8647, −73.5627; continuing southwest 59′ along Planting Fields Road to coordinates 40.8646, −73.5629; continuing southwest 85′ along Planting Fields Road to coordinates 40.8645, −73.5632; then heading west-southwest 177′ along Planting Fields Road to coordinates 40.8644, −73.5638; continuing west-southwest 213′ along Planting Fields Road to coordinates 40.8643, −73.5646; then heading southwest 89′ along Planting Fields Road to coordinates 40.8642, −73.5649; continuing southwest 58′ along Planting Fields Road to coordinates 40.8642, −73.5651; continuing southwest 133′ along Planting Fields Road to coordinates 40.8639, −73.5654; continuing southwest 325′ along Planting Fields Road to coordinates 40.8635, −73.5664; continuing southwest 116′ along Planting Fields Road to coordinates 40.8633, −73.5668; continuing southwest 100′ along Planting Fields Road to the intersection with Chicken Valley Road at starting point coordinates 40.8631, −73.5671; and

(E) That portion of land in the town of Oyster Bay and in the hamlet of Old Bethpage bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7703, −73.4460; then proceeding southwest 1997′ through a wood line to Winding Road at coordinates 40.7655, −73.4493; then heading southeast 102′ along Winding Road to coordinates 40.7653, −73.4490; continuing southeast 57′ along Winding Road to coordinates 40.7652, −73.4488; then heading south-southeast 52′ along Winding Road to coordinates 40.7650, −73.4488; continuing south-southeast 99′ along Winding Road to coordinates 40.7648, −73.4487; then heading south 654′ along Winding Road to coordinates 40.7630, −73.4485; then heading southeast 24′ along a ramp to coordinates 40.7629, −73.4485; then heading northeast 2134′ through a wood line to coordinates 40.7644, −73.4411; then heading north-northwest 1197′ along the Nassau County-Suffolk County Border to coordinates 40.7677, −73.4417; then heading southwest 250′ through a wood line to coordinates 40.7676, −73.4426; then heading 132′ north-northwest along Restoration Road to coordinates 40.7679, −73.4426; then heading northeast 311′ along Restoration Road to coordinates 40.7687, −73.4422; then heading northwest 96′ along Restoration Road to coordinates 40.7689, −73.44245; continuing northwest 262′ along Restoration Road to coordinates 40.7695, −73.4430; continuing northwest 173′ along Restoration Road to coordinates 40.7699,−73.4433; continuing northwest 33′ along Restoration Road to coordinates 40.7699, −73.4434; then heading southwest 275′ along Restoration Road to coordinates 40.76942, −73.4440; continuing southwest 194′ along Restoration Road to coordinates 40.76900, −73.4445; then heading north-northwest 334′ along a gravel path to coordinates 40.7698, −73.4448; then heading northwest 364′ along a gravel path to the starting point at coordinates 40.7703, −73.4460.

Orleans County. (A) That portion of land in the town of Barre bounded as follows: Beginning at a point on the north side of Spoil Bank Road marked by latitude-longitude coordinates 43.1327, −78.1234; then east along a farm road running parallel to Spoil Bank Road to coordinates 43.1327, −78.1191; then north along a willow hedge row to coordinates 43.1354, −78.1191; then west along a drainage ditch to coordinates 43.1353, −78.1227; then northwest along a drainage ditch to coordinates 43.1354, −78.1230; then northwest to coordinates 43.1355, −78.1232; then west to coordinates 43.1355, −78.1233; then southwest to coordinates 43.1354, −78.1234; then south along a drainage ditch to the point of beginning at coordinates 43.1327, −78.1234;

(B) That portion of land in the town of Barre bounded as follows: Beginning at a point marked by latitude-longitude coordinates 43.1548, −078.1199; then east along a farm road to coordinates 43.1548, −078.1166; then south to coordinates 43.1524, −078.1167; then west to coordinates 43.1524, −078.1199; then north along a willow hedgerow to the point beginning at coordinates 43.1548, −078.1199; and

(C) That portion of land in the town of Barre bounded as follows: Beginning at a point marked by latitude-longitude coordinates 43.1551, −78.1240; then west to coordinates 43.1551, −78.1244; then southwest to coordinates 43.1550, −78.1245; then southwest to coordinates 43.1550, −78.1245; then south to coordinates 43.1549, −78.1245; then west along a drainage ditch to coordinates 43.1548, −78.1264, then north to coordinates 43.1596, −78.1266; then east along a farm road to coordinates 43.1597, −78.1243; then south along a willow hedge to the point of beginning at coordinates 43.1551, −78.1240.

Steuben County. (A) The towns of Prattsburgh and Wheeler.

(B) The area known as “Arkport Muck North” located in the town of Dansville bounded as follows: Beginning at a point along the west bank of the Marsh Ditch that intersects a farm road marked by latitude/longitude coordinates 42.4230, −77.7121; then north along the Marsh Ditch to coordinates 42.4314, −77.7158; then west along a farm road to coordinates 42.4307, −77.7204; then south along the edge of a forest to coordinates 42.4284, −77.7194; then west along a farm road to coordinates 42.4282, −77.7201; then south along a farm road to coordinates 42.4255, −77.7189; then east along a tree line to coordinates 42.4254, −77.7180; then south along a tree line to coordinates 42.4230, −77.7157; then east to point of beginning at coordinates 42.4230, −77.7121;

(C) The area known as “Arkport Muck South” located in the town of Dansville bounded as follows: Beginning at a point along the west side of New York Route 36 marked by latitude/longitude coordinates 42.4034, −77.6986; then north along the west side of New York Route 36 to coordinates 42.4145, −77.6999; then west along a farm road to coordinates 42.4145, −77.7029; then north along a farm road to coordinates 42.4160, −77.7036; then west along a farm road to coordinates 42.4162, −77.7083; then north along the west bank of the Marsh Ditch to coordinates 42.4186, −77.7097; then west along a farm road to coordinates 42.4181, −77.7121; then north along a farm road to coordinates 42.4214, −77.7140; then west along a farm road to coordinates 42.4211, −77.7198; then south along the east side of the Conrail right-of-way (Erie Lackawanna Railroad) to coordinates 42.4050, −77.7107; then east along a farm road to coordinates 42.4049, −77.7038; then south along a farm road to coordinates 42.4034, −77.7030; then east to point of beginning at coordinates 42.4034, −77.6986;

(D) That portion of land in the town of Cohocton (formerly known as the “Werthwhile Farm”) on the north side of County Road 5 (known as Brown Hill Road), and 0.2 mile west of the junction of County Road 5 with County Road 58 (known as Wager Road); and

(E) That portion of land in the town of Fremont that is bounded as follows: Beginning at a point on Babcock Road that intersects a farm road marked by latitude/longitude coordinates 42.4368, −77.5751; then west along the farm road to coordinates 42.4367, −77.5780; then south to coordinates 42.4360, −77.5780; then west to coordinates 42.4359, −77.5807; then south to coordinates 42.4335, −77.5806; then east to coordinates 42.4333, −77.5778; then south to coordinates 42.4318, −77.5777; then east to coordinates 42.4323, −77.5771; then north to coordinates 42.4330, −77.5763; then east to coordinates 42.4330, −77.5761; then north to coordinates 42.4349, −77.5756; then east to coordinates 42.4349, −77.5749; then north to the point of beginning at coordinates 42.4368, −77.5751.

Suffolk County. (A) Towns of Riverhead, East Hampton, Southampton, Southold, and Shelter Island in their entirety in Suffolk County;

(B) That portion of land in the town of Huntington and the hamlet of Melville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7767, −72.4202; then proceeding southwest 788′ along Broad Hollow Rd. to coordinates 40.7746, −72.4210; then heading east 2354′ along Huntington Quadrangle Rd. to coordinates 40.7748, −72.4125; then heading south 2095′ parallel to Maxess Rd. to coordinates 40.7691, −72.4121; then heading southeast 250′ along Bayliss Rd. to coordinates 40.7689, −72.4113; then heading 2734′ north to coordinates 40.7764, −72.4114; then heading east 1820′ to coordinates 40.7767, −72.4049; then heading north 233′ along Pinelawn Rd. to coordinates 40.7773, −72.4048; then heading west 4267′ to the starting point at coordinates 40.7767, −72.4202;

(C) That portion of land in the town of Huntington and the hamlet of Melville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7954, −72.4080; then proceeding south 1645′ along the west boundary of White Post Farms to coordinates 40.7909, −72.4073; then proceeding east 1110′ along the south boundary of White Post Farms and a housing development to coordinates 40.7910, −72.4033; then heading north 2033′ parallel to Bedell Place to coordinates 40.7965, −72.4041; then heading southwest 1170′ along Old Country Road to the starting point at coordinates 40.7954, −72.4080;

(D) That portion of land in the town of Huntington and the hamlet of Dix Hills bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7904, −72.3410; then proceeding southeast 306′ along Deer Park Road to coordinates 40.7896, −72.3407; continuing southeast 272′ along Deer Park Road to coordinates 40.7888, −72.3404; continuing southeast 530′ along Deer Park Road to coordinates 40.7874, −72.3399; then proceeding northeast 1002′ along the south boundary of the DeLalio Sod Company to coordinates 40.7883, −72.3364; then proceeding northwest 541′ along the east boundary of the DeLalio Sod Company and the Garden Depot to coordinates 40.7897, −72.3371; continuing northwest 554′ along the east boundary of field 15-C-21 to coordinates 40.7911, −72.3377; then proceeding southwest 952′ along the north boundary of field 15-C-21 to the starting point at coordinates 40.7904, −72.3410; and

(E) That portion of land in the town of Brookhaven and the hamlet of Manorville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8542, −72.8240; then proceeding northeast 442′ along South Street to coordinates 40.8545, −72.8225; continuing northeast 1086′ along South Street to coordinates 40.8550, −72.8186; then proceeding east 413′ to coordinates 40.8551, −72.8171 at the intersection of South Street and Wading River Rd.; then proceeding northwest 714′ along Wading River Road to coordinates 40.8568, −72.8183; then continuing northwest 695′ along Wading River Road to coordinates 40.8586, −72.8194; continuing northwest 497′ along Wading River Road to coordinates 40.8598, −72.8202; continuing northwest 221′ along Wading River Road to coordinates 40.8603, −72.8205; continuing northwest 203′ along Wading River Road to coordinates 40.8608, −72.8209; continuing 194′ along Wading River Road to coordinates 40.8613, −72.8212; continuing 212′ along Wading River Road to coordinates 40.8618, −72.8215; proceeding northwest 30′ to coordinates 40.8618, −72.8216; then heading 45′ west to coordinates 40.8618, −72.8218; then heading 183′ southwest along the south ramp of the Long Island Expressway to coordinates 40.8617, −72.8224; then heading west 179′ parallel with the south ramp of the Long Island Expressway to coordinates 40.8617, −72.8231; then continuing west 182′ to coordinates 40.8617, −72.8237; continuing west 299′ parallel with the south ramp of the Long Island Expressway to coordinates 40.8618, −72.8248; then proceeding 201′ southeast to coordinates 40.8617, −72.8255; continuing southwest 88′ to coordinates 40.8615, −72.8257; then south 83′ along a wood line to coordinates 40.8613, −72.8257; continuing south 116′ along a wood line to coordinates 40.8610, −72.8257; continuing southeast 96′ along a wood line to coordinates 40.8607, −72.8256; then heading 92′ southwest along the wood line to coordinates 40.8605, −72.8257; then heading 47′ south along the wood line to coordinates 40.8603, −72.8257; then heading southeast 194′ along the wood line to coordinates 40.8599, −72.8261; continuing 87′ southwest along the wood line to coordinates 40.8597, −72.8262; continuing 200′ southwest along the wood line to coordinates 40.8592, −72.8265; then heading southeast 112′ along the wood line to coordinates 40.8589, −72.8264; then heading east 232′ along the wood line to coordinates 40.8589, −72.8256; then heading south 828′ along the wood line to coordinates 40.8566, −72.8253; then heading east 246′ along the northern boundary of a horse farm to coordinates 40.8567, −72.8244; then heading south 940′ along the boundary of a horse farm to the starting point at coordinates 40.8542, −72.8240.

Done in Washington, DC, this 28th day of September 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2015-25099 Filed 10-1-15; 8:45 am] BILLING CODE 3410-34-P
DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2014-0099] RIN 0579-AE06 Importation of Tomato Plantlets in Approved Growing Media From Mexico AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the regulations governing the importation of plants for planting to authorize the importation of tomato plantlets from Mexico in approved growing media, subject to a systems approach. The systems approach consists of measures currently specified for tomato plants for planting not imported in growing media, as well as measures specific to all plants for planting imported into the United States in approved growing media. Additionally, the plantlets must be imported into greenhouses in the continental United States and the importers of the plantlets from Mexico or the owners of the greenhouses in the continental United States must enter into compliance agreements regarding the conditions under which the plants from Mexico must enter and be maintained within the greenhouses. This rule allows for the importation into the continental United States of tomato plantlets from Mexico in approved growing media, while providing protection against the introduction of plant pests. The rule also allows the imported greenhouse plantlets to produce tomato fruit for commercial sale within the United States.

DATES:

Effective November 2, 2015.

FOR FURTHER INFORMATION CONTACT:

Ms. Lydia E. Colon, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 851-2302.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of quarantine plant pests. The regulations contained in “Subpart—Plants for Planting,” §§ 319.37 through 319.37-14 (referred to below as the regulations), prohibit or restrict, among other things, the importation of living plants, plant parts, and seeds for propagation or planting.

The regulations differentiate between prohibited articles and restricted articles. Prohibited articles are plants for planting whose importation into the United States is not authorized due to the risk the articles present for introducing or disseminating plant pests. Restricted articles are articles authorized for importation into the United States, provided that the articles are subject to measures to address such risk.

Section 319.37-5 of the regulations lists restricted articles that may be imported into the United States only if they are accompanied by a phytosanitary certificate that contains an additional declaration either that the restricted articles are free of specified quarantine pests or that the restricted articles have been produced in accordance with certain mitigation requirements. Within the section, paragraph (r) contains requirements for the importation of restricted articles (except seeds) of Pelargonium or Solanum spp. into the United States. Solanum spp. restricted articles include tomato (Solanum lycopersicum) plantlets, in addition to other species and cultivars within the genus.

Paragraph (r)(1) of § 319.37-5 authorizes the importation into the United States of Pelargonium or Solanum spp. restricted articles from Canada under the provisions of a greenhouse-grown restricted plant program. Paragraph (r)(3) contains conditions for the importation into the United States of Pelargonium or Solanum spp. restricted articles that do not meet the conditions in paragraph (r)(1), and are from a country in which Ralstonia solanacearum race 3 biovar 2 is known to occur.

Conditions for the importation into the United States of restricted articles in growing media are specifically found in § 319.37-8. Within that section, the introductory text of paragraph (e) lists taxa of restricted articles that may be imported into the United States in approved growing media, subject to the mandatory provisions of a systems approach. In § 319.37-8, paragraph (e)(1) lists the approved growing media, and paragraph (e)(2) contains the provisions of the systems approach. Within paragraph (e)(2), paragraphs (i) through (viii) contain provisions that are generally applicable to all the taxa listed in the introductory text of paragraph (e), and paragraphs (ix) through (xi) contain additional taxon-specific conditions.

In response to a request from the national plant protection organization (NPPO) of Mexico, in a proposed rule 1 published in the Federal Register (80 FR 11946-11950, Docket No. APHIS-2014-0099) on March 5, 2015, we proposed to amend the regulations to authorize the importation into the continental United States of tomato (Solanum lycopersicum) plantlets from Mexico in growing media, subject to a systems approach. Because we considered R. solanacearum race 3 biovar 2 to exist in Mexico, the proposed systems approach included the measures specified in paragraph (r)(3) of § 319.37-5. Because the plantlets would be imported in growing media, the systems approach also included the general conditions in § 318.37-8 for all taxa of plants for planting imported into the United States in growing media. Finally, we also proposed that the plantlets would have to be imported into greenhouses in the continental United States and the importers of the plantlets from Mexico or the owners of the greenhouses in the continental United States would have to enter into compliance agreements regarding the conditions under which the plants from Mexico must enter and be maintained within the greenhouses.

1 To view the proposed rule, its supporting documents, or the comments that we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0099.

We solicited comments concerning our proposal for 60 days ending May 4, 2015. We received 19 comments by that date. They were from an NPPO, two State departments of agriculture, an organization representing State departments of agriculture, U.S. tomato producers, importers of tomato plantlets, professors who specialize in U.S. tomato production, a U.S. Senator, local and municipal governments, and a private citizen.

Most of the commenters urged us to finalize the proposed rule, as written. Several commenters were generally supportive of the rule, but requested clarifications regarding the provisions of the rule, or modification to those provisions. Finally, several commenters did not support the rule. We discuss the comments that we received below, by topic.

Comments Regarding the Presence of Ralstonia Solanacearum Race 3 Biovar 2 in Mexico

In the request that we received from the NPPO of Mexico to authorize the importation of tomato plantlets into the continental United States in approved growing media, the NPPO specified that the plantlets would be produced from certified seed, would be produced in greenhouses constructed and maintained to be pest-exclusionary, would be shipped in growing media maintained under similar conditions, and would be safeguarded during movement to the continental United States to prevent plant pests from being introduced to the plantlets.

To evaluate this request, we prepared a pest risk assessment (PRA) that analyzed the potential pest risks associated with the importation of tomato plantlets from Mexico produced under such conditions. The PRA concluded that a number of quarantine pests of tomato plantlets exist in Mexico, including R. solanacearum race 3 biovar 2, but that, if the plantlets are produced in accordance with the conditions specified by the NPPO, they would present a negligible risk of quarantine pests being introduced into the continental United States through their importation in approved media.

Based on the findings of the PRA, a risk management document (RMD) that also accompanied the proposed rule recommended that, among other requirements, the plantlets should be authorized importation subject to paragraph (r)(3) of § 319.37-5 because of the presence of R. solanacearum race 3 biovar 2 in Mexico.

A commenter disputed the presence of R. solanacearum race 3 biovar 2 in Mexico. The commenter stated that, of the ten references 2 that APHIS cited in the PRA regarding the presence of R. solanacearum race 3 biovar 2 in Mexico, five only stated that R. solanacearum race 3 is present in Mexico, and did not identify the biovar; three isolated R. solanacearum from samples obtained from Mexico, but did not state that the samples became infected in Mexico or delineate where in Mexico the samples originated; and the remaining two suggested that plantlets affected with R. solanacearum race 3 biovar 2 have been detected in Mexico, but did not rule out that the plantlets were germinated from infected, imported seed. The commenter also stated that most of the references cited could be classified as “unreliable” pursuant to the International Plant Protection Convention's International Standards for Phytosanitary Measures (ISPM) No. 8, and that ISPM No. 8 prohibits importing countries from assessing the pest status of a foreign region based on unreliable records.

2 These were:

CABI, 1999. Ralstonia solanacearum race 3 [Distribution Map] (Map 785). April, 1999. Referred to in this document as “CABI 1999.”

CABI, 2012. Crop Protection Compendium. Commonwealth Agricultural Bureau International. http://www.cabi.org/cpc/. Archived at PERAL. Referred to in this document as “CABI 2012.”

EPPO, 1997. Data Sheets on Quarantine Pests: Ralstonia solanacerum. European and Mediterranean Plant Pest Organization (EPPO) A2 List No. 58. Last accessed March 10, 2010. Referred to in this document as “EPPO 1997.”

EPPO, 2006. Distribution Maps of Quarantine Pests for Europe: Ralstonia solanacearum race 3.

EPPO. Found at http://pqr.eppo.org/datas/PSDMS3/PSDMS3.pdf. Referred to in this document as “EPPO 2006.”

Hernández-Romano, J., et al., 2012. First report of Ralstonia solanacearum causing tomato bacterial wilt in Mexico. New Disease Reports (November 2012). Referred to in this document as “Hernández-Romano et al.

Meng, F., et al., 2008. Interactions with hosts at cool temperature, not cold tolerance, explain the unique epidemiology of Ralstonia solanacearum Race 3 biovar 2. Poster presented at the 2008 American Phytopathological Society Meeting, Minneapolis, MN. July 26 and 28, 2008. Referred to in this document as “Meng et al.

Milling, A., et al., 2009. Interactions with Hosts at Cool Temperatures, Not Cold Tolerance, Explain the Unique Epidemiology of Ralstonia solanacearum Race 3 Biovar 2. Phytopathology 99 (10):1127-1134. Referred to in this document as “Milling et al.

Perea, S.J.M., et al., 2011. Identificación de razas y biovares de Ralstonia solanacearum aisladas de plantas de tomate. Revista Mexicana de Fitopatología (29):98-108. Referred to this in this document as “Perea et al.

Sanchez-Perez, A., et al., 2008. Diversity and distribution of Ralstonia solanacearum strains in Guatemala and rare occurrence of tomato fruit infection. Plant Pathology 57:320-331. Referred to in this document as “Sanchez-Perez et al.

Xu, J., et al., 2009. Genetic diversity of Ralstonia solanacearum strains from China. European Journal of Plant Pathology 125:641-653. Referred to in this document as “Xu et al.

For these reasons, the commenter concluded that APHIS should state that the presence of R. solanacearum race 3 biovar 2 in Mexico is unknown because of unreliable pest detection records, and remove the R. solanacearum race 3 biovar 2-specific provisions from the systems approach.

Similarly, another commenter pointed out that R. solanacearum race 3 biovar 2 has been detected in the United States on two occasions, yet there are no R. solanacearum race 3 biovar 2-specific restrictions on the interstate movement of tomato plantlets within the United States. The commenter asked us to explain or address this discrepancy.

Unlike other phytopathogenic bacteria, race classifications for R. solanacearum are not based on gene-for-gene interactions across host species, but rather on pathogenicity in different types of host plants. Biovars of R. solanacearum, in contrast, do cross species. There is, accordingly, generally no correlation between races and biovars of R. solanacearum, and, in general, one cannot presume a specific biovar of R. solanacearum has been detected in a host plant based on knowledge of the race isolated.

However, this is not true of race 3 and biovar 2 of R. solanacearum. There exists a distinct and close correlation between this race and biovar of the disease, such that, in the international taxonomic community, references to race 3 of R. solanacearum are presumed to refer to biovar 2, and references to biovar 2 of R. solanacearum are presumed to refer to race 3. The five references in the PRA that referred to the presence of R. solanacearum race 3 in Mexico (CABI 1999, CABI 2012, EPPO 1997, EPPO 2012, and Hernández-Romano et al.) used this common taxonomic practice, and thus do refer to R. solanacearum race 3 biovar 2.

Of the three articles that the PRA referenced in which R. solanacearum was isolated from samples obtained from Mexico (Meng et al., Milling et al., and Sanchez-Perez et al.), one (Meng et al.) explicitly states that the isolate of R. solanacearum race 3 biovar 2 used in the study is from Mexico. The other two state that the isolates were obtained from a collection that is housed at the University of Wisconsin, and is identified as being of Mexican origin. While none of the references identify the exact location in Mexico where the isolates originated, that location is not germane to determining whether or not R. solanacearum race 3 biovar 2 is present in Mexico.

Of the remaining two articles, we agree that one (Xu et al.) does not conclude that R. solanacearum race 3 biovar 2 is present in Mexico, and will no longer use it as a reference in future discussions of the presence of R. solanacearum race 3 biovar 2 in Mexico.

We disagree, however, that the other article (Perea et al.) could merely provide evidence that infected imported seed was used to germinate tomato plantlets within Mexico. Seed transmission of R. solanacearum race 3 biovar 2 is extremely rare; soil, water, and plant debris are far more common pathways for the disease. Additionally, the infected plantlets identified by Perea et al. exhibited no signs of infection during the early stages of production, when they were potted and housed in greenhouses; the plantlets only appeared symptomatic well after they were planted in an outdoor field. When potted plants are infected with R. solanacearum race 3 biovar 2, however, they tend to appear symptomatic within 30 days. This suggests that the seed from which the plantlets were germinated was not infected with R. solanacearum race 3 biovar 2. Rather the evidence provided in Perea et al. strongly suggests that the plantlets became infected in an outdoor field through contact with infected soil, water, or debris.

We agree with the commenter that the references are of varying reliability, but disagree with the commenter's interpretation of ISPM No. 8. ISPM No. 8 does not distinguish between reliable and unreliable records, but rather provides criteria by which an importing country should assess the relative reliability of a record in comparison to other records. The ISPM acknowledges that determining whether a particular plant pest exists in a foreign region is, however, ultimately a subjective “expert judgment” made by the importing country.

After reviewing the records available to us in light of the commenter's concerns, we have determined that there is significant evidence that R. solanacearum race 3 biovar 2 exists in the natural environment within Mexico. This differs from the United States, where outbreaks of R. solanacearum race 3 biovar 2 have been limited to greenhouses and arisen from the importation of infected plants.

Accordingly, we consider it appropriate to maintain R. solanacearum race 3 biovar 2-specific provisions as part of our systems approach for the importation of tomato plantlets in growing media from Mexico, and have made no changes to the provisions of the proposed rule in response to this comment.

In a similar vein, a commenter asked us why the proposed rule had contained R. solanacearum race 3 biovar 2-specific provisions, given that the PRA found that it “highly unlikely” that tomato plantlets from Mexico would become infected with the disease.

The PRA found such transmission to be highly unlikely, provided that the plantlets are produced under the provisions of the systems approach. The PRA did not evaluate the likelihood that plantlets produced under different conditions would become infected with R. solanacearum race 3 biovar 2. Because we consider that disease to exist in the natural environment within Mexico, the risk would be considerably higher, and thus the need for the required provisions.

Comments Regarding Organic Certification

Several tomato producers within the United States supported the proposed rule, and stated that they would like to import tomato plantlets in growing media from Mexico if the rule is finalized. However, the commenters stated that they are certified organic by the United States Department of Agriculture (USDA), and expressed concern that several of the mitigation measures specified in the risk management document (RMD) that accompanied the proposed rule appeared to require fumigation with methyl bromide and the use of disinfectants that are not approved by USDA for organic production. The commenters noted, however, that the proposed rule itself did not appear to require either fumigation or the use of such disinfectants. The commenters inquired whether there was a discrepancy between the RMD and the proposed rule, and, if so, which provisions they would be expected to adhere to.

Paragraph (r)(3)(viii) of § 319.37-5 requires Solanum spp. plants for planting from countries in which R. solanacearum race 3 biovar 2 is known to occur to be grown in growing media that is free of R. solanacearum race 3 biovar 2. In order for growing media to be considered free of R. solanacearum race 3 biovar 2, guidance that we have developed for producers states that the growing media should either be fumigated with methyl bromide at 3 grams per liter of media for 72 hours at 21° Celsius or above, or steam sterilized so that the media reaches a temperature of 80° Celsius for at least 2 hours. The RMD referred to both of these options, and either option would fulfill the requirements of the regulations.

Paragraph (r)(3)(vi) of § 319.37-5 requires all equipment that comes in contact with articles of Solanum spp. within a production site to be adequately sanitized so that R. solanacearum race 3 biovar 2 cannot be transmitted between plants or enter from outside the production site via equipment, while paragraph (r)(3)(vii) of § 319.37-5 requires production site personnel to adequately sanitize their clothing before entering the production site to prevent the entry of R. solanacearum race 3 biovar 2 into the production site.

APHIS has determined that several disinfectants may be used to meet these sanitation requirements. One of them, hydrogen peroxide, is approved by USDA for organic production.

General Comments on the Proposed Rule

One commenter suggested that we should authorize the importation of tomato seeds from Mexico, rather than tomato plantlets in growing media.

The regulations already authorize the importation of tomato seeds from Mexico. The market access request from the NPPO of Mexico was for tomato plantlets in growing media.

One commenter suggested that we consider authorizing the importation of tomato plantlets from Mexico under “Good Seed and Plant Production Practices” (GSPPPs), an international accreditation standard for pest-free production of plants for planting.

Generally applicable standards such as the GSPPPs may not always address taxon-specific plant pest risks. Additionally, the regulations are currently written in a manner which does not facilitate the use of such generally applicable standards. However, if finalized, a proposed rule 3 published in the Federal Register on April 25, 2013 (78 FR 24634-24663; Docket No. APHIS-2008-0011) would restructure the regulations to facilitate the potential use of GSPPPs.

3 To view the proposed rule, its supporting documents, or the comments that we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2008-0011.

Two commenters stated that certain areas of the continental United States are more hospitable to the establishment of quarantine pests of tomatoes than others, and the rule should be amended to prohibit the importation of tomato plantlets in growing media from Mexico into those areas.

If the provisions of the proposed rule are adhered to, the plantlets will present a negligible risk of introducing quarantine pests into any area of the continental United States. Therefore, the relative likelihood of establishment of these pests in a particular part of the continental United States is not germane, and we are making no changes to the provisions of the systems approach based on these comments.

Comments Regarding Specific Provisions of the Systems Approach

We proposed that the production site where the plantlets were produced would have to test for R. solanacearum race 3 biovar 2 and maintain records regarding such testing for at least two growing seasons.

A commenter stated that indoor production facilities have growing cycles, rather than growing seasons, and inquired whether maintaining the records for two growing cycles would suffice to meet this requirement.

Operationally, we rely on the definition of “growing season” provided in ISPM No. 5, “Glossary of Phytosanitary Terms.” 4 This definition considers a growing season to be the period or periods of the year when plants actively grow in an area, place of production, or production site.

4 To view this ISPM, go to https://www.aphis.usda.gov/import_export/plants/plant_exports/downloads/pimglossary.pdf.

The commenter did not specify what they meant by “growing cycle.” However, if the commenter meant the time period during which a particular set of tomato plantlets are in active growth within the producer's facility, from establishment to harvest, then the term “growing season” is equivalent to the term “growing cycle.”

We proposed that the greenhouses in which the plantlets are produced in Mexico would have to be surrounded by a 1-meter sloped buffer.

One commenter asked whether the buffer had to be around the perimeter of each of the greenhouses, or whether the greenhouses could collectively be surrounded by the buffer.

Either type of buffer suffices to meet this requirement.

We proposed that the plantlets would have to be handled and packed in a manner which precludes the introduction of R. solanacearum race 3 biovar 2 to the articles.

One commenter asked whether these procedures would prevent insect pests from being introduced onto the plantlets during movement to the United States.

Safeguarding procedures which prevent the introduction of R. solanacearum race 3 biovar 2 onto host plants are also sufficient to prevent the introduction of insect pests.

Finally, we proposed that the plantlets would have to be imported directly into a pest-exclusionary greenhouse in the continental United States.

One commenter asked whether the plantlets could be offloaded into a pest-exclusionary docking station at the same production site in the United States that contains the pest-exclusionary greenhouses, then resealed and moved to the greenhouses at a further stage of production.

Provided that the docking station has been evaluated by APHIS and provides an equivalent level of pest exclusion as do the greenhouses themselves, they may.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

The rule will allow the importation of tomato plantlets in approved growing media from Mexico into the continental United States. Currently, tomato plantlets in growing media are not admissible into the United States except from Canada. The imported plantlets will be allowed to be imported only to APHIS-approved facilities under compliance agreements, and will be used only for fruit production.

Data are not available on the production or trade of tomato plantlets. However, U.S. greenhouse (more generally termed protected-culture) tomato production and import levels provide evidence of the expanding derived demand for tomato plantlets. In 2011, protected-culture tomatoes made up 40 percent of the U.S. tomato supply, up from less than 10 percent in 2004; they now dominate retail tomato sales. The value of protected-culture tomato imports by the United States grew by two-thirds between 2009 and 2013, in response to expanding consumer demand, from $795 million to $1.33 billion.

Reportedly, there are few nurseries in the United States that produce tomato plantlets and their volume of production is relatively small. The final rule will enable U.S. producers of protected-culture tomatoes to draw upon Mexican plantlet suppliers in addition to imports from Canada, and is expected to have a positive economic impact on the protected-culture tomato industry.

Protected-culture tomato producers are classified in the North American Industry Classification System within Other Vegetable (except Potato) and Melon Farming (NAICS 111219), for which the Small Business Administration small-entity standard is annual receipts of not more than $750,000. The average market value of agricultural products sold by operations in this industry in 2012 was about $314,000. While we are unable to determine the number of businesses that will be affected by the final rule, we can assume that at least some of them are small entities.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

National Environmental Policy Act

An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the importation into the continental United States of tomato plantlets in growing media from Mexico, subject to a required systems approach, will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site. Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 799-7039 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this final rule, which were filed under 0579-0431, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in the Federal Register providing notice of what action we plan to take.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this final rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

List of Subjects in 7 CFR Part 319

Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, we are amending 7 CFR part 319 as follows:

PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority:

7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. Section 319.37-1 is amended by adding, in alphabetical order, a definition for compliance agreement to read as follows:
§ 319.37-1 Definitions.

Compliance agreement. A written agreement between APHIS and a person (individual or corporate) engaged in the production, processing, handling, or moving of restricted articles imported pursuant to this subpart, in which the person agrees to comply with the subpart and the terms and conditions specified within the agreement itself.

3. Section 319.37-8 is amended as follows: a. In paragraph (e), introductory text, by removing the period after the entry for “Schlumberga spp. from the Netherlands and Denmark” and adding, in alphabetical order, an entry for “Solanum lycopersicum from Mexico.”. b. By adding paragraph (e)(2)(xii). c. By revising the OMB citation at the end of the section.

The addition and revision read as follows:

§ 319.37-8 Growing media.

(e) * * *

(2) * * *

(xii) Plantlets of Solanum lycopersicum from Mexico must also meet the following conditions:

(A) The plantlets must be produced in accordance with § 319.37-5(r)(3);

(B) The plantlets can only be imported into the continental United States, and may not be imported into Hawaii or the territories of the United States; and

(C) The plantlets must be imported from Mexico directly into a greenhouse in the continental United States, the owner or owners of which have entered into a compliance agreement with APHIS. The required compliance agreement will specify the conditions under which the plants must enter and be maintained within the greenhouse, and will prohibit the plantlets from being moved from the greenhouse following importation, other than for the appropriate disposal of dead plantlets.

(D) If all of the above requirements are correctly complied with, then the tomato fruit produced from the imported greenhouse plantlets may be shipped from the greenhouses for commercial sale within the United States.

(Approved by the Office of Management and Budget under control numbers 0579-0266 and 0579-0431)
Done in Washington, DC, this 28th day of September 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2015-25100 Filed 10-1-15; 8:45 am] BILLING CODE 3410-34-P
DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 354 9 CFR Parts 97 and 130 [Docket No. APHIS-2009-0047] Fee Increases for Overtime Services AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are changing the hourly rates charged for Sundays, holidays, or other overtime work performed by employees of the Animal and Plant Health Inspection Service (APHIS) for any person, firm, or corporation having ownership, custody, or control of regulated commodities or articles subject to agricultural inspection, laboratory testing, certification, or quarantine under the regulations. We are increasing these overtime rates for each of the fiscal years 2016 through 2018 to reflect the anticipated costs associated with providing these services during each year. Establishing the overtime rate changes in advance will allow users of APHIS' services to incorporate the rates into their budget planning. We are also clarifying the regulations to indicate that agricultural inspections performed by the Department of Homeland Security (DHS) may be billed in accordance with DHS overtime regulations for services performed outside of regular business hours, as DHS rates may differ from those charged by APHIS.

DATES:

Effective November 2, 2015.

FOR FURTHER INFORMATION CONTACT:

For information concerning Plant Protection and Quarantine program operations, contact Ms. Diane L. Schuble, AQI User Fee Coordinator, Office of the Executive Director-Policy Management, PPQ, APHIS, 4700 River Road Unit 131, Riverdale, MD 20737-1231; (301) 851-2338.

For information concerning Veterinary Services program operations, contact Ms. Carol Tuszynski, Director, Planning, Finance, and Strategy Staff, Program Support Services, VS, APHIS, 4700 River Road Unit 58, Riverdale, MD 20737-1231; (301) 851-3463.

For information concerning APHIS overtime fee development, contact Ms. Adelaide Feukam, Auditor, Review and Analysis, Financial Management Division, MRPBS, APHIS, 4700 River Road Unit 55, Riverdale, MD 20737; (301) 851-2601.

For information concerning DHS overtime fees, contact Mrs. Kara Welty, Chief, Debt Management Branch, Indianapolis, CBP, DHS, 6650 Telecom Drive Suite 100, Indianapolis, IN 46278-2010; (317) 614-4614.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR chapter III and 9 CFR chapter I, subchapters D and G, require inspection, laboratory testing, certification, or quarantine of certain animals, poultry, animal byproducts, germ plasm, organisms, vectors, plants, plant products, or other regulated commodities or articles intended for importation into, or exportation from, the United States. With some exceptions, which are explained below, when these services must be provided by an Animal and Plant Health Inspection Service (APHIS) employee on a Sunday or on a holiday, or at any other time outside the APHIS employee's regular duty hours, the Government charges an hourly overtime fee for the services in accordance with 7 CFR part 354 and 9 CFR part 97.

Based on changes to the costs associated with providing agricultural inspection, laboratory testing, certification, and quarantine services, we determined that adjustments to the overtime rates in 7 CFR part 354 and 9 CFR part 97 were necessary in order for APHIS to recover the full cost of providing these services. Therefore, we proposed to set hourly overtime rates for inspection, laboratory testing, certification, and quarantine services provided outside of an employee's normal tour of duty for fiscal years (FYs) 2014 through 2018. Our proposal was published in the Federal Register on April 25, 2014 (79 FR 22887-22895, Docket No. APHIS-2009-0047).1 The proposed overtime rates were based on our costs of providing the services, including direct labor costs, area delivery costs, billing and collection costs, program direction and support costs, agency/management support costs, central/departmental changes, and a reserve component, plus adjustments for inflation and anticipated annual increases in the salaries of employees who provide the services.

1 To view the proposed rule and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2009-0047.

We also proposed to include language in 7 CFR 354.1, 9 CFR 97.1, and 9 CFR 130.50 to clarify and inform the public that any agricultural inspection performed by an employee of the Department of Homeland Security (DHS) Bureau of Customs and Border Protection (CBP) on a Sunday, holiday, or anytime outside of the employee's normal tour of duty may be billed in accordance with the regulations in 5 CFR part 551, 7 CFR 354.1, 9 CFR 97.1, 9 CFR 130.50, or 19 CFR 24.16. Such billing is necessary because the costs associated with the DHS agricultural inspections and incurred by DHS may differ from those incurred by APHIS. Therefore, varying overtime charges may apply in such circumstances in order for DHS to properly recover their costs and adequately fund their program operations.

We solicited comments concerning our proposal for 60 days ending June 24, 2014. We received 43 comments by that date. They were from producers, importers, industry groups, and private individuals. Two were supportive of the proposed action. The remainder are discussed below by topic.

Comments on Rate Calculation Methodology

As previously stated, we proposed to establish the hourly overtime rates for FY 2014 through FY 2018. We note that, as FYs 2014 and 2015 have ended, the overtime rates covered by this final rule are now only for FYs 2016 through 2018. The FY 2016 rates will become effective 30 days after the date of publication of this final rule; the FY 2017 and FY 2018 rates would become effective on the first day of each of the fiscal years, and the FY 2018 rates would remain in effect until new rates were established.

One commenter stated that our aim of seeking set rates for anticipated costs over a 5 year period is too speculative and far too difficult to predict with accuracy. The commenter suggested that APHIS use a 5 year projection as a planning tool only and constrain specific overtime cost increases to a shorter timeframe.

We disagree with the commenter's assessment. Based on our experience with past overtime fee increases, information regarding such increases that covers a longer timeframe allows users of APHIS' services to incorporate the rates into their budget planning. In addition, we arrive at our projected figures using those gross domestic product (GDP) figures provided by the Office of Management and Budget (OMB) in the Presidential budget, which is the Government standard for such fees and is not subject to rate instability. Moreover, as explained above, the actual timeframe of this rule will be based on a shorter 3 year period since it will only apply to FYs 2016 through 2018.

The commenter went on to assert that our calculations should address not only the cost of providing overtime service, but also specify what steps are being taken to reduce costs to the Agency and thereby also reduce customer costs.

While the main cost driver of reimbursable overtime is the cost of salaries and benefits, APHIS has taken steps in recent years to achieve efficiencies as part of United States Department of Agriculture's (USDA) Blueprint for Stronger Service.2 For example, APHIS centralized certain services such as information technology, customer service support, telecommunications, and vehicle inventory while also enacting additional controls on purchases. APHIS continues to look for opportunities to reduce operating costs where possible while maintaining the level of services needed to carry out our mission of safeguarding U.S. agriculture.

2 Information on this initiative is available on the Internet at http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=blueprint_for_stronger_service.html.

We calculated our overtime rates to cover the full cost of providing inspection, testing, certification, or quarantine services at laboratories, border ports, ocean ports, rail ports, quarantine facilities, and airports outside of the normal tour of duty of the employee providing these services. The cost of providing these services includes direct and indirect costs. The direct costs are an employee's salary and specific benefits, which are APHIS' payment of the hospital insurance tax and its contribution to the Federal Insurance Contribution Act (FICA), and the Agency's costs for work performed at night. The indirect costs are area delivery costs, billing and collection costs, program direction and support costs, central/departmental charges, and unfunded leave costs.

A number of commenters observed that, in the calculation of overtime rates, only the variable cost of providing the additional service outside of regular business hours should be included in the assessment of the overall cost. Specifically, the commenters stated that there is no justification for the inclusion of most of the components identified in area delivery, imputed costs, agency level program delivery, agency level administrative support, and central/departmental charges.

We followed Federal guidance related to fee setting and managerial cost accounting in determining program costs. Specifically, we followed OMB Circular A-25: User Charges, which provides guidance on setting fees in the Federal Government, and SFAS No. 4, which includes, among other things, a definition of full cost. OMB Circular A-25, which may be viewed at http://www.whitehouse.gov/omb/circulars_default, establishes the requirement that fees be set at full cost to the Government, and provides a definition and examples for full cost. OMB Circular A-25 very specifically defines full cost to include the costs referenced by the commenters.

Another commenter asked to review APHIS's full revenue-costs statements as well as the full economic impact assessment. The commenter stated that the information was not included with the proposed rule.

Our full calculation of all aspects of overtime fees, starting with direct labor costs and including all indirect costs and overhead elements, was included in the proposed rule, which is available for public review on the Internet at: http://www.regulations.gov/#!docketDetail;D=APHIS-2009-0047. The regulatory impact analysis and initial regulatory flexibility analysis were also made available on Regulations.gov along with the proposed rule as part of the rule's supporting documents. We maintain that this level of detail provides the highest degree of transparency and supports the required increase needed in our rates.

As detailed above, APHIS calculates its overtime fees based on a variety of sources apart from employee salary considerations. Per OMB Circular A-25, the overtime program is a full cost recovery program, which includes the direct and indirect costs outlined previously.

One commenter stated that APHIS should reconsider its cost estimates since the initial impetus for the proposed rule was work done in 2010 at the height of the financial crisis. The commenter went on to say that, since that time, the rate of importation and export has increased significantly, which would increase Agency funds that might be used to cover these costs instead.

We disagree with the commenter's assessment. While there are other components involved, much of the cost of overtime inspection is made up of inspector salaries. The APHIS budget provides funding for inspectors working within business hours, Monday through Friday, except holidays. Any work performed outside that timeframe is, by definition, additional and irregular. As detailed in OMB Circular A-25, Federal agencies are charged to recoup their costs in such instances via the assessment of overtime fees. Any additional funds that APHIS (or DHS for that matter) may receive via any increases in trade would remain in the accounts used by the specific Agency and programs that provide the services and incur the costs.

Comments on Billing Procedures

Two commenters stated that most, if not all, of the ports require that overtime be requested and paid for in a minimum of 4-hour blocks regardless of whether those 4 hours are needed or used. The commenters suggested that APHIS change its overtime billing policy so that importers would only be charged for the time required to conduct the requested inspection. The commenters also suggested that, if an inspector is called for overtime work in the 4 hour block described above and the whole of that time is not used, that inspector should then remain onsite for the remainder of the 4 hour time period in order to deal with any other vessels or cargoes that may arrive and require immediate inspection.

In § 354.1, paragraph (a)(2) states that a minimum charge of 2 hours will be made for inspection services performed by an APHIS employee outside of his or her normal tour of duty on Saturdays, holidays, weekdays, or Sundays. In addition, overtime fees may include a commuted traveltime period (CTT), which is established by APHIS to cover the time an employee spends reporting to and returning from the place where the requested overtime duties are performed.3 We believe the 4-hour minimum cited by the commenters includes the minimum overtime work time of 2 hours in addition to 2 hours of CTT. Although CTT ranges from 1 to 12 hours, 2 hours is the allotted CTT at many of our busiest ports. Regarding the commenters' second point concerning inspectors remaining onsite to perform other unexpected inspection; an arrangement of this nature is not precluded by the regulations. However, APHIS leaves such administrative details to the knowledge and discretion of the individual ports. The actual management of staffs, inspectors, hours, staffing for arrival, and identification of risk and needs varies from port to port and is best handled by port directors equipped with the detailed information necessary to make daily staffing decisions.

3 A full listing of CTT periods may be found in § 354.2 of the regulations.

Two commenters observed that, in many instances, vessels and cargoes are ready for inspection during normal business hours only to find that DHS inspectors are not available due to the volume of inspections required for other vessels. The commenters stated that users should not be made to pay for services rendered in overtime periods that could have been conducted during normal business hours had sufficient personnel been available.

We have considered the commenters' point and have received detailed information from DHS regarding their staffing policies at the ports. Overall, DHS employs a rigorous, data-driven methodology to identify staffing requirements. It is composed of multiple elements—some fixed, others variable—that may be adjusted according to changing priorities, risks, and threats. In early 2014, a risk-based Agriculture Resource Allocation Model was finalized, which will serve as an important component of DHS's methodology. The Agriculture Resource Allocation Model will more accurately calculate the number of agricultural inspectors required to efficiently handle workflow at the ports. DHS will integrate the results of the Agriculture Resource Allocation Model into its existing methodology in order to provide a more holistic view of DHS's staffing requirements. Generally speaking, APHIS and DHS staffing decisions for agricultural inspections are continuously being reformulated based on changing conditions so that the ports may operate at a constantly improving level of service.

Two commenters stated that the regulations should stipulate that any overtime fees collected should be returned to the port where the services are rendered. The commenters said that this would ensure that sufficient funds are available where needed, and the Agencies would not be required to utilize appropriated funds or cash reserves to cover expenses associated with overtime fees.

We disagree with the commenters. It would be administratively burdensome for APHIS (or DHS for that matter) to maintain and track reimbursable overtime collections for agricultural inspection to a port-by-port level. Because the application of reimbursable overtime rates distinctively mirrors the work the employees perform and are paid for, there is no need to track collections and costs to this level. Program budgeters carefully consider the amount of reimbursable overtime work at their ports in providing budget estimates from year to year. Finally, APHIS and DHS overtime fee collections are already tracked to the agency level; those collections remain in the appropriate accounts to fund each Department's respective overtime operations.

Two commenters observed that both APHIS and DHS must be able to provide invoices for all overtime fees in a timely manner. The commenters suggested that the regulations stipulate that invoices will be provided within 30 days of the inspection date.

Comments referring to specific billing practices are outside the scope of the current rulemaking. Invoices are generally provided simultaneous to inspection; however the commenters should contact the port director with any questions or concerns about the timeliness of billing.

Other commenters stated that it would be possible for APHIS and DHS to assess overtime fees at a lower rate if industry were involved in negotiations between those Agencies and the inspectors' union.

Any discussion of union contract negotiation is outside the scope of the current rulemaking.

A commenter observed that greater responsiveness to current industry practices is needed. The commenter went on to state that, at the port in Atlanta, GA, importers cannot request weekend overtime after 3 p.m. on Friday, however it is impossible to determine with certainty by that time how much overtime will be necessary. The commenter is engaged in the importation of plant cuttings or live plants, which are perishable, and the busiest importing days, based on industry need and long-established industry practice, include Saturdays and Sundays.

Another commenter stated that the port in Miami, FL, had recently extended its weekday operational hours. The commenter urged APHIS to maintain those hours.

As previously stated, APHIS leaves such administrative details as the deadline for requesting weekend overtime and the operational hours of the ports to the knowledge and discretion of those individual ports. If the first commenter wishes to propose an extension of the deadline for requesting weekend overtime and the second commenter would like to maintain extended weekday hours of operation they should contact their local port directors.

Comments on Proposed Costs

A number of commenters expressed concern at the cost numbers supplied by APHIS in the proposed rule.

Several commenters observed that the proposed rule would increase the cost for overtime services by 30 to 49 percent (some commenters cited the increase as 45 to 55 percent); a number that represents 3 to 5 times the rate of inflation since the last increase in 2002. Further, the commenters remarked that the U.S. Department of Labor had reported only a 10 percent increase in the Consumer Price Index since 2002. The commenters were troubled by the difference between the inflation rate, the Consumer Price Index rate, and the proposed percentage increase to overtime fees.

Overtime fees are not solely based on either the rate of inflation or the Consumer Price Index. As stated previously, the cost of providing these services includes direct and indirect costs. The direct costs are an employee's salary and specific benefits, which are APHIS' payment of the hospital insurance tax and its contribution to the FICA, and the Agency's costs for work performed at night. The indirect costs are area delivery costs, billing and collection costs, program direction and support costs, central/departmental charges, and unfunded leave costs.

Another commenter suggested that the cost increases should be made incrementally over the next several years to lessen the burden on producers and exporters and help them maintain their competitive position.

A phase-in of the proposed changes would simply delay achieving the rule's objectives: To properly recover costs and adequately fund program operations. We would add that the decision to request overtime services, and therefore to incur additional costs, is left to the importer and such importers may realize price efficiencies by scheduling inspections during regular business hours.

Several commenters observed that the increase in the overtime fees will come in conjunction with a new fee of $375 per treatment for various types of treatments currently offered at no charge. The commenters asserted that the cumulative effect of these cost increases will have a chilling effect on the perishable goods import/export market in the United States.

The fee to which the commenters refer was included in a proposal to add new fee categories and adjust current fees charged for certain agricultural quarantine and inspection services provided in connection with certain commercial vessels, commercial trucks, commercial railroad cars, commercial aircraft, and international passengers arriving at ports in the customs territory of the United States.4 While the fees discussed in that rule are compulsory, overtime fees represent the cost of providing the additional service outside of regular business hours. As stated previously, the decision to request overtime services, and therefore to incur additional costs, is left to the importer.

4 You may view the proposed rule at http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0021.

Comments on Economic Impact

A number of commenters from Florida stated that the proposed increase in overtime fees would prove detrimental to trade, commerce, and the economy of that State.

We disagree with the commenters' assessment. Based on the economic assessment included with the proposal, we estimate that the impact of this rule will be minor. Further, the commenters did not provide any economic data in support of their claim for APHIS to examine.

Another commenter observed that Florida has successfully worked with APHIS to implement the first ever cold treatment pilot project for perishable commodities. The commenter was concerned that increased overtime fee rates would prove economically detrimental to the future of that project both in Florida and other areas where cold treatment is already permitted.

We disagree with the commenter's statement. APHIS' agreement with the shipping lines in the Florida cold treatment pilot program requires that cold treatment be completed before the ship arrives at the port because there are no approved cold treatment facilities available in Florida. Since the cold treatment must take place prior to shipment arrival, any information regarding application of cold treatment may be transmitted to the ports during regular business hours.

Comments on Comment Period

We received several requests for an extension of the comment period on the proposed rule. After careful consideration, we determined to keep the original deadline. While APHIS has not updated its overtime fees since 2005, these increases remain a routine cost-recovery measure for the Agency.

Comments on Agency Jurisdiction

Two commenters stated that, to the extent APHIS and CBP are performing the same inspection services, the shipping community has a reasonable right to expect that the rates charged will be consistent across the agencies and that any internal conflicts in pay and rate schedules should be transparent to the service recipient. The commenters concluded that, to the extent one agency is acting on behalf of the other, it is imperative that the agency which is incurring the costs retains the appropriate percentage of the revenues collected.

We agree with the commenters' observations. Providing clarity while allowing APHIS and DHS to recoup inspection costs was our intent in publishing this rule.

Finally, one commenter said that there is confusion about which agencies have responsibility for and jurisdiction over various functions. The commenter said that the rule should clearly delineate which functions are performed by APHIS and which are performed on behalf of APHIS by DHS. The commenter concluded that fees should be listed only in the relevant sections of the CFR, and there must be no question that both APHIS and DHS are not billing individually for the same services.

Generally speaking, most of the agricultural inspections discussed in this rule are performed by DHS pursuant to the Homeland Security Act. Examples of agricultural inspections performed by APHIS include those associated with the importation of live plants, which occur at designated plant inspection stations, and APHIS oversight of certain port of entry treatments. As stated in the proposed rule, DHS conducts billings of their overtime charges in accordance with the regulations in 5 CFR part 551, 7 CFR 354.1, 9 CFR 97.1, 9 CFR 130.50, or 19 CFR 24.16. The DHS fees for agricultural inspection overtime work are not listed in a specific section of the CFR as the Homeland Security Act that first established DHS did not provide any new regulatory authority to DHS but rather used the existing regulatory authority of those agencies or programs whose functions were transferred to DHS. So APHIS' regulatory authority is used to enumerate or revise agricultural inspection overtime rates.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with a few, minor editorial changes.

Executive Order 12866 and Regulatory Flexibility Act

This final rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

APHIS charges hourly overtime rates to individuals, firms, and corporations requesting inspection, testing, certification, or quarantine services at laboratories, border ports, ocean ports, rail ports, quarantine facilities, and airports outside of the regularly established hours of service. These overtime rates are charged to the individuals, firms, or corporations requesting the services, and the fees vary depending on the type of service performed and when the service is provided. This rule amends the fees for reimbursable overtime to reflect increased costs associated with providing these services.

APHIS is updating these fees to take into account the routine increases in the cost of conducting business during overtime hours. The cost to the import/export program to provide these services has increased year to year, and these proposed increases are necessary to more accurately provide the full cost recovery of this Agency activity.

Currently, APHIS charges $51 per hour per employee for inspection, testing, certification, or quarantine of animals or agricultural products outside the employee's regular tour of duty, and $67 per hour per employee for inspection, testing, certification, or quarantine of animals or agricultural products that is performed on Sundays outside the employee's regular tour of duty. APHIS charges $41 per hour per employee for commercial airline inspection services that are performed outside of the regularly established hours of service on a holiday or any other period and $55 per hour per employee for commercial airline inspection services that are performed outside of the regularly established hours of service on a Sunday. This rule establishes hourly overtime rates for each of the fiscal years 2016 through 2018. From FY 2016 through FY 2018, these rates would increase by $24 for inspection, testing, certification, or quarantine of animals or agricultural products outside the employee's regular tour of duty (Monday through Saturday and holidays), by $33 for inspection, testing, certification, or quarantine of animals or agricultural products that is performed on Sundays outside the employee's regular tour of duty, by $24 for commercial airline inspection services that are performed outside of the regularly established hours of service on a holiday or any other period, and by $31 for commercial airline inspection services that are performed outside of the regularly established hours of service on a Sunday.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects 7 CFR Part 354

Animal diseases, Exports, Government employees, Imports, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Travel and transportation expenses.

9 CFR Part 97

Exports, Government employees, Imports, Livestock, Poultry and poultry products, Travel and transportation expenses.

9 CFR Part 130

Animals, Birds, Diagnostic reagents, Exports, Imports, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements, Tests.

Accordingly, we are amending 7 CFR part 354 and 9 CFR parts 97 and 130 as follows:

Title 7—Agriculture PART 354—OVERTIME SERVICES RELATING TO IMPORTS AND EXPORTS; AND USER FEES 1. The authority citation for part 354 continues to read as follows: Authority:

7 U.S.C. 7701-7772, 7781-7786, and 8301-8317; 21 U.S.C. 136 and 136a; 49 U.S.C. 80503; 7 CFR 2.22, 2.80, and 371.3.

2. Section 354.1 is amended as follows: a. By revising paragraph (a)(1) introductory text, including the table. b. In paragraph (a)(1)(i), by removing the words “the Customs Service, Immigration and Naturalization Service” and adding the words “U.S. Customs and Border Protection” in their place. c. By revising the table in paragraph (a)(1)(iii). d. In paragraph (a)(2), by removing the word “A” in the first sentence and adding the words “Except as provided in paragraph (a)(3) of this section, a” in its place. e. By adding paragraph (a)(3). f. In paragraphs (a)(2), (b), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(4), and (f), by adding the words “or U.S. Customs and Border Protection” after the words “Animal and Plant Health Inspection Service” each time they appear.

The addition and revisions read as follows:

§ 354.1 Overtime work at border ports, sea ports, and airports.

(a)(1) Any person, firm, or corporation having ownership, custody, or control of plants, plant products, animals, animal byproducts, or other commodities or articles subject to inspection, laboratory testing, certification, or quarantine under this chapter and subchapter D of chapter I, title 9 CFR, who requires the services of an employee of the Animal and Plant Health Inspection Service or U.S. Customs and Border Protection on a Sunday or holiday, or at any other time outside the regular tour of duty of that employee, shall sufficiently in advance of the period of Sunday, holiday, or overtime service request the Animal and Plant Health Inspection Service or U.S. Customs and Border Protection inspector in charge to furnish the service during the overtime or Sunday or holiday period, and shall pay the Government at the rate listed in the following table, except as provided in paragraphs (a)(1)(i), (ii), and (iii), and (a)(3) of this section:

Overtime for Inspection, Laboratory Testing, Certification, or Quarantine of Plant, Plant Products, Animals, Animal Products or Other Regulated Commodities Outside the employee's normal tour of duty Overtime rates (per hour) Nov. 2, 2015-Sept. 30, 2016 Oct. 1, 2016-Sept. 30, 2017 Beginning
  • Oct. 1, 2017
  • Monday through Saturday and holidays $75 $75 $75 Sundays 99 99 100

    (iii) * * *

    Overtime for Commercial Airline Inspection Services 1 Outside the employee's normal tour of duty Overtime rates (per hour) Nov. 2, 2015-Sept. 30, 2016 Oct. 1, 2016-Sept. 30, 2017 Beginning
  • Oct. 1, 2017
  • Monday through Saturday and holidays $64 $65 $65 Sundays 85 86 86 1 These charges exclude administrative overhead costs.

    (3) The overtime rate and all other charges, including minimum and commute compensation charges, to be billed for services provided by an employee of U.S. Customs and Border Protection shall be charged according to the provisions of this section, 5 CFR part 551, or 19 CFR 24.16.

    Title 9—Animals and Animal Products PART 97—OVERTIME SERVICES RELATING TO IMPORTS AND EXPORTS 3. The authority citation for part 97 continues to read as follows: Authority:

    7 U.S.C. 8301-8317; 49 U.S.C. 80503; 7 CFR 2.22, 2.80, and 371.4.

    4. Section 97.1 is amended as follows: a. By revising paragraph (a) introductory text, including the table. b. In paragraph (a)(1), by removing the words “the Customs Service, Immigration and Naturalization Service” and adding the words “U.S. Customs and Border Protection” in their place. c. By revising the table in paragraph (a)(3). d. By adding paragraph (a)(4). e. In paragraphs (b), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(4), and (f), by adding the words “or U.S. Customs and Border Protection” after the words “Animal and Plant Health Inspection Service” each time they appear.

    The addition and revisions read as follows:

    § 97.1 Overtime work at laboratories, border ports, ocean ports, and airports.1

    1 For designated ports of entry for certain animals, animal semen, poultry, and hatching eggs, see §§ 93.102, 93.203, 93.303, 93.403, 93.503, 93.703, and 93.805 of this chapter. For designated ports of entry for certain purebred animals see §§ 151.1 through 151.3 of this chapter.

    (a) Any person, firm, or corporation having ownership, custody, or control of animals, animal byproducts, or other commodities or articles subject to inspection, laboratory testing, certification, or quarantine under this subchapter and subchapter G of this chapter, and who requires the services of an employee of the Animal and Plant Health Inspection Service or U.S. Customs and Border Protection on a Sunday or holiday, or at any other time outside the regular tour of duty of the employee, shall sufficiently in advance of the period of Sunday, holiday, or overtime service request the Animal and Plant Health Inspection Service or U.S. Customs and Border Protection inspector in charge to furnish the service and shall pay the Government at the rate listed in the following table, except as provided in paragraphs (a)(1), (a)(2), (a)(3), and (a)(4) of this section:

    Overtime for Inspection, Laboratory Testing, Certification, or Quarantine of Plant, Plant Products, Animals, Animal Products or Other Regulated Commodities Outside the employee's normal tour of duty Overtime rates (per hour) Nov. 2, 2015-Sept. 30, 2016 Oct. 1, 2016-Sept. 30, 2017 Beginning
  • Oct. 1, 2017
  • Monday through Saturday and holidays $75 $75 $75 Sundays 99 99 100

    (3) * * *

    Overtime for Commercial Airline Inspection Services 1 Outside the employee's normal tour of duty Overtime rates (per hour) Nov. 2, 2015-Sept. 30, 2016 Oct. 1, 2016-Sept. 30, 2017 Beginning
  • Oct. 1, 2017
  • Monday through Saturday and holidays $64 $65 $65 Sundays 85 86 86 1 These charges exclude administrative overhead costs.

    (4) The overtime rate and all other charges, including minimum and commute compensation charges, to be billed for services provided by an employee of U.S. Customs and Border Protection shall be charged according to the provisions of this section, 5 CFR part 551, or 19 CFR 24.16.

    PART 130—USER FEES 5. The authority citation for part 130 continues to read as follows: Authority:

    5 U.S.C. 5542; 7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 3701, 3716, 3717, 3719, and 3720A; 7 CFR 2.22, 2.80, and 371.4.

    6. Section 130.50 is amended as follows: a. In paragraph (b)(3) introductory text, by removing the words “or (ii)” and adding the words “, (ii), or (iii)” in their place. b. By revising the table in paragraph (b)(3)(i). c. By adding paragraph (b)(3)(iii).

    The addition and revision read as follows:

    § 130.50 Payment of user fees.

    (b) * * *

    (3) * * *

    (i) * * *

    Overtime for Flat Rate User Fees 12 Outside of the employee's normal tour of duty Overtime rates (per hour) Nov. 2, 2015-Sept. 30, 2016 Oct. 1, 2016-Sept. 30, 2017 Beginning
  • Oct. 1, 2017
  • Rate for inspection, testing, certification or quarantine of animals, animal products or other commodities 3 Monday-Saturday and holidays
  • Sundays
  • $75
  • 99
  • $75
  • 99
  • $75
  • 100
  • Rate for commercial airline inspection services 4 Monday-Saturday and holidays
  • Sundays
  • 64
  • 85
  • 65
  • 86
  • 65
  • 86
  • 1 Minimum charge of 2 hours, unless performed on the employee's regular workday and performed in direct continuation of the regular workday or begun within an hour of the regular workday. 2 When the 2-hour minimum applies, you may need to pay commuted travel time. (See § 97.1(b) of this chapter for specific information about commuted travel time.) 3 See § 97.1(a) of this chapter or 7 CFR 354.3 for details. 4 See § 97.1(a)(3) of this chapter for details.

    (iii) For information on rules pertaining to the charges associated with employees of U.S. Customs and Border Protection performing agricultural inspection services, please see 7 CFR 354.1 and 9 CFR 97.1.

    Done in Washington, DC, this 28th day of September 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2015-25101 Filed 10-1-15; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0493; Directorate Identifier 2014-NM-184-AD; Amendment 39-18283; AD 2015-20-05] RIN 2120-AA64 Airworthiness Directives; Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 188 series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the upper and lower wing skin planks at the attachment of the main landing gear (MLG) ribs at certain wing-stations are subject to widespread fatigue damage (WFD). This AD requires an inspection (for cracking) and modification of the chordwise fastener rows of the upper and lower wing planks at the attachments to the MLG ribs at certain wing-stations. We are issuing this AD to prevent fatigue cracking of the upper and lower wing skin planks at the attachment of the MLG ribs, which could result in failure of the wing.

    DATES:

    This AD is effective November 6, 2015.

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

    ADDRESSES:

    For service information identified in this AD, contact Lockheed Martin Corporation/Lockheed Martin Aeronautics Company, Airworthiness Office, Dept. 6A0M, Zone 0252, Column P-58, 86 S. Cobb Drive, Marietta, GA 30063; telephone 770-494-5444; fax 770-494-5445; email [email protected]; Internet http://www.lockheedmartin.com/ams/tools/TechPubs.html. 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-2015-0493.

    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-2015-0493; 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:

    Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5554; fax: 404-474-5605; 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 Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 188 series airplanes. The NPRM published in the Federal Register on March 24, 2015 (80 FR 15525). The NPRM was prompted by an evaluation by the DAH indicating that the upper and lower wing skin planks at the attachment of the MLG ribs at certain wing-stations are subject to WFD. The NPRM proposed to require an inspection (for cracking) and modification of the chordwise fastener rows of the upper and lower wing planks at the attachments to the MLG ribs at certain wing-stations. We are issuing this AD to prevent fatigue cracking of the upper and lower wing skin planks at the attachment of the MLG ribs, which could result in failure of the wing.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 15525, March 24, 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 15525, 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 15525, 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

    We reviewed Lockheed Martin Electra Service Bulletin 88/SB-721, dated April 30, 2014. This service information describes procedures for doing a bolt-hole eddy current (BHEC) inspection for cracking and repair of cracking. This service information also describes procedures for modification of the chordwise fastener rows of the upper and lower wing planks at the attachments to the MLG ribs at wing-station (WS) 167 and WS 209 by removing the original fasteners and replacing them with new first oversize fasteners of the same type or approved substitute type for original fasteners. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

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

    We 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 and Modification 560 work-hours × $85 per hour = $47,600 $5,000 $52,600 $210,400

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

    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): 2015-20-05 Lockheed Martin Corporation/Lockheed Martin Aeronautics Company: Amendment 39-18283; Docket No. FAA-2015-0493; Directorate Identifier 2014-NM-184-AD. (a) Effective Date

    This AD is effective November 6, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 188A and 188C airplanes, certificated in any category, serial numbers 1001 and subsequent.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder indicating that the upper and lower wing skin planks at the attachment of the main landing gear (MLG) ribs at certain wing-stations are subject to widespread fatigue damage. We are issuing this AD to prevent fatigue cracking of the upper and lower wing skin planks at the attachment of the MLG ribs, which could result in failure of the wing.

    (f) Compliance

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

    (g) Inspection, Modification, and Corrective Action

    At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD: Remove the chordwise fastener rows of the upper and lower wing planks at the attachments to the MLG ribs at wing-station (WS) 167 and WS 209; do a bolt-hole eddy current (BHEC) inspection to detect cracking of the fastener rows; and replace the original fasteners with new, first oversize fasteners; in accordance with the Accomplishment Instructions of Lockheed Martin Electra Service Bulletin 88/SB-721, dated April 30, 2014. If any cracking is found during any inspection required by this paragraph: Before further flight, repair the cracking, in accordance with the Accomplishment Instructions of Lockheed Martin Electra Service Bulletin 88/SB-721, dated April 30, 2014.

    (1) At the applicable time specified table 1 of paragraph 1.E., “Compliance,” of Lockheed Martin Electra Service Bulletin 88/SB-721, dated April 30, 2014. Where table 1 of paragraph 1.E., “Compliance,” of Lockheed Martin Electra Service Bulletin 88/SB-721, dated April 30, 2014, specifies “Flt. Hrs,” this AD specifies “total flight hours.”

    (2) Within 365 days or 600 flight hours after the effective date of this AD, whichever occurs first.

    (h) No Reporting

    Although Lockheed Martin Electra Service Bulletin 88/SB-721, dated April 30, 2014, specifies to submit certain information to the manufacturer, this AD does not include that requirement.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta 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.

    (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

    For more information about this AD, contact Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5554; fax: 404-474-5605; 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) Lockheed Martin Electra Service Bulletin 88/SB-721, dated April 30, 2014.

    (ii) Reserved.

    (3) For Lockheed service information identified in this AD, contact Lockheed Martin Corporation/Lockheed Martin Aeronautics Company, Airworthiness Office, Dept. 6A0M, Zone 0252, Column P-58, 86 S. Cobb Drive, Marietta, GA 30063; telephone 770-494-5444; fax 770-494-5445; email [email protected]; Internet http://www.lockheedmartin.com/ams/tools/TechPubs.html.

    (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 18, 2015. Dorr M. Anderson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-24839 Filed 10-1-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0128; Directorate Identifier 2013-NM-133-AD; Amendment 39-18278; AD 2015-19-16] 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 The Boeing Company Model 777 airplanes equipped with Rolls-Royce Trent 800 series engines. This AD was prompted by reports of in-flight separation of the engine's aft plug from the forward plug, which are the two parts of the turbine exhaust plug assembly. This AD requires installation of a serviceable turbine exhaust plug assembly (for certain airplanes), and a general visual inspection (for certain airplanes) to determine the diameter of the bolt used at the forward and aft plug interface, and applicable corrective actions. We are issuing this AD to prevent separation of the aft plug from the forward plug of the turbine exhaust plug assembly, which could result in parts departing the airplane and hitting the empennage, and destabilizing the airplane during a critical flight phase. In addition, parts remaining on a runway could pose a hazard to another airplane.

    DATES:

    This AD is effective November 6, 2015.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 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-2014-0128.

    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-2014-0128; 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:

    Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM-140S, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6501; 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 The Boeing Company Model 777 airplanes equipped with Rolls-Royce Trent 800 series engines. The NPRM published in the Federal Register on March 3, 2014 (79 FR 11725); corrected March 11, 2014 (79 FR 13592). The NPRM was prompted by reports of in-flight separation of the engine's aft plug from the forward plug, which are the two parts of the turbine exhaust plug assembly. The NPRM proposed to require installation of a serviceable turbine exhaust plug assembly (for certain airplanes), and a general visual inspection (for certain airplanes) to determine the diameter of the bolt used at the forward and aft plug interface, and applicable corrective actions. We are issuing this AD to prevent separation of the aft plug from the forward plug of the turbine exhaust plug assembly, which could result in parts departing the airplane and hitting the empennage, and destabilizing the airplane during a critical flight phase. In addition, parts remaining on a runway could pose a hazard to another 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 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592); and the FAA's response to each comment.

    Request To Match Compliance Time

    Cathay Pacific requested that we ensure that the AD compliance date will be the same as the compliance time of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012; or Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014. Cathay Pacific reasoned that paragraph (i) of the proposed AD specified compliance within 60 months after the effective date of the proposed AD, and both revisions of this service information specify a compliance time that is within 60 months after the Revision 3 date of the service bulletin.

    We infer that Cathay Pacific is requesting that we reduce the compliance time of this final rule to match the compliance time listed in the service information. We do not agree with the commenter's request. In developing an appropriate compliance time for this action, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but the manufacturer's recommendation for an appropriate compliance time, the time required for the rulemaking process, the availability of required parts, and the practical aspect of installing the required modification within an interval of time that corresponds to the typical scheduled maintenance for the majority of affected operators. Under the provisions of paragraph (l) of this AD, we may approve requests for adjustments to the compliance time, if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not changed the AD in this regard.

    Request To Define “Serviceable” To Include Pre-Boeing Service Bulletin 777-78-0051 Plug Assemblies

    Cathay Pacific requested that we revise paragraph (j) of the proposed AD; corrected March 11, 2014 (79 FR 13592) to define “serviceable” plug assemblies. Cathay Pacific reasoned that both pre- and post-Boeing Service Bulletin 777-78-0051 plug assemblies can be installed, and the modification can be completed before the required compliance time of the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)).

    We do not agree to revise paragraph (j) of this AD because serviceable assemblies are already defined in paragraph (h) of this AD. This definition applies to the entire AD. Also, pre- Boeing Service Bulletin 777-78-0051 plug assemblies do not meet the definition of serviceable, as specified in the service information.

    Request To Revise Definition of a Serviceable Assembly

    American Airlines (AA) requested that we revise paragraph (h) of the proposed AD to add another definition: Serviceable plug assemblies, as those maintained in accordance with the operator's continued airworthiness maintenance program (CAMP), prior to issuance of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012. AA explained that prior to release of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012, due to reported events of exhaust plug losses by other operators, AA recognized that multiple removals of the exhaust aft plug causes the 3/16″ nutplate locking feature to wear out, which could then result in loss of the aft plug. As a result, AA implemented a maintenance program as part of its CAMP, which offers a level of safety equivalent to that of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012. During every engine removal, for a refurbishment or overhaul shop visit, the pre-Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012, exhaust aft plug nutplates are replaced with new nutplates.

    In addition, AA stated that the holes are inspected for elongation and cracks in accordance with procedures equivalent to Boeing Special Attention Service Bulletin 777-78-0051 inspection procedures. Model 777 Airplane Maintenance Manual Chapter 78-11-02-400-803-R00, requires that the minimum fastener run‐on torque of 2 in‐lbs is met during every installation of the aft exhaust plug. In addition, each of the exhaust aft plug fasteners receives a general visual check, using a ladder/stand and a bright light, every 150 flight hours. AA expressed that it is currently the largest Model 777-200 Trent 800 operator in the worldwide fleet and has not lost an exhaust aft plug due to loose or missing fasteners, as its CAMP demonstrates an equivalent level of safety to the service information.

    As an alternative, AA requested that we revise the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)) to include, as serviceable exhaust aft plugs, those maintained in accordance with the operator's own maintenance program, such as AA's approved CAMP prior to issuance of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012, and to remain in service until the next engine removal for refurbishment or overhaul shop visit, or 60 months from the effective date of the AD, whichever is later.

    We do not agree to include the requested provision. The maintenance program described by AA is likely to be acceptable in lieu of direct compliance with portions of this AD; however, the description of that program provided in AA's comment is not sufficient to serve as engineering data for the FAA to approve as an optional method of compliance in this AD. Operators can submit a request for approval of an alternative method of compliance (AMOC), with a more detailed proposal to use the maintenance program, if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety. We have not changed this AD in this regard.

    Request To Change Compliance Time of Parts Installation Limitation

    Boeing and Cathay Pacific requested that we revise paragraph (j) of the proposed AD to change the installation limitation from the effective date of the AD to the compliance deadline for the AD. Boeing reasoned that paragraph (j) of the proposed AD currently creates an alternative and indeterminate compliance deadline. Boeing explained that during the compliance interval and prior to the AD deadline, operators may be required, due to unforeseen circumstances, to install a unit that is not a serviceable unit, and that under the current wording, this would unnecessarily ground the airplane.

    We do not agree to revise paragraph (j) of this AD to change the installation limitation from the effective date of the AD to the compliance date of the AD. Grace period compliance times are provided in ADs in recognition that an immediate unscheduled modification requirement would be disruptive. A grace period is included to give operators a reasonable period of time to schedule and perform actions that are required by the AD and that otherwise would not have occurred. A parts installation limitation is included in some cases to require that, if the parts affected by the AD are already being removed for a reason other than the AD itself, that opportunity to correct the unsafe condition should be taken. We determine whether such a parts installation limitation should be included in the AD, and what the specific requirements of the limitation will be, based on the risk level associated with the unsafe condition and the expected availability of required replacement parts.

    In this case, we made a determination that the risk warranted the consideration of a parts installation limitation. We also determined that sufficient parts would be available to meet that limitation, and that sufficient time to perform any required actions to make a nozzle assembly serviceable as defined in paragraph (h) of this AD would exist in situations where the nozzle might be removed in maintenance. Specifically, we considered the case of an unscheduled engine change where an operator may not have included a serviceable nozzle assembly with the replacement engine. Modification of a nozzle assembly to meet the definition of a serviceable nozzle can be performed in roughly the same or less elapsed time than it takes to perform the engine replacement itself. We did not foresee any other commonly occurring situation where an engine nozzle assembly would be removed for maintenance. However, as discussed in response to the comment issue “Request to Revise Definition of a Serviceable Assembly,” if an operator specifically and adequately addresses the management of this unsafe condition within its CAMP, we will consider AMOC approvals to allow installation of nozzle assemblies that do not meet the definition of serviceable nozzle in paragraph (h) of this AD.

    We clarified paragraph (j) of this AD as a result of these comments. We considered the explanatory statements about the intent of the parts installation limitation language used in several recent ADs, and determined that different language should be used in this case to more clearly convey the intent of the parts installation limitation contained in this AD. We have added the words “or re-install” to paragraph (j) to clarify that any installation of a nozzle assembly, regardless of the reason for the removal of the nozzle assembly and regardless of the source of the replacement nozzle assembly, is subject to the parts installation limitation of paragraph (j) of this AD.

    Request To Clarify Paragraph (j) of the Proposed AD

    AA requested that we clarify paragraph (j) of the proposed AD. AA explained that paragraph (j) of the proposed AD allows that only a serviceable turbine exhaust plug assembly may be installed on any airplane as of the effective date of this AD, while paragraph (i) of the proposed AD requires a compliance time within a certain time after the effective date of this AD, without any referral to serviceable turbine exhaust plug assembly. AA reasoned that as written, these steps are confusing and could lead operators to believe the actions required by the AD are due as of the effective date of this AD.

    We agree with the commenter and have clarified paragraph (j) of this AD by including references to paragraphs (h)(1) and (h)(2) of this AD.

    Request To Clarify the AMOC Paragraph

    Boeing requested that we revise paragraph (k)(3) of the proposed AD (paragraph (l)(3) of this AD) to indicate that an AMOC, approved for a repaired serviceable unit is to be attached to, and travel with, the repaired serviceable unit. Boeing explained that the AMOC approval should apply to the deviation on the serviceable unit and thereby travel with the serviceable unit, which is rotable and could be installed on numerous airplanes during its service life. Boeing also explained that a unit repaired in accordance with an approved AMOC will fulfill the intent of airplane safety when the unit is installed on an airplane, and that the unit will be in compliance with the AD as long as the part is serviceable as defined by the AD.

    We agree with the commenter and have revised paragraph (l)(3) of this AD accordingly.

    Request To Use the CAMP

    AA requested that we revise the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)), to include language that allows the optional re-identification of the exhaust plug with the correct post-Boeing Special Attention Service Bulletin 777-78-0051, part number identity in accordance with a method approved by the operator's approved CAMP, as the CAMP provides an equivalent level of safety. AA explained that prior to the release of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012, AA implemented a maintenance program to install data plates on the forward and aft exhaust plug. The plates were installed because the manufacturer part number and serial number, which were chemical-etched on the exhaust plug skin by the manufacturer, were no longer legible. AA stated that the data plates contain the original part number, a company-assigned serial number, and the text “MATCHED SET. DO NOT SEPARATE.” AA added that the installed identification plates are in the same location as, but a different length than, the plates specified in Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012.

    We agree to allow alternative permanent part-marking methods. If the markings contain the required information and are permanent, the intent of the marking requirement is addressed, and additional flexibility is provided to operators. Therefore, part-marking methods for the CAMP might be approved, provided that the markings are permanent and contain the information specified in Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014. We have added this information to paragraph (g) of this AD accordingly.

    Request To Eliminate AMOC Approval Requirement for Previous Repairs

    AA requested that we revise paragraph (h) of the proposed AD, to allow repairs accomplished prior to the release of this AD, in accordance with Boeing instructions and approved per 14 CFR part 121.379, or a Boeing ODA, to be included as acceptable repairs in this AD, without the requirement to obtain a Boeing ODA AMOC or Seattle Aircraft Certification Office AMOC approval.

    AA explained that, prior to release of the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)); exhaust aft plugs have received repairs at the exhaust aft plug mate line during inspection or during incorporation of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012, utilizing procedures provided by Boeing without Boeing ODA approval; rather, the repair was approved per 14 CFR part 121.379. AA expressed that paragraph (h) of the proposed AD specifies using a repair method approved in accordance with the procedures specified in paragraph (k) of the proposed AD, and these previously accomplished repairs, which followed Boeing repair instructions, offer an equivalent level of safety to the NPRM.

    We partially agree with the request. We agree to add paragraph (l)(4) in this AD to eliminate the requirement for subsequent AMOC approval for repairs that were previously approved by the Boeing ODA, using an FAA Form 8100-9, and having met the requirements of paragraph (h) of this AD, for the definition of serviceable turbine exhaust plug assemblies. We are confident that the Boeing ODA repair approval process ensures that each repair is reviewed by qualified engineering staff with knowledge of the original airplane design and compliance substantiation. At the same time, we want to ensure that those repairs would have a configuration that meets the definition of serviceable turbine exhaust plug assemblies as defined in the service information. We have added paragraph (l)(4) in this AD to state that repairs approved prior to the effective date of this AD, by the Boeing ODA using FAA Form 8100-9, and having met the requirements of paragraph (h) of this AD for the definition of serviceable turbine exhaust plug assemblies, do not require AMOC approval.

    We disagree, however, to eliminate the AMOC approval requirement for repairs approved by other means. Even though Boeing Service Engineering may have provided a “no technical objection” statement, qualified engineering staff with knowledge of the original airplane design and compliance substantiation may not have been involved in evaluating the repair. We have not changed this AD in this regard.

    Additional Changes to This AD

    We have revised this AD to refer to Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014, as the appropriate source of service information for the required actions. Among other things, this service information adds Group 2 airplanes to paragraph 1.E., “Compliance;” includes a maintenance records check; adds a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface; and adds applicable corrective actions—all of which we have clarified in new paragraph (g)(4) of this AD. Paragraphs (g)(3) and (c) of the proposed AD already accounted for the Group 2 airplanes defined in Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014. Paragraph (g)(2) of the proposed AD accounted for the required actions.

    We have also added a new paragraph (k) to this AD to provide credit for certain actions, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012. We have redesignated the subsequent paragraphs of this AD accordingly.

    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 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)).

    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 Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014. Among other things, this service information adds Group 2 airplanes to paragraph 1.E., “Compliance;” includes a maintenance records check; adds a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface; and adds applicable 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 AD.

    Costs of Compliance

    We estimate that this AD affects 35 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
    Installation 5 work-hours × $85 per hour = $425 $0 $425 $14,875 General visual inspection 2 work-hours × $85 per hour = $170 $0 $170 $5,950

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement (replacing the 3/16-inch bolts with 1/4-inch bolts) 5 work-hours × $85 per hour = $425 $0 $425
    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): 2015-19-16 The Boeing Company: Amendment 39-18278; Docket No. FAA-2014-0128; Directorate Identifier 2013-NM-133-AD. (a) Effective Date

    This AD is effective November 6, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 777-200, -200LR, -300,-300ER, and 777F series airplanes; certificated in any category; equipped with Rolls-Royce Trent 800 series engines.

    (d) Subject

    Air Transport Association (ATA) of America Code 78, Engine Exhaust.

    (e) Unsafe Condition

    This AD was prompted by reports of in-flight separation of the engine's aft plug from the forward plug, which are the two parts of the turbine exhaust plug assembly. We are issuing this AD to prevent separation of the aft plug from the forward plug of the turbine exhaust plug assembly, which could result in parts departing the airplane and hitting the empennage or hitting a person on the ground, and destabilizing the airplane during a critical flight phase; parts remaining on a runway could cause damage to another airplane.

    (f) Compliance

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

    (g) Installation and General Visual Inspection

    At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014, except as provided by paragraph (i) of this AD, do the applicable actions specified in paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of this AD, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014. Alternative part marking methods are allowed for the requirements of this paragraph, if approved by the FAA principal maintenance inspector, provided that the markings are permanent and contain the information required by Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014.

    (1) For airplanes identified as Group 1, Configuration 1, in Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014: Install a serviceable turbine exhaust plug assembly.

    (2) For airplanes identified as Group 1, Configurations 2 and 3, in Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014: Do a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface, and before further flight, do all applicable corrective actions.

    (3) For airplanes listed in paragraph (c) of this AD that are not listed in the “Effectivity” section of Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014: Do a general visual inspection to determine if a serviceable turbine exhaust plug assembly is installed. If a serviceable turbine exhaust plug assembly is not installed, before further flight, install a serviceable turbine exhaust plug assembly.

    (4) For airplanes identified as Group 2, in Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014: Do a maintenance records check to determine affected turbine exhaust plug assemblies, and for affected assemblies, do a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface, and before further flight, do all applicable corrective actions.

    (h) Definition of Serviceable Assembly

    For the purposes of this AD, an acceptable serviceable turbine exhaust plug assembly must meet the conditions specified in paragraph (h)(1) or (h)(2) of this AD.

    (1) A new assembly with part number 314W5520-22.

    (2) A serviceable assembly as defined in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014; except, for any assembly on which the actions specified in Part 2 or Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014, are done, and Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014, specifies to contact Boeing for repair instructions, this AD requires repair before further flight, using a method approved in accordance with the procedures specified in paragraph (l)(1) of this AD.

    (i) Exception to Service Information Specifications

    Where paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014, specifies a compliance time “after the Revision 3 date of this service bulletin,” or “after the Revision 4 date of this service bulletin,” this AD requires compliance within the applicable time after the effective date of this AD.

    (j) Parts Installation Limitation

    As of the effective date of this AD, only a serviceable turbine exhaust plug assembly that meets the requirements of paragraph (h)(1) or (h)(2) of this AD may be installed or reinstalled on any airplane.

    (k) Credit for Previous Actions

    This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012 (which is not incorporated by reference in this AD), provided that for Group 1, Configuration 2, airplanes, on which the condition defined in Table 2 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-78-0051, Revision 3, dated August 23, 2012, was found (i.e., only 1/4 inch diameter bolts are found installed at all 33 locations forward and aft plug interface), the re-identification of the forward and aft plug was done before further flight after the inspection.

    (l) 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 (m) 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. An AMOC approved as described in this paragraph for a specific serviceable nozzle assembly may be transferred with that nozzle assembly to another aircraft without an additional AMOC approval being required.

    (4) Repairs approved prior to the effective date of this AD by the Boeing ODA do not require AMOC approval if those repairs were approved using FAA Form 8100-9 and those repairs meet the definition of a serviceable assembly contained in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 2014.

    (m) Related Information

    (1) For more information about this AD, contact Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM-140S, Seattle Aircraft Certification Office (ACO) FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6501; fax: 425-917-6590; email: [email protected].

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(3) and (n)(4) of this AD.

    (n) 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 Special Attention Service Bulletin 777-78-0051, Revision 4, dated February 7, 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 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. 2015-24677 Filed 10-1-15; 8:45 am] BILLING CODE 4910-13-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Parts 15, 18, 36, 40, 140 RIN 3038-AE10 Repeal of the Exempt Commercial Market and Exempt Board of Trade Exemptions AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commodity Futures Trading Commission (the “Commission”) is taking final action to revise its regulations by removing the part 36 regulations. Those regulations implemented provisions of the Commodity Exchange Act (“CEA”) that established exempt boards of trade and exempt commercial markets—two categories of derivatives-trading platforms that were eliminated from the CEA by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). This action also removes various cross-references in other Commission regulations implicating exempt boards of trade and exempt commercial markets.

    DATES:

    This rulemaking is effective on October 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; Dana R. Brown, Division of Market Oversight, telephone (202) 418-5093 and email [email protected].

    SUPPLEMENTARY INFORMATION:

    I. Background

    On July 21, 2010, President Obama signed the Dodd-Frank Act into law. 1 Title VII of the Dodd-Frank Act 2 amended the CEA 3 to establish a comprehensive framework for the regulation of over-the-counter derivatives, also known as swaps. Among other reforms, Title VII requires that any person who operates a facility to trade swaps register as a designated contract market (“DCM”) or a swap execution facility (“SEF”); 4 the latter is a category of trading market newly established under the law. Concurrently, Title VII eliminated from the CEA two categories of exempt markets for the trading of derivatives originally established in the CEA by the Commodity Futures Modernization Act of 2000 (“CFMA”): 5 exempt commercial markets (“ECMs”) and exempt boards of trade (“EBOTs”).

    1 Public Law 111-203, 124 Stat. 1376 (July 21, 2010).

    2 Pursuant to Section 701 of the Dodd-Frank Act, Title VII may be cited as the “Wall Street Transparency and Accountability Act of 2010.”

    3 7 U.S.C. 1 et seq. (2012).

    4 Dodd-Frank Act Section 733 (amending the CEA to add new section 5h).

    5 Public Law 106-554, 114 Stat. 2763 (December 21, 2000).

    Under the CFMA's revisions to the CEA, ECMs could trade exempt commodities 6 (i.e. any commodity other than an excluded commodity 7 and agricultural commodities) on electronic trading facilities between eligible commercial entities 8 without complying with comprehensive designation criteria and core principles that were applicable to designated contract markets. A facility that elected to operate as an ECM was generally exempt from regulation, but was still required to comply with certain informational and recordkeeping requirements, if the market satisfied the conditions for the exemption found in Sections 2(h)(3) through (5) of the CEA, 7 U.S.C. 2(h)(3)-(5), including a requirement that the ECM notify the Commission of its intent to rely upon the exemption.9

    6See CFMA Section 101(4) (amending CEA to add definition of “Exempt Commodity,” currently codified as CEA Section 1(a)(20), 7 U.S.C. 1a(20) (2012).

    7 “Excluded Commodity” is also a statutorily defined term, currently codified as CEA Section 1(a)(19), 7 U.S.C. 1a(19) (2012). Generally characterized, the term captures, among other things specified financial instruments, measures, and indexes (e.g., securities and security indexes, currencies, interest rates, debt instruments, and credit ratings); any “other rate, differential, index, or measure of economic or commercial risk, return or value” not substantially based on the value of a narrow commodity group or solely based on a commodity or commodities with no cash value; and other economic or commercial indexes, or occurrences and contingencies associated with an economic consequence, beyond the control of parties to the relevant contract, agreement or transaction.

    8 The definition of “Eligible Commercial Entity” is found in Section 1a(17) of the CEA. 7 U.S.C. 1a(17) (2006).

    9 The Commission's part 36 regulations established similar requirements for EBOTs.

    Under CEA Section 5d, 7 U.S.C. 7a-3, EBOTs were facilities that traded commodities (other than securities or securities indexes) that had a nearly inexhaustible deliverable supply and either no cash market or a cash market so liquid that any contract traded on the commodity was highly unlikely to be susceptible to manipulation. EBOT transactions were limited to eligible contract participants 10 and subject to minimal trading prohibitions, including anti-fraud and anti-manipulation restrictions. EBOTs were required to file notice with the Commission of their election to operate as an EBOT.11

    10 The definition of “Eligible Contract Participant” is found in Section 1a(18) of the CEA, 7 U.S.C. 1a(18) (2012).

    11 The Commission's Part 36 regulations established similar requirements for ECMs.

    Section 723 of the Dodd-Frank Act repealed CEA Section 2(h)(3) as it then existed,12 thus eliminating the ECM category. Section 734 of the Dodd-Frank Act similarly repealed CEA Section 5d,13 thus eliminating the EBOT category. Both Sections 723 and 734 of the Dodd-Frank Act contain grandfather provisions allowing existing ECMs and EBOTs to petition the Commission to continue to operate as ECMs and EBOTs subject to the requirements of the CEA Sections 2(h)(3) and 5d, respectively, for a limited period of time.14 Pursuant to these grandfather provisions, the Commission issued an order in September 2010 granting petitioning ECMs and EBOTs up to one year of grandfather relief from the general effective date of the Dodd-Frank Act amendments to the CEA (“Grandfather Relief Order”).15

    12 The Dodd-Frank Act amended Section 2(h) of the CEA effective July 16, 2011, H.R. 4173, Section 723(a)(1), Public Law 111-203, 124 Stat. 1376, by striking existing subsection (h)—“Transactions in exempt commodities” and inserting new subsection (h)—“Clearing requirement” not addressed to exempt commercial markets.

    13 The Dodd-Frank Act repealed Section 5d of the CEA effective July 16, 2011, H.R. 4173, Section 734(a), Public Law 111-203, 124 Stat. 1376 (2010).

    14 ECMs and EBOTs were permitted to continue operations until July 16, 2012 pursuant to a grandfather relief order issued by the Commission pursuant to Sections 723(c)(2)(B) and 734(c)(2) of the Dodd-Frank Act, respectively.

    15 75 FR 56513 (September 16, 2010).

    Subsequent to the Grandfather Relief Order, the Commission issued a series of orders 16 and Commission staff issued various no-action letters 17 that effectively extended expiration of the relief provided to ECMs and EBOTs in the Grandfather Relief Order. Collectively, the Grandfather Relief Order and subsequent Commission orders and staff no-action letters allowed ECMs and EBOTs, as well as other markets that relied on various pre-Dodd-Frank Act provisions of the CEA,18 to continue operations under a regulatory status quo and, thus, ensured that industry practices would not be unduly disrupted during the transition to the new Dodd-Frank Act regulatory regime.19

    16 76 FR 42522 (July 19, 2011), 76 FR 80233 (December 23, 2011), and 77 FR 41260 (July 13, 2012).

    17 CFTC No-Action Letter No. 12-48 (December 11, 2012), available at: http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/12-48.pdf and CFTC No-Action Letter No. 13-28 (June 17, 2013), available at: http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/13-28.pdf.

    18See e.g., CEA Sections 2(d), 2(e), 2(g), 2(h), and 5d.

    19 The Commission orders and no-action letters were generally structured to permit transactions and relevant persons and entities to continue to rely on various CEA exemptive and excluding provisions in place prior to July 16, 2011 subject to other conditions, various anti-fraud and anti-manipulation prohibitions and the expiration of exemptive relief orders as various Dodd-Frank Act implementing regulations became effective.

    The Grandfather Relief Order and various subsequent Commission orders have all expired, and entities that previously operated as ECMs or EBOTs are seeking registration to become either DCMs or SEFs to continue their operations. Accordingly, the Commission is removing all references to the Commission exemptive orders from Title 17 of the Code of Federal Regulations.

    As discussed in section III.A. below, the Commission is publishing this final rule pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(A), which provides that the requirements for notice and opportunity for public comment do not apply to “rules of agency organization, procedure, or practice . . . .” 20 The rulemaking conforms the Commission's regulations to the statutory requirements of the CEA by removing provisions that are of no legal effect because they concern exempt market categories that Congress, through the Dodd-Frank Act, removed from the statute; the Commission has no authority or discretion under the statute to retain the ECM and EBOT category designations in its regulations. As such, the amendments effected through this rulemaking—which have no impact on substantive rights or obligations under the CEA, as amended by the Dodd-Frank Act—are entirely ministerial and procedural in nature.

    20See 5 U.S.C. 553(b) & (c).

    II. Amended Regulations A. Part 36

    The Commission is removing part 36 of its regulations in its entirety in order to reflect the Dodd-Frank Act's elimination of the two categories of exempt markets—ECMs and EBOTs—from the CEA.

    B. Parts 15, 18, 40, and 140

    The Commission is removing from parts 15, 18, 40, and 140 all references to the Grandfather Relief Orders added to the Commission's regulations by Adaptation of Regulations To Incorporate Swaps rulemaking,21 as the authority under which those orders were issued has expired, and is removing all references in the Commission's regulations to the terms ECMs, EBOTs, and electronic trading facilities (as sometimes used in the Commission's regulations to refer to ECMs).22

    21 Adaptation of Regulations To Incorporate Swaps, 77 FR 66288 (November 2, 2012).

    22 The Commission proposed and finalized rules in the “Adaptation of Regulations to Incorporate SEFs” to make a number of conforming amendments to integrate the Commission's regulations more fully with the new swaps framework created by the Dodd-Frank Act. 77 FR 66288 (November 2, 2012).

    1. Regulation 15.05: Designation of agent for foreign persons.

    The Commission is removing from regulation 15.05 all references to contracts identified in part 36.

    2. Regulation 18.05: Maintenance of books and records.

    The Commission is removing from regulation 18.05 all references to ECMs and EBOTs.

    3. Regulation 40.8: Availability of public information.

    The Commission is removing from regulation 40.8 all references to electronic trading facilities on which significant price discovery contracts are traded or executed.

    4. Appendix D to Part 40—Submission Cover Sheet and Instructions.

    The Commission is removing from Appendix D to part 40 the reference to electronic trading facilities with a significant price discovery contract.

    5. Regulation 140.99: Requests for exemptive, no-action and interpretative letters.

    The Commission is removing from regulation 140.99 all references to ECMs and EBOTs.

    III. Administrative Compliance A. Administrative Procedure Act

    The Administrative Procedure Act (“APA”) 23 generally requires a Federal agency to publish notice of a proposed rulemaking in the Federal Register and allow opportunity for public comment before propounding a final rule.24 This requirement does not apply, however, to non-legislative rules of “agency organization, procedure, or practice.” 25 In this case, the revisions to the Commission's regulations in this rulemaking do not establish any new substantive or legislative rules. Rather, this final rule makes technical amendments to various Commission regulations to reflect the fact that Congress has eliminated the ECM and EBOT category designations from the CEA. As such, the amendments effected through this rulemaking—which have no impact on substantive rights or obligations under the CEA, as amended by the Dodd-Frank Act—are entirely ministerial and procedural in nature. This final rule shall become effective upon publication in the Federal Register.

    23 5 U.S.C. 551 et seq.

    24See 5 U.S.C. 553(b) & (c).

    25See 5 U.S.C. 553(b)(A).

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act requires the Commission to consider whether the regulations it adopts will have a significant economic impact on a substantial number of small entities.26 The Commission certifies that this rulemaking will have no significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act.27 There is no additional submission required as a result of this action. Accordingly, the Commission is not obligated to conduct a regulatory flexibility analysis for this rulemaking.

    26See 5 U.S.C. 601 et seq.

    27See id.

    C. Paperwork Reduction Act

    The Commission may not conduct or sponsor, and a respondent is not required to respond to, a collection of information contained in a rulemaking unless the information collection displays a currently valid control number issued by the Office of Management and Budget (“OMB”) pursuant to the Paperwork Reduction Act.28 This rulemaking contains no collection of information that obligates the Commission to obtain a control number from OMB.

    28See 44 U.S.C. 3501 et seq.

    D. Cost-Benefit Considerations 1. Introduction

    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.29 Section 15(a) further specifies that the costs and benefits shall be evaluated in light of 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.

    29 7 U.S.C. 19(a).

    The Commission is removing its Part 36 regulations and amending §§ 15.05, 18.05, 40.8, Appendix D to part 40, and § 140.00. Part 36 originally implemented provisions of the pre-Dodd-Frank CEA that established EBOTs and ECMs—two categories of derivatives-trading platforms that were eliminated from the CEA by the Dodd-Frank Act—while the other regulations contained references to ECM and EBOTs. The Commission is using the CEA, as amended by the Dodd-Frank Act, as the baseline for assessing whether and to what extent costs or benefits are likely to flow from the amendments, and is only considering the costs and benefits of its discretionary actions permissible within the parameters of the statute.

    2. Costs

    Since the Dodd-Frank Act eliminated ECMs and EBOTs from the CEA, the Commission lacks authority to make or retain provisions for them within its regulations. Accordingly, there are no costs to the industry or the public associated with the amendments to remove implementing language for ECMs and EBOTs in part 36 and obsolete, vestigial references to ECMs and EBOTs in parts 15, 18, 40, and 140.

    3. Benefits

    The Commission believes that market participants and the public will benefit from these ministerial rule amendments since they eliminate obsolete, vestigial provisions and references that otherwise could be construed to give rise to confusing inconsistencies between the Commission's regulations and the provisions of the CEA, as amended by the Dodd-Frank Act.

    4. Section 15(a) Factors

    Protection of market participants and the public. By squaring its regulations with Dodd-Frank Act amendments to the CEA eliminating authorization for ECMs and EBOTs, the Commission believes it is furthering the interest of protecting market participants and the public. These amendments eliminate potential for confusion that otherwise might arise from retaining outdated provisions addressed to statutorily-obsolesced trading platforms.

    Efficiency, competitiveness, and financial integrity of futures markets. The Commission believes that the amendments will not materially affect the efficiency, competitiveness, and financial integrity of futures markets.

    Price discovery. The Commission believes that the amendments will not materially affect the price discovery process.

    Sound risk management practices. The Commission believes that the amendments will not materially affect sound risk management practices.

    Other public interest considerations. The Commission believes that the amendments will not materially affect other public interest considerations.

    List of Subjects 17 CFR Part 15

    Brokers, Reporting and recordkeeping requirements.

    17 CFR Part 18

    Reporting and recordkeeping requirements.

    17 CFR Part 36

    Commodity futures.

    17 CFR Part 40

    Commodity futures, Reporting and recordkeeping requirements.

    17 CFR Part 140

    Authority delegations (government agencies), Conflicts of interest, Organization and functions (government agencies).

    For the reasons stated in the preamble, under the authority of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010), the Commodity Futures Trading Commission amends 17 CFR chapter I as set forth below:

    PART 15—REPORTS—GENERAL PROVISIONS 1. The authority citation for part 15 continues to read as follows: Authority:

    7 U.S.C. 2, 5, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 7, 7a, 9, 12a, 19, and 21, 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 paragraph (a) of § 15.05 to read as follows:
    § 15.05 Designation of agent for foreign persons.

    (a) For purposes of this section, the term “futures contract” means any contract for the purchase or sale of any commodity for future delivery, traded or executed on or subject to the rules of any designated contract market, or for the purposes of paragraph (i) of this section, a reporting market (including all agreements, contracts and transactions that are treated by a clearing organization as fungible with such contracts); the term “option contract” means any contract for the purchase or sale of a commodity option, or as applicable, any other instrument subject to the Act, traded or executed on or subject to the rules of any designated contract market, or for the purposes of paragraph (i) of this section, a reporting market (including all agreements, contracts and transactions that are treated by a clearing organization as fungible with such contracts); the term “customer” means any person for whose benefit a foreign broker makes or causes to be made any futures contract or option contract; and the term “communication” means any summons, complaint, order, subpoena, special call, request for information, or notice, as well as any other written document or correspondence.

    PART 18—REPORTS BY TRADERS 3. The authority citation for part 18 continues to read as follows: Authority:

    7 U.S.C. 2, 4, 5, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 6t, 12a, and 19, as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (2010).

    § 18.05 [Amended]
    4. Amend § 18.05 as follows: a. Remove paragraphs (a)(3) and (a)(4); b. In paragraph (a)(2), add the word “and” after the semicolon at the end of the paragraph; and c. Redesignate paragraph (a)(5) as paragraph (a)(3).
    PART 36—[REMOVED AND RESERVED] 5. Remove and reserve part 36. PART 40—PROVISIONS COMMON TO REGISTERED ENTITIES 6. The authority citation for part 40 continues to read as follows: Authority:

    7 U.S.C. 1a, 2, 5, 6, 7, 7a and 12, as amended by Titles VII and VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (2010).

    § 40.8 [Amended]
    7. Amend § 40.8 by removing and reserving paragraph (b).
    8. Revise Appendix D to part 40 to read as follows: Appendix D to Part 40—Submission Cover Sheet and Instructions

    (a) A properly completed submission cover sheet shall accompany all rule and product submissions submitted electronically by a registered entity in a format and manner specified by the Secretary of the Commission to the Secretary of the Commission. A properly completed submission cover sheet shall include all of the following:

    1. Identifier Code (optional)—A registered entity Identifier Code at the top of the cover sheet, if applicable. Such codes are commonly generated by registered entities to provide an identifier that is unique to each filing (e.g., NYMEX Submission 03-116).

    2. Date—The date of the filing.

    3. Organization—The name of the organization filing the submission (e.g., CBOT).

    4. Filing as a—Check in the appropriate box indicating that the rule or product is being submitted by a designated contract market (DCM), derivatives clearing organization (DCO), swap execution facility (SEF), or swap data repository (SDR).

    5. Type of Filing—An indication as to whether the filing is a new rule, rule amendment or new product. The registered entity should check the appropriate box to indicate the applicable category under that heading.

    6. Rule Numbers—For rule filings, the rule number(s) being adopted or modified in the case of rule amendment filings.

    7. Description—For rule or rule amendment filings, a description of the new rule or rule amendment, including a discussion of its expected impact on the registered entity, market participants, and the overall market. The narrative should describe the substance of the submission with enough specificity to characterize all material aspects of the filing.

    (b) Other Requirements—A submission shall comply with all applicable filing requirements for proposed rules, rule amendments, or products. The filing of the submission cover sheet does not obviate the registered entity's responsibility to comply with applicable filing requirements (e.g., rules submitted for Commission approval under § 40.5 must be accompanied by an explanation of the purpose and effect of the proposed rule along with a description of any substantive opposing views).

    (c) Checking the box marked “confidential treatment requested” on the Submission Cover Sheet does not obviate the submitter's responsibility to comply with all applicable requirements for requesting confidential treatment in § 40.8 and, where appropriate, § 145.9 of this chapter, and will not substitute for notice or full compliance with such requirements.

    PART 140—ORGANIZATION, FUNCTIONS, AND PROCEDURES OF THE COMMISSION 9. The authority citation for part 140 continues to read as follows: Authority:

    7 U.S.C. 2(a)(12), 12a, 13(c), 13(d), 13(e), and 16(b).

    10. Revise paragraph (d)(2)(i) of § 140.99 to read as follows:
    § 140.99 Requests for exemptive, no-action and interpretative letters.

    (d) * * *

    (2)(i) A request for a Letter relating to the provisions of the Act or the Commission's rules, regulations or orders governing designated contract markets, registered swap execution facilities, registered swap data repositories, registered foreign boards of trade, the nature of particular transactions and whether they are exempt or excluded from being required to be traded on one of the foregoing entities, made available for trading determinations, position limits, hedging exemptions, position aggregation treatment or the reporting of market positions shall be filed with the Director, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    Issued in Washington, DC, on September 28, 2015, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. NOTE:

    The following appendix will not appear in the Code of Federal Regulations.

    Appendix To Repeal of the Exempt Commercial Market and Exempt Board of Trade Exemptions—Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.

    [FR Doc. 2015-25029 Filed 10-1-15; 8:45 am] BILLING CODE 6351-01-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 232 [Release Nos. 33-9911; 34-75918; 39-2506; IC-31823] Adoption of Updated EDGAR Filer Manual AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Securities and Exchange Commission (the Commission) is adopting revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual and related rules to reflect updates to the EDGAR system. The updates are being made to add two new Security-based Swap Data Repository (SDR) submission form types; make available new exhibit EX-36 (Depositor Certification for shelf offerings of asset-backed securities) on EDGARLink Online for submission form types SF-3, SF-3/A, 8-K, and 8-K/A; accept Exhibit K and Exhibit L in eXtensible Business Reporting Language (XBRL) format for submission form types SDR, SDR/A, SDR-A, and SDR-W; consider valid XBRL file attachments if they contain multiple identically tagged XBRL facts; make documentation updates to Chapter 2 of the “EDGAR Filer Manual, Volume I: General Information” and Chapters 2, 3, and 7 of the “EDGAR Filer Manual, Volume II: EDGAR Filing” relating to Form NRSRO; and make formatting changes to “EDGAR Filer Manual, Volume I: General Information”, “EDGAR Filer Manual, Volume II: EDGAR Filing”, and “EDGAR Filer Manual, Volume III: N-SAR Supplement” for compliance with Section 508 of the U.S. Rehabilitation Act. The Filer Manual is also being revised to address software changes made previously in EDGAR. On July 10, 2015, Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, and 1-A POS were updated to prevent a filer from entering a response in Item 6(d) when the “None” option has been selected on Item 6. The EDGAR system is scheduled to be upgraded to support this functionality on September 14, 2015.

    DATES:

    Effective October 2, 2015. The incorporation by reference of the EDGAR Filer Manual is approved by the Director of the Federal Register as of October 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    In the Division of Trading and Markets, for questions concerning SDR and NRSRO form types, contact Kathy Bateman at (202) 551-4345; in the Division of Corporation Finance, for questions concerning SF-3, 8-K, and Regulation A form types, contact Heather Mackintosh at (202) 551-8111; in the Division of Economic and Risk Analysis, for questions concerning XBRL submissions, contract Walter Hamscher at (202) 551-5397; and in the Office of Information Technology, for questions concerning Section 508 of the U.S. Rehabilitation Act, contact Tammy Borkowski at (202) 551-7208.

    SUPPLEMENTARY INFORMATION:

    We are adopting an updated EDGAR Filer Manual, Volume I, Volume II, and Volume III. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.1 It also describes the requirements for filing using EDGARLink Online and the Online Forms/XML Web site.

    1 We originally adopted the Filer Manual on April 1, 1993, with an effective date of April 26, 1993. Release No. 33-6986 (April 1, 1993) [58 FR 18638]. We implemented the most recent update to the Filer Manual on August 3, 2015. See Release No. 33-9874 (August 24, 2015) [80 FR 51123].

    The revisions to the Filer Manual reflect changes within Volume I entitled EDGAR Filer Manual, Volume I: “General Information,” Version 23 (September 2015), Volume II entitled EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 34 (September 2015), and Volume III entitled EDGAR Filer Manual, Volume III: “N-SAR Supplement,” Version 5 (September 2015). The updated manual will be incorporated by reference into the Code of Federal Regulations.

    The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.2 Filers may consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission.3

    2See Rule 301 of Regulation S-T (17 CFR 232.301).

    3See Release No. 33-9874 in which we implemented EDGAR Release 15.2.2. For additional history of Filer Manual rules, please see the cites therein.

    The EDGAR system will be upgraded to Release 15.3 on September 14, 2015 and will introduce the following changes:

    As part of the final rules adopted on January 14, 2015 for regulating security-based swap data repositories (SDR), the following submission form types will be added to EDGAR: 4

    4See Security-Based Swap Data Repository Registration, Duties, and Core Principles, Exchange Act Release No. 34-74246 (Feb. 11, 2015), 80 FR 14437 (March 9, 2015).

    • SDR-CCO—Annual Compliance Report and Annual Financial Report • SDR-CCO/A—Amendment to Annual Compliance Report and Annual Financial Report

    These submission form types can be accessed by selecting the `EDGARLink Online Form Submission' link on the EDGAR Filing Web site. Additionally, applicants may construct XML submissions for SDR-CCO and SDR-CCO/A by following the “EDGARLink Online XML Technical Specification” document available on the SEC's Public Web site (http://www.sec.gov/info/edgar.shtml).

    Submission form types SDR-CCO and SDR-CCO/A will include the “Request Confidentiality” check box to allow applicants to request confidential treatment for each attached document. After an SDR-CCO or SDR-CCO/A filing is submitted, SEC staff will review the submission and make a determination of whether the information for which confidential treatment is requested should be made public. EDGAR will only disseminate the attached documents of the submission that the SEC staff has determined to be public.

    In connection with the Commission's revised rules and forms for disclosure by asset-backed securities issuers, new exhibit EX-36 (Depositor Certification for shelf offerings of asset-backed securities) will be available on EDGARLink Online for submission form types SF-3, SF-3/A, 8-K, and 8-K/A.5 This change will allow registrants to file a certification required for shelf offerings of asset-backed securities as an EX-36. Filers will have the option to attach exhibit EX-36 in official HTML or ASCII format (and unofficially in PDF format) on submission form types SF-3 and SF-3/A and on submission form types 8-K and 8-K/A, when the SIC code associated with the Primary Filer CIK is 6189 (Asset-Backed Securities).

    5See Asset-Backed Securities Disclosure and Registration, Securities Act Release No. 33-9638 (September 4, 2014).

    EDGAR will be updated to include the following XBRL document types for submission form types SDR, SDR/A, SDR-A, and SDR-W:

    • EX-99.K SDR.INS, EX-99.K SDR.SCH, EX-99.K SDR.PRE, EX-99.K SDR.LAB, EX-99.K SDR.CAL, and EX-99.K SDR.DEF • EX-99.L SDR.INS, EX-99.L SDR.SCH, EX-99.L SDR.PRE, EX-99.L SDR.LAB, EX-99.L SDR.CAL, and EX-99.L SDR.DEF

    Filers will now be able to submit SDR Exhibit K and Exhibit L in XBRL format for submission form types SDR, SDR/A, SDR-A, and SDR-W. Filers can continue to provide SDR Exhibit K and Exhibit L in ASCII or HTML formats for submission form types SDR, SDR/A, SDR-A, and SDR-W.

    XBRL file attachments will be considered valid if they contain multiple identically tagged XBRL facts.

    Documentation updates were made to Chapter 2 of the “EDGAR Filer Manual, Volume I: General Information” and Chapters 2, 3, and 7 of the “EDGAR Filer Manual, Volume II: EDGAR Filing” relating to Form NRSRO.

    Formatting changes were made to “EDGAR Filer Manual, Volume I: General Information”, “EDGAR Filer Manual, Volume II: EDGAR Filing”, and “EDGAR Filer Manual, Volume III: N-SAR Supplement” for compliance with Section 508 of the U.S. Rehabilitation Act.

    The Filer Manual is also being revised to address software changes made previously in EDGAR. On July 10, 2015, EDGAR Release 15.2.e.4 introduced the following change:

    • Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, and 1-A POS were updated to prevent a filer from entering a response in Item 6(d) when the “None” option has been selected on Item 6.

    Along with the adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

    The updated EDGAR Filer Manual will be available for Web site viewing and printing; the address for the Filer Manual is http://www.sec.gov/info/edgar.shtml. You may also obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m.

    Since the Filer Manual and the corresponding rule changes relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).6 It follows that the requirements of the Regulatory Flexibility Act 7 do not apply.

    6 5 U.S.C. 553(b).

    7 5 U.S.C. 601-612.

    The effective date for the updated Filer Manual and the rule amendments is October 2, 2015. In accordance with the APA,8 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The EDGAR system upgrade to Release 15.3 is scheduled to become available on September 14, 2015. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with the system upgrade.

    8 5 U.S.C. 553(d)(3).

    Statutory Basis

    We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,9 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934,10 Section 319 of the Trust Indenture Act of 1939,11 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940.12

    9 15 U.S.C. 77f, 77g, 77h, 77j, and 77s(a).

    10 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78w, and 78ll.

    11 15 U.S.C. 77sss.

    12 15 U.S.C. 80a-8, 80a-29, 80a-30, and 80a-37.

    List of Subjects in 17 CFR Part 232

    Incorporation by reference, Reporting and recordkeeping requirements, Securities.

    Text of the Amendment

    In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:

    PART 232—REGULATION S-T—GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS 1. The authority citation for Part 232 continues to read in part as follows: Authority:

    15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350 unless otherwise noted.

    2. Section 232.301 is revised to read as follows:
    § 232.301 EDGAR Filer Manual.

    Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets out the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 23 (September 2015). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 34 (September 2015). Additional provisions applicable to Form N-SAR filers are set forth in the EDGAR Filer Manual, Volume III: “N-SAR Supplement,” Version 5 (September 2015). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must comply with these requirements in order for documents to be timely received and accepted. The EDGAR Filer Manual is available for Web site viewing and printing; the address for the Filer Manual is http://www.sec.gov/info/edgar.shtml. You can obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. You can also inspect the document 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.

    By the Commission.

    Dated: September 15, 2015. Brent J. Fields, Secretary.
    [FR Doc. 2015-24904 Filed 10-1-15; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF JUSTICE Bureau of Alcohol, Tobacco, Firearms, and Explosives 27 CFR Part 555 [Docket No. ATF 2013R-9F; AG Order No. 3566-2015] Technical Amendments to Regulations; Correction AGENCY:

    Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice.

    ACTION:

    Final rule; Correcting amendments.

    SUMMARY:

    The Department of Justice published in the Federal Register of August 11, 2014, a final rule making technical changes to correcting a technical amendment to a definition in the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations related to commerce in explosives. That document inadvertently included an incorrect definition for “Customs officer” in 27 CFR part 555. This final rule corrects the 2014 amendments by revising the definition.

    DATES:

    This rule is effective October 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Shermaine Kenner, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Avenue NE., Washington, DC 20226; telephone: (202) 648-7070 (this is not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    Background

    The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) administers regulations published in title 27, chapter II, Code of Federal Regulations (CFR). On August 11, 2014, the Department of Justice (DOJ) published in the Federal Register a final rule that made technical amendments and corrected typographical errors in ATF regulations in the CFR (79 FR 46690). Many of the technical changes were made to reflect changes in nomenclature resulting from the transfer of ATF to DOJ from the Department of the Treasury, pursuant to the Homeland Security Act of 2002. The changes were designed to provide clarity and enhance uniformity throughout these regulations.

    The 2014 technical amendments inadvertently contained an incorrect definition for “Customs officer” in 27 CFR part 555. This final rule corrects the changes in the Code of Federal Regulations made by the 2014 technical amendments by revising the definition. Section 555.11, defining “Customs officer,” is being amended so that it no longer contains a reference to “Customs Service.” The new definition reads as follows: “Any officer of U.S. Customs and Border Protection, any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law to perform the duties of a customs officer.”

    How This Document Complies With the Federal Administrative Requirements for Rulemaking A. Executive Order 12866 and Executive Order 13563

    This final rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), The Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1, General Principles of Regulation. This rule is limited to agency organization, management, or personnel matters as described by Executive Order 12866, section 3(d)(3) and, therefore, is not a “regulation” or “rule” as defined by that Executive Order.

    B. Executive Order 13132

    This final rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, “Federalism,” the Attorney General has determined that this regulation does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

    C. Executive Order 12988

    This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”

    D. Administrative Procedure Act

    This final rule is purely a matter of agency management. Accordingly, this rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in the effective date. See 5 U.S.C. 553(a)(2). In addition, prior notice and comment are not required because the final rule is a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(b). Moreover, the Department finds good cause for exempting the rule from those requirements. Because this final rule makes a technical correction for accuracy and to improve the clarity of the regulations, the Department finds it unnecessary to publish this rule for public notice and comment. See 5 U.S.C. 553(b). Similarly, because delaying the effective date of this rule would serve no purpose, the Department also finds good cause to make this rule effective upon publication. See 5 U.S.C. 553(d)(3).

    E. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. Further, a Regulatory Flexibility Analysis is not required for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter. See 5 U.S.C. 604.

    F. Small Business Regulatory Enforcement Fairness Act of 1996

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

    G. Unfunded Mandates Reform Act of 1995

    This rule was not preceded by a published notice of proposed rulemaking; will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year; will not significantly or uniquely affect small governments; and does not contain significant intergovernmental mandates. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1535.

    H. Paperwork Reduction Act of 1995

    This final rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. 3501-3521.

    I. Congressional Review Act

    This action pertains to agency organization, procedure, or practice, and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996). See 5 U.S.C. 804(3). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

    List of Subjects in 27 CFR Part 555

    Administrative practice and procedure, Customs duties and inspection, Explosives, Hazardous substances, Imports, Penalties, Reporting and recordkeeping requirements, Safety, Security measures, Seizures and forfeitures, Transportation, and Warehouses.

    Authority and Issuance

    Accordingly, for the reasons discussed in the preamble, 27 CFR part 555 is amended as follows:

    PART 555—COMMERCE IN EXPLOSIVES 1. The authority citation for 27 CFR part 555 continues to read as follows: Authority:

    18 U.S.C. 847.

    2. Revise the definition of “Customs officer” in § 555.11 to read as follows:
    § 555.11 Meaning of terms.

    Customs officer. Any officer of U.S. Customs and Border Protection, any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law to perform the duties of a customs officer.

    Dated: September 28, 2015. Loretta E. Lynch, Attorney General.
    [FR Doc. 2015-25190 Filed 10-1-15; 8:45 am] BILLING CODE 4410-FY-P
    DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 236 [DOD-2014-OS-0097] RIN 0790-AJ29 Department of Defense (DoD)-Defense Industrial Base (DIB) Cybersecurity (CS) Activities AGENCY:

    Office of the DoD Chief Information Officer, DoD.

    ACTION:

    Interim final rule.

    SUMMARY:

    DoD is revising its DoD-DIB Cybersecurity (CS) Activities regulation to mandate reporting of cyber incidents that result in an actual or potentially adverse effect on a covered contractor information system or covered defense information residing therein, or on a contractor's ability to provide operationally critical support, and modify eligibility criteria to permit greater participation in the voluntary DoD-Defense Industrial Base (DIB) Cybersecurity (CS) information sharing program.

    DATES:

    Effective Date: This rule if effective October 2, 2015. Comments must be received by December 1, 2015.

    ADDRESSES:

    You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:

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

    • Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.

    FOR FURTHER INFORMATION CONTACT:

    DoD-DIB Cybersecurity Activities Office: (703) 604-3167, toll free (855) 363-4227.

    SUPPLEMENTARY INFORMATION: Executive Summary

    This rule revises the DoD-DIB cybersecurity information sharing program regulation to implement new statutory requirements for DoD contractors and subcontractors to report cyber incidents that result in an actual or potentially adverse effect on a covered contractor information system or covered defense information residing therein, or on a contractor's ability to provide operationally critical support. The program also retains the voluntary information sharing activities for cybersecurity information that is outside the scope of the mandatory reporting requirements.

    Regarding the mandatory reporting, this part has been revised to set forth mandatory cyber incident reporting requirements that will apply to all forms of contracts or other agreements between DoD and DIB companies (e.g., procurement contracts, cooperative agreements, other transaction agreements). Thus, all relevant contracts or agreements are required to include these cyber reporting requirements (e.g., through incorporation of the reporting requirements by reference, or by expressly setting forth reporting requirements consistent with this part). The revisions provided in this rule are part of DoD's efforts to establish a single reporting mechanism for such cyber incidents on unclassified DoD contractor information systems. These requirements are focused on cyber incidents that threaten specific types of DoD program information, such as technical information controlled under the International Traffic in Arms Regulations or the Export Administration Regulations or otherwise controlled by DOD and operational security information that relates to DoD activities. Additional cyber incident reporting requirements for other important types of controlled unclassified information (CUI) (e.g., personally identifiable information (PII), budget or financial information) are more specifically addressed through other regulatory mechanisms, and thus are outside the scope of this rule. To clarify this distinction, the rule explicitly states that reporting under this program does not abrogate the contractor's responsibility for any other applicable cyber incident reporting requirements (§ 236.4(o)).

    The rule also revises the program's definitions to better harmonize with definitions that are already established and used by DoD and other Government agencies in similar contexts, such as those relating to the handling and safeguarding of Controlled Unclassified Information as used by the National Archives and Records Administration pursuant to Executive Order 13556 “Controlled Unclassified Information” (November 4, 2010) (see http://www.archives.gov/cui/), and those widely used in the context of cybersecurity activities (see the Committee on National Security Systems Instruction No. 4009, “National Information Assurance Glossary”).

    This rule is intended to streamline the reporting process for DoD contractors and minimize duplicative reporting processes, while preserving distinctions where appropriate. Cyber incident reporting involving classified information on classified contractor systems will be in accordance with the National Industrial Security Program Operating Manual (DoD-M 5220.22 (http://www.dtic.mil/whs/directives/corres/pdf/522022m.pdf)).

    This rule also modifies eligibility criteria to permit greater participation in the voluntary DoD-DIB CS information sharing program. Expanding participation in the DoD-DIB CS information sharing program is part of DoD's comprehensive approach to counter cyber threats through information sharing between the Government and DIB participants. The DoD-DIB CS information sharing program allows eligible DIB participants to receive Government furnished information (GFI) and cyber threat information from other DIB participants, thereby providing greater insights into adversarial activity targeting the DIB. The activities in this rule implement DoD statutory authorities to establish programs and activities to protect sensitive DoD information, including when such information resides on or transits information systems operated by contractors or others in support of DoD activities (e.g., 10 U.S.C. 391 and 2224, the Federal Information Security Modernization Act (FISMA), codified at 44 U.S.C. 3551 et seq., section 941 of the NDAA for FY 2013 (Public Law 112-239)). Activities under this rule also fulfill important elements of DoD's critical infrastructure protection responsibilities, as the sector specific agency for the DIB sector (see Presidential Policy Directive 21 (PPD-21), “Critical Infrastructure Security and Resilience,” available at https://www.whitehouse.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil).

    Under this rule, contractors will incur costs associated with requirements for reporting cyber incidents of covered defense information on their covered contractor information system(s) or those affecting the contractor's ability to provide operationally critical support. Costs for contractors include identifying and analyzing cyber incidents and their impact on covered defense information, or a contractor's ability to provide operationally critical support, as well as obtaining DoD-approved medium assurance certificates to ensure authentication and identification when reporting cyber incidents to DoD. Government costs include onboarding new companies under the voluntary DoD-DIB CS information sharing program, and collecting and analyzing cyber incident reports, malicious software, and media.

    A foundational element of these new mandatory reporting requirements, as well as the voluntary DoD-DIB CS information sharing activities, is the recognition that the information being shared between the parties includes extremely sensitive information that requires protection. For additional information regarding the Government's safeguarding of information received from the contractors that require protection, see the Privacy Impact Assessment (PIA) for the DIB Cybersecurity/Information Assurance Activities located at http://dodcio.defense.gov/Portals/0/Documents/DIB%20CS-IA%20PIA_FINAL_signed_30jun2011_VMSS_GGMR_RC.pdf. The PIA provides detailed procedures for handling personally identifiable information (PII), attributional information about the strengths or vulnerabilities of specific covered contractor information systems, information providing a perceived or real competitive advantage on future procurement action, and contractor information marked as proprietary or commercial or financial information.

    Interim Final Rule Justification

    This rule is being published as an interim rule in order to comply with statutory guidance under Section 941 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013, and section 391 of Title 10, United States Code (U.S.C.), requiring defense contractors to rapidly report cyber incidents on their unclassified networks or information systems that may affect unclassified defense information, or that affect their ability to provide operationally critical support to the Department. Issuing this rule as an interim final rule underscores the importance of better protecting unclassified defense information against the immediate cyber threat, while preserving the intellectual property and competitive capabilities of our national defense industrial base. The interim final rule enables DoD to better assess, in the near term, when mission critical capabilities and services are affected by cyber incidents and reinforces DoD's overall efforts to defend DoD information, protect U.S. national interests against cyber-attacks, and support military operations and contingency plans worldwide. Cybersecurity is a Congressional priority and this interim final rule supports the Administration's national cybersecurity strategy emphasizing public-private information sharing.

    Regulatory Procedures Executive Orders 12866, “Regulatory Planning and Review” and 13563, “Improving Regulation and Regulatory Review”

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

    Public Law 104-121, “Congressional Review Act” (5 U.S.C. 801)

    It has been determined that this rule is not a “major” rule under 5 U.S.C. 801, enacted by Public Law 104-121, because it will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local Government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

    Sec. 202, Public Law 104-4, “Unfunded Mandates Reform Act”

    It has been determined that this rule does not contain a Federal mandate that may result in expenditure by State, local and tribal Governments, in aggregate, or by the private sector, of $100 million or more in any one year.

    Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

    It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

    Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

    It has been determined that 32 CFR part 236 does contain reporting or recordkeeping requirements under the Paper Reduction Act (PRA) of 1995. These reporting requirements apply existing collection approvals under Office of Management and Budget (OMB) Control Numbers: 0704-0489, “Defense Industrial Base Cyber Security/Information Assurance (DIB CS/IA) Cyber Incident Reporting,” and 0704-0490, “Defense Industrial Base Cyber Security/Information Assurance (DIB CS/IA) Points of Contact (POC) Information.”

    DoD has submitted a revision for the 0704-0489 collection to OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35) in response to 32 CFR part 236 expanding the number of companies under mandatory cyber incident reporting requirements. Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.

    Title: Cyber Incident Reporting by DoD Contractors

    Type of Request: Revision.

    Number of DoD contractors impacted is 10,000.

    Projected Responses Per Participant Per Year: 5.

    Annual Total Responses: Up to 50,000.

    Average Burden Per Response: 7 hours (this includes searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information).

    Annual Total Burden Hours: 250,000 hours for all participants.

    Needs and Uses: The requested information supports the mandatory cyber incident reporting requirements under Section 941 of the NDAA for Fiscal Year (FY) 13 and Section 1632 of the NDAA for FY 15, and facilitates cyber situational awareness and cyber threat information sharing. DoD contractors report incidents using the standard Incident Collection Format (ICF). The primary means of reporting is through a secure unclassified web portal, but a company may report incidents through other communication means if necessary.

    Affected Public: DoD contractors with the provisions of 32 CFR part 236 in their agreements with DoD.

    Frequency: On occasion.

    Respondent's Obligation: Mandatory.

    DoD has submitted a revision for the 0704-0490 collection to OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35) in response to 32 CFR part 236 expanding the number of companies eligible to participate in the voluntary DIB CS information sharing program. Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.

    Title: Defense Industrial Base Cybersecurity Activities Points of Contact (POC) Information.

    Type of Request: Revision.

    Number of DoD contractors impacted is 8,500. DoD estimates that no more than 10% of the total eligible population of cleared defense contractors will apply to the voluntary DIB Cybersecurity Activities program resulting in 850 cleared defense contractors impacted annually. An additional 10% of the population or 85 contractors may provide updated points of contact for the program, as required.

    Projected Responses Per Participant: Initial collection is one per company with updates on a case-by-case basis.

    Annual Total Responses: 935.

    Average Burden Per Response: 20 minutes.

    Annual Total Burden Hours: 312 hours for all participants.

    Needs and Uses: The Government will collect business points of contact (POC) information from all Defense Industrial Base (DIB) Cybersecurity program participants on a one-time basis, with updates as necessary, to facilitate communications and the sharing of share unclassified and classified cyber threat information.

    Affected Public: Business or other for-profit and not-for-profit institutions.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary.

    OMB Desk Officer:

    Written comments and recommendations on these information collections should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, DoD Desk Officer, Room 10102, New Executive Office Building, Washington, DC 20503, with a copy to the Director, DoD-DIB Cybersecurity Activities Office, at the Office of the DoD Chief Information Officer, 6000 Defense Pentagon, Attn: DIB CS Activities Office, Washington, DC 20301-6000, or email at [email protected].

    You may also submit comments, identified by docket number and title, by the following method:

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

    All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    Executive Order 13132, “Federalism”

    It has been determined that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

    (a) The States;

    (b) The relationship between the National Government and the States; or

    (c) The distribution of power and responsibilities among the various levels of Government.

    List of Subjects in 32 CFR Part 236

    Government contracts, Security measures.

    Accordingly, 32 CFR part 236 is revised to read as follows:

    PART 236—DEPARTMENT OF DEFENSE (DoD)-DEFENSE INDUSTRIAL BASE (DIB) CYBERSECURITY (CS) ACTIVITIES Sec. 236.1 Purpose. 236.2 Definitions. 236.3 Policy. 236.4 Mandatory cyber incident reporting procedures. 236.5 DoD-DIB CS information sharing program. 236.6 General provisions of the DoD-DIB CS information sharing program. 236.7 DoD-DIB CS information sharing program requirements. Authority:

    10 U.S.C. 391; 10 U.S.C. 2224; 44 U.S.C. 3506; 44 U.S.C. 3544; and Section 941, Publ. L. 112-239, 126 Stat. 1632.

    §236.1 Purpose.

    Cyber threats to contractor unclassified information systems represent an unacceptable risk of compromise of DoD information and pose an imminent threat to U.S. national security and economic security interests. This part requires all DoD contractors to rapidly report cyber incidents involving covered defense information on their covered contractor information systems or cyber incidents affecting the contractor's ability to provide operationally critical support. The part also modifies the eligibility criteria to permit greater participation in the voluntary DoD-DIB CS information sharing program in which DoD provides cyber threat information and cybersecurity best practices to DIB participants. The DoD-DIB CS information sharing program enhances and supplements DIB participants' capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems.

    §236.2 Definitions.

    As used in this part:

    Access to media means provision of media, or access to media physically or remotely to DoD personnel, as determined by the contractor.

    Cleared defense contractor (CDC) means a private entity granted clearance by DoD to access, receive, or store classified information for the purpose of bidding for a contract or conducting activities in support of any program of DoD.

    Compromise means disclosure of information to unauthorized persons, or a violation of the security policy of a system, in which unauthorized intentional or unintentional disclosure, modification, destruction, or loss of an object, or the copying of information to unauthorized media may have occurred.

    Contractor means an individual or organization outside the U.S. Government who has accepted any type of agreement or order to provide research, supplies, or services to DoD, including prime contractors and subcontractors.

    Contractor attributional/proprietary information means information that identifies the contractor(s), whether directly or indirectly, by the grouping of information that can be traced back to the contractor(s) (e.g., program description, facility locations), personally identifiable information, as well as trade secrets, commercial or financial information, or other commercially sensitive information that is not customarily shared outside of the company.

    Controlled Technical Information means technical information with military or space application that is subject to controls on the access, use, reproduction, modification, performance, display, release, disclosure, or dissemination. Controlled technical information would meet the criteria, if disseminated, for distribution statements B through F using the criteria set forth in DoD Instruction 5230.24, “Distribution Statements of Technical Documents,” available at http://www.dtic.mil/whs/directives/corres/pdf/523024p.pdf. The term does not include information that is lawfully publicly available without restrictions.

    Covered contractor information system means an information system that is owned or operated by or for a contractor and that processes, stores, or transmits covered defense information.

    Covered defense information means unclassified information that:

    (1) Is:

    (i) Provided to the contractor by or on behalf of the DoD in connection with the performance of a contract; or

    (ii) Collected, developed, received, transmitted, used, or stored by or on behalf of the contractor in support of the performance of a contract; and

    (2) Falls in any of the following categories:

    (i) Controlled Technical Information;

    (ii) Critical information (operations security). Specific facts identified through the Operations Security process about friendly intentions, capabilities, and activities vitally needed by adversaries for them to plan and act effectively so as to guarantee failure or unacceptable consequences for friendly mission accomplishment (part of Operations Security process);

    (iii) Export Control. Unclassified information concerning certain items, commodities, technology, software, or other information whose export could reasonably be expected to adversely affect the United States national security and nonproliferation objectives. To include dual use items; items identified in export administration regulations, international traffic in arms regulations and munitions list; license applications; and sensitive nuclear technology information;

    (iv) Any other information, marked or otherwise identified by the Government, that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government-wide policies (e.g., privacy, proprietary business information).

    Cyber incident means actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein.

    Cyber incident damage assessment means a managed, coordinated process to determine the effect on defense programs, defense scientific and research projects, or defense warfighting capabilities resulting from compromise of a contractor's unclassified computer system or network.

    Defense Industrial Base (DIB) means the Department of Defense, Government, and private sector worldwide industrial complex with capabilities to perform research and development, design, produce, and maintain military weapon systems, subsystems, components, or parts to satisfy military requirements.

    DIB participant means a CDC that has met all of the eligibility requirements to participate in the voluntary DoD-DIB CS Information Sharing Program as set forth in this part (see § 236.7).

    Forensic analysis means the practice of gathering, retaining, and analyzing computer-related data for investigative purposes in a manner that maintains the integrity of the data.

    Government furnished information (GFI) means information provided by the Government under the voluntary DoD-DIB CS information sharing program including but not limited to cyber threat information and cybersecurity practices.

    Information means any communication or representation of knowledge such as facts, data, or opinions in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual.

    Information system means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

    Malicious software means software or firmware intended to perform an unauthorized process that will have adverse impact on the confidentiality, integrity, or availability of an information system. This definition includes a virus, worm, Trojan horse, or other code-based entity that infects a host, as well as spyware and some forms of adware.

    Media means physical devices or writing surfaces, including but not limited to, magnetic tapes, optical disks, magnetic disks, large-scale integration memory chips, and printouts onto which covered defense information is recorded, stored, or printed within a covered Contractor information system.

    Operationally critical support means supplies or services designated by the Government as critical for airlift, sealift, intermodal transportation services, or logistical support that is essential to the mobilization, deployment, or sustainment of the Armed Forces in a contingency operation.

    Rapid(ly) report(ing) means within 72 hours of discovery of any cyber incident.

    Technical Information means technical data or computer software, as those terms are defined in DFARS 252.227-7013, “Rights in Technical Data—Noncommercial Items” (48 CFR 252.227-7013). Examples of technical information include research and engineering data, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, technical orders, catalog-item identifications, data sets, studies and analyses and related information, and computer software executable code and source code.

    Threat means any circumstance or event with the potential to adversely impact organization operations (including mission, functions, image, or reputation), organization assets, individuals, other organizations, or the Nation through an information system via unauthorized access, destruction, disclosure, modification of information and/or denial of service.

    U.S. based means provisioned, maintained, or operated within the physical boundaries of the United States.

    U.S. citizen means a person born in the United States or naturalized.

    §236.3 Policy.

    It is DoD policy to:

    (a) Establish a comprehensive approach to require safeguarding of covered defense information on covered contractor information systems and to require contractor cyber incident reporting.

    (b) Increase Government stakeholder and DIB situational awareness of the extent and severity of cyber threats to DoD information by implementing a streamlined approval process that enables the contractor to elect, in conjunction with the cyber incident reporting and sharing, the extent to which DoD may share cyber threat information obtained from a contractor (or derived from information obtained from the company) under this part that is not information created by or for DoD with:

    (1) DIB contractors participating in the DoD-DIB CS information sharing program to enhance their cybersecurity posture to better protect covered defense information on covered contractor information systems, or a contractor's ability to provide operationally critical support; and

    (2) Other Government stakeholders for lawful Government activities, including cybersecurity for the protection of Government information or information systems, law enforcement and counterintelligence (LE/CI), and other lawful national security activities directed against the cyber threat (e.g., those attempting to infiltrate and compromise information on the contractor information systems).

    (c) Modify eligibility criteria to permit greater participation in the voluntary DoD-DIB CS information sharing program.

    § 236.4 Mandatory cyber incident reporting procedures.

    (a) Applicability and order of precedence. The requirement to report cyber incidents shall be included in all applicable agreements between the Government and the contractor in which covered defense information resides on, or transits covered contractor information systems or under which a contractor provides operationally critical support, and shall be identical to those requirements provided in this section (e.g., by incorporating the requirements of this section by reference, or by expressly setting forth such reporting requirements consistent with those of this section). Any inconsistency between the relevant terms and condition of any such agreement and this section shall be resolved in favor of the terms and conditions of the agreement, provided and to the extent that such terms and conditions are authorized to have been included in the agreement in accordance with applicable laws and regulations.

    (b) Cyber incident reporting requirement. When a contractor discovers a cyber incident that affects a covered contractor information system or the covered defense information residing therein or that affects the contractor's ability to provide operationally critical support, the contractor shall:

    (1) Conduct a review for evidence of compromise of covered defense information including, but not limited to, identifying compromised computers, servers, specific data, and user accounts. This review shall also include analyzing covered contractor information system(s) that were part of the cyber incident, as well as other information systems on the contractor's network(s), that may have been accessed as a result of the incident in order to identify compromised covered defense information, or that affect the contractor's ability to provide operationally critical support; and

    (2) Rapidly report cyber incidents to DoD at http://dibnet.dod.mil.

    (c) Cyber incident report. The cyber incident report shall be treated as information created by or for DoD and shall include, at a minimum, the required elements at http://dibnet.dod.mil.

    (d) Subcontractor reporting procedures. Contractors shall flow down the cyber incident reporting requirements of this part to their subcontractors, as appropriate. Contractors shall require subcontractors to rapidly report cyber incidents directly to DoD at http://dibnet.dod.mil and the prime contractor. This includes providing the incident report number, automatically assigned by DoD, to the prime contractor (or next higher-tier subcontractor) as soon as practicable.

    (e) Medium assurance certificate requirement. In order to report cyber incidents in accordance with this part, the contractor or subcontractor shall have or acquire a DoD-approved medium assurance certificate to report cyber incidents. For information on obtaining a DoD-approved medium assurance certificate, see http://iase.disa.mil/pki/eca/certificate.html.

    (f) If the contractor utilizes a third-party service provider (SP) for information system security services, the SP may report cyber incidents on behalf of the contractor.

    (g) Contractors are encouraged to report information to promote sharing of cyber threat indicators that they believe are valuable in alerting the Government and others, as appropriate in order to better counter threat actor activity. Cyber incidents that are not compromises of covered defense information or do not adversely affect the contractor's ability to perform operationally critical support may be of interest to the DIB and DoD for situational awareness purposes.

    (h) Malicious software. Malicious software discovered and isolated by the contractor will be submitted to the DoD Cyber Crime Center (DC3) for forensic analysis.

    (i) Media preservation and protection. When a contractor discovers a cyber incident has occurred, the contractor shall preserve and protect images of known affected information systems identified in paragraph (b) of this section and all relevant monitoring/packet capture data for at least 90 days from submission of the cyber incident report to allow DoD to request the media or decline interest.

    (j) Access to additional information or equipment necessary for forensics analysis. Upon request by DoD, the contractor shall provide DoD with access to additional information or equipment that is necessary to conduct a forensic analysis.

    (k) Cyber incident damage assessment activities. If DoD elects to conduct a damage assessment, DoD will request that the contractor provide all of the damage assessment information gathered in accordance with paragraph (e) of this section.

    (l) DoD safeguarding and use of contractor attributional/proprietary information. The Government shall protect against the unauthorized use or release of information obtained from the contractor (or derived from information obtained from the contractor) under this part that includes contractor attributional/proprietary information, including such information submitted in accordance with paragraph (b) of this section. To the maximum extent practicable, the contractor shall identify and mark attributional/proprietary information. In making an authorized release of such information, the Government will implement appropriate procedures to minimize the contractor attributional/proprietary information that is included in such authorized release, seeking to include only that information that is necessary for the authorized purpose(s) for which the information is being released.

    (m) Use and release of contractor attributional/proprietary information not created by or for DoD. Information that is obtained from the contractor (or derived from information obtained from the contractor) under this part that is not created by or for DoD is authorized to be released outside of DoD:

    (1) To entities with missions that may be affected by such information;

    (2) To entities that may be called upon to assist in the diagnosis, detection, or mitigation of cyber incidents;

    (3) To Government entities that conduct LE/CI investigations;

    (4) For national security purposes, including cyber situational awareness and defense purposes (including sharing with DIB contractors participating in the DIB CS program authorized by this part); or

    (5) To a support services contractor (“recipient”) that is directly supporting Government activities related to this part and is bound by use and non-disclosure restrictions that include all of the following conditions:

    (i) The recipient shall access and use the information only for the purpose of furnishing advice or technical assistance directly to the Government in support of the Government's activities related to this part, and shall not be used for any other purpose;

    (ii) The recipient shall protect the information against unauthorized release or disclosure;

    (iii) The recipient shall ensure that its employees are subject to use and non-disclosure obligations consistent with this part prior to the employees being provided access to or use of the information;

    (iv) The third-party contractor that reported the cyber incident is a third-party beneficiary of the non-disclosure agreement between the Government and the recipient, as required by paragraph (m)(5)(iii) of this section;

    (v) That a breach of these obligations or restrictions may subject the recipient to:

    (A) Criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and

    (B) Civil actions for damages and other appropriate remedies by the third party that reported the incident, as a third party beneficiary of the non-disclosure agreement.

    (6) Use and release of contractor attributional/proprietary information created by or for DoD. Information that is obtained from the contractor (or derived from information obtained from the contractor) under this part that is created by or for DoD (including the information submitted pursuant to paragraph (b) of this section) is authorized to be used and released outside of DoD for purposes and activities authorized by this section, and for any other lawful Government purpose or activity, subject to all applicable statutory, regulatory, and policy based restrictions on the Government's use and release of such information.

    (n) Contractors shall conduct their respective activities under this part in accordance with applicable laws and regulations on the interception, monitoring, access, use, and disclosure of electronic communications and data.

    (o) Freedom of Information Act (FOIA). Agency records, which may include qualifying information received from non-federal entities, are subject to request under the Freedom of Information Act (5 U.S.C. 552) (FOIA), which is implemented in the DoD by DoD Directive 5400.07 and DoD Regulation 5400.7-R (see 32 CFR parts 285 and 286, respectively). Pursuant to established procedures and applicable regulations, the Government will protect sensitive nonpublic information reported under mandatory reporting requirements against unauthorized public disclosure by asserting applicable FOIA exemptions. The Government will inform the non-Government source or submitter (e.g., contractor or DIB participant of any such information that may be subject to release in response to a FOIA request), in order to permit the source or submitter to support the withholding of such information or pursue any other available legal remedies.

    (p) Other reporting requirements. Cyber incident reporting required by this part in no way abrogates the contractor's responsibility for other cyber incident reporting pertaining to its unclassified information systems under other clauses that may apply to its contract(s), or as a result of other applicable U.S. Government statutory or regulatory requirements, including Federal or DoD requirements for Controlled Unclassified Information as established by Executive Order 13556, as well as regulations and guidance established pursuant thereto.

    § 236.5 DoD-DIB CS information sharing program.

    (a) All contractors that are CDCs and meet the requirements set forth in § 236.7 are eligible to join the voluntary DoD-DIB CS information sharing program as a DIB participant.

    (b) Under the voluntary activities of the DoD-DIB CS information sharing program, the Government and each DIB participant will execute a standardized agreement, referred to as a Framework Agreement (FA) to share, in a timely and secure manner, on a recurring basis, and to the greatest extent possible, cybersecurity information.

    (c) Each such FA between the Government and a DIB participant must comply with and implement the requirements of this part, and will include additional terms and conditions as necessary to effectively implement the voluntary information sharing activities described in this part with individual DIB participants.

    (d) The DoD-DIB CS Activities Office is the overall point of contact for the program. The DC3 managed DoD-DIB Collaborative Information Sharing Environment (DCISE) is the operational focal point for cyber threat information sharing and incident reporting under the DoD-DIB CS information sharing program.

    (e) The Government will maintain a Web site or other internet-based capability to provide potential DIB participants with information about eligibility and participation in the program, to enable online application or registration for participation, and to support the execution of necessary agreements with the Government.

    (f) GFI. The Government shall share GFI with DIB participants or designated SP in accordance with this part.

    (g) Prior to receiving GFI from the Government, each DIB participant shall provide the requisite points of contact information, to include security clearance and citizenship information, for the designated personnel within their company (e.g., typically 3-10 company designated points of contact) in order to facilitate the DoD-DIB interaction in the DoD-DIB CS information sharing program. The Government will confirm the accuracy of the information provided as a condition of that point of contact being authorized to act on behalf of the DIB participant for this program.

    (h) GFI will be issued via both unclassified and classified means. DIB participant handling and safeguarding of classified information shall be in compliance with DoD 5220.22-M, “National Industrial Security Program Operating Manual (NISPOM),” available at http://www.dss.mil/documents/odaa/nispom2006-5220.pdf. The Government shall specify transmission and distribution procedures for all GFI, and shall inform DIB participants of any revisions to previously specified transmission or procedures.

    (i) Except as authorized in this part or in writing by the Government, DIB participants may:

    (1) Use GFI only on U.S. based covered contractor information systems, or U.S. based networks or information systems used to provide operationally critical support; and

    (2) Share GFI only within their company or organization, on a need-to-know basis, with distribution restricted to U.S. citizens.

    (j) In individual cases DIB participants may request, and the Government may authorize, disclosure and use of GFI under applicable terms and conditions when the DIB participant can demonstrate that appropriate information handling and protection mechanisms are in place and has determined that it requires the ability:

    (1) To share the GFI with a non-U.S. citizen; or

    (2) To use the GFI on a non-U.S. based covered contractor information system; or

    (3) To use the GFI on a non-U.S. based network or information system in order to better protect a contractor's ability to provide operationally critical support.

    (k) DIB participants shall maintain the capability to electronically disseminate GFI within the Company in an encrypted fashion (e.g., using Secure/Multipurpose Internet Mail Extensions (S/MIME), secure socket layer (SSL), Transport Layer Security (TLS) protocol version 1.2, DoD-approved medium assurance certificates).

    (l) DIB participants shall not share GFI outside of their company or organization, regardless of personnel clearance level, except as authorized in this part or otherwise authorized in writing by the Government.

    (m) If the DIB participant utilizes a SP for information system security services, the DIB participant may share GFI with that SP under the following conditions and as authorized in writing by the Government:

    (1) The DIB participant must identify the SP to the Government and request permission to share or disclose any GFI with that SP (which may include a request that the Government share information directly with the SP on behalf of the DIB participant) solely for the authorized purposes of this program.

    (2) The SP must provide the Government with sufficient information to enable the Government to determine whether the SP is eligible to receive such information, and possesses the capability to provide appropriate protections for the GFI.

    (3) Upon approval by the Government, the SP must enter into a legally binding agreement with the DIB participant (and also an appropriate agreement with the Government in any case in which the SP will receive or share information directly with the Government on behalf of the DIB participant) under which the SP is subject to all applicable requirements of this part and of any supplemental terms and conditions in the DIB participant's FA with the Government, and which authorizes the SP to use the GFI only as authorized by the Government.

    (n) The DIB participant may not sell, lease, license, or otherwise incorporate the GFI into its products or services, except that this does not prohibit a DIB participant from being appropriately designated an SP in accordance with paragraph (m) of this section.

    § 236.6 General provisions of the DoD-DIB CS information sharing program.

    (a) Confidentiality of information that is exchanged under the DoD-DIB CS information sharing program will be protected to the maximum extent authorized by law, regulation, and policy. DoD and DIB participants each bear responsibility for their own actions under the voluntary DoD-DIB CS information sharing program.

    (b) All DIB CS participants may participate in the Department of Homeland Security's Enhanced Cybersecurity Services (ECS) program (http://www.dhs.gov/enhanced-cybersecurity-services).

    (c) Participation in the voluntary DoD-DIB CS information sharing program does not obligate the DIB participant to utilize the GFI in, or otherwise to implement any changes to, its information systems. Any action taken by the DIB participant based on the GFI or other participation in this program is taken on the DIB participant's own volition and at its own risk and expense.

    (d) A DIB participant's participation in the voluntary DoD-DIB CS information sharing program is not intended to create any unfair competitive advantage or disadvantage in DoD source selections or competitions, or to provide any other form of unfair preferential treatment, and shall not in any way be represented or interpreted as a Government endorsement or approval of the DIB participant, its information systems, or its products or services.

    (e) The DIB participant and the Government may each unilaterally limit or discontinue participation in the voluntary DoD-DIB CS information sharing program at any time. Termination shall not relieve the DIB participant or the Government from obligations to continue to protect against the unauthorized use or disclosure of GFI, attribution information, contractor proprietary information, third-party proprietary information, or any other information exchanged under this program, as required by law, regulation, contract, or the FA.

    (f) Upon termination of the FA, and/or change of Facility Security Clearance (FCL) status below Secret, GFI must be returned to the Government or destroyed pursuant to direction of, and at the discretion of, the Government.

    (g) Participation in these activities does not abrogate the Government's, or the DIB participants' rights or obligations regarding the handling, safeguarding, sharing, or reporting of information, or regarding any physical, personnel, or other security requirements, as required by law, regulation, policy, or a valid legal contractual obligation. However, participation in the voluntary activities of the DoD-DIB CS information sharing program does not eliminate the requirement for DIB participants to report cyber incidents in accordance with § 236.4.

    § 236.7 DoD-DIB CS information sharing program requirements.

    (a) To participate in the DoD-DIB CS information sharing program, a contractor must be a CDC and shall:

    (1) Have an existing active FCL granted under the NISPOM (DoD 5220.22-M); and

    (2) Execute the standardized FA with the Government (available during the application process), which implements the requirements set forth in §§ 236.5 through 236.7, and allows the CDC to select their level of participation in the voluntary DoD-DIB CS information sharing program.

    (3) In order for participating CDCs to receive classified cyber threat information electronically, they must:

    (i) Have or acquire a Communication Security (COMSEC) account in accordance with the NISPOM Chapter 9, Section 4 (DoD 5220.22-M), which provides procedures and requirements for COMSEC activities; and

    (ii) Have or acquire approved safeguarding for at least Secret information, and continue to qualify under the NISPOM for retention of its FCL and approved safeguarding; and

    (iii) Obtain access to DoD's secure voice and data transmission systems supporting the voluntary DoD-DIB CS information sharing program.

    (b) [Reserved]

    Dated: September 14, 2015. Patricia L. Toppings, OSD Federal Register, Liaison Officer, Department of Defense.
    [FR Doc. 2015-24296 Filed 10-1-15; 8:45 am] BILLING CODE 5001-06-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 380 [Docket No. 2014-CRB-0001-WR (2016-2020) (Web IV)] Digital Performance Right in Sound Recordings and Ephemeral Recordings AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    The Copyright Royalty Judges publish final regulations that set the rates and terms for the digital performances of sound recordings by certain public radio stations and for the making of ephemeral recordings necessary to facilitate those transmissions for the period commencing January 1, 2016, and ending on December 31, 2020.

    DATES:

    Effective: January 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    LaKeshia Keys, Program Specialist, by telephone at (202) 707-7658, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    The Copyright Royalty Judges (“Judges”) received a joint motion from SoundExchange, Inc. (“SoundExchange”), National Public Radio, Inc. (“NPR”) and the Corporation for Public Broadcasting (“CPB”) in which they announced a partial settlement in the above proceeding (“Settlement”) regarding royalty rates and terms for certain internet transmissions by NPR, American Public Media, Public Radio International, and certain public radio stations (“covered entities”). The parties to the agreement requested that the Judges adopt the Settlement as a determination of rates and terms under Sections 112(e) and 114 of the Copyright Act for eligible transmissions by covered entities through their Web sites and related ephemeral recordings, as more specifically set forth in the Settlement. The Judges published the proposed Settlement and requested comments from the public. 80 FR 15958 (March 26, 2015).

    Background

    Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided the settling parties submit the negotiated rates and terms to the Judges for approval. That provision directs the Judges to provide those who would be bound by the negotiated rates and terms an opportunity to comment on the agreement. Unless a participant in a proceeding objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory rates or terms, the Judges adopt the negotiated rates and terms. 17 U.S.C. 801(b)(7)(A).

    The Judges “may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement,” only “if any participant [to the proceeding] objects to the agreement and the [Judges] conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.” 17 U.S.C. 801(b)(7)(A)(ii).

    Section 801(b)(7)(A) limits the circumstances under which the Judges may decline to adopt aspects of an agreement; nevertheless it does not preclude the Judges from declining to adopt portions of an agreement that would be contrary to the provisions of the applicable license or otherwise contrary to statutory law. See Review of Copyright Royalty Judges Determination, 74 FR 4537, 4540 (Jan. 26, 2009).

    By its terms, this partial Settlement applies to “covered entities,” which are defined as NPR, American Public Media, Public Radio International, Public Radio Exchange, and up to 530 originating public radio stations as named by CPB. Proposed Regulation 380.31. Notwithstanding the royalty rates and terms set forth in the partial Settlement, copyright owners and licensees are permitted, consistent with the partial Settlement, to adopt rates and terms that would apply in lieu of those established in the partial Settlement. Proposed Regulation 380.30(c). According to the Joint Motion, “[b]ecause the Settlement applies to only a closed group of licensees, and has a single payor (CPB), the Settlement is being submitted to the Judges for adoption as a statutory rate and terms [sic] only so that it will be binding on all copyright owners and performers, including those that are not members of SoundExchange.” Joint Motion at 3.

    The Judges received one comment in response to their request for comments published in the Federal Register. In that comment, Intercollegiate Broadcasting System (“IBS”), a participant in the captioned proceeding, objected to adoption of the Settlement prior to the Judges' issuance of a determination in the proceeding, arguing that doing so would be premature, given that the proceeding is still pending.1 IBS contends that if the Judges were to adopt the partial Settlement prior to issuing a final determination in the proceeding, the application of the settled rates and terms could prejudice the other noncommercial webcasters remaining in the proceeding. Comments of IBS at 1. IBS contends that there are “few or no legal, FCC licensing, ownership, and locational differences between IBS members and NPR-CPB-qualified public radio stations and webcasters.” Id. at 4. As a result, IBS contends that differences in royalty rates between these two groups should be a function of usage and that entities purportedly represented by IBS would qualify for lower rates than those set by the Settlement. Id. at 5.

    1Comments of Intercollegiate Broadcasting System Opposing SX-NPR's Proposed Settlement (April 16, 2015).

    Notwithstanding IBS's objection, the Judges find that the partial Settlement provides a reasonable basis for setting statutory terms and rates and therefore they adopt the partial Settlement, with one exception, discussed below. The IBS position is clearly at odds with the language of Section 801(b)(7)(A), which authorizes adoption of settlements “at any time during the proceeding.” Further, the proposed Settlement pertains solely to public broadcasting entities, which are expressly excluded from the definition of “noncommercial educational webcasters” in existing regulations. See 37 CFR 380.21. To emphasize the limits of the proposed rates and terms, the settling parties proposed adoption of the Settlement as a separate Subpart, Subpart D, of the existing regulations.

    IBS's concern that some unnamed webcasters could be prejudiced by the adoption of the Settlement is speculative, unsupported by evidence, and does not, without more, challenge the validity of the Settlement in establishing a reasonable basis for setting statutory terms or rates. Without evidence to the contrary, the Judges find that the agreement reached voluntarily between the Settling Parties does in fact establish a reasonable basis for setting statutory terms and rates.

    The Judges do not adopt at this time, however, the provision in proposed § 380.31, which states: “For the 2016-2020 license period, the collective is SoundExchange, Inc.” Designation of the Collective under the statutory license is within the Judges' purview and they will make that designation in the Judges' final determination in the proceeding.2 With that exception, therefore, the Judges adopt the proposed regulations that codify the partial Settlement. In doing so, the Judges make clear that the adoption of the partial Settlement should in no way suggest that they are more or less inclined to adopt the reasoning or proposals of any of the parties remaining in the proceeding.

    2See Intercollegiate Broadcast System, Inc. v. Copyright Royalty Board, 574 F.3d 748, 771 (D.C. Cir. 2009) (“in setting the rates and terms of the statutory license, the Judges will designate a single entity to receive royalty payments,” internal quotation marks omitted, emphasis added). See also Review of Copyright Royalty Judges Determination, 74 FR 4537, 4540 (Jan. 26, 2009) (the Judges are not compelled to adopt a privately negotiated agreement to the extent it includes provisions that are inconsistent with the applicable statutory license or otherwise contrary to statutory law). The Judges adopted as proposed references to SoundExchange in the covered entities definition in proposed § 380.31; those references do not by their terms refer to SoundExchange in its capacity as the Judge-designated Collective. The Judges also left intact provisions referring to SoundExchange in its capacity as the Collective in proposed § 380.33. Those references are expressly limited to Subpart D and are qualified by the clause in proposed § 380.33(b) “[u]ntil such time as a new designation is made.” Unrelated to the Collective designation issue, the Judges also corrected a typographical error in the last sentence of proposed § 380.32 (e) by adding the words “of the” between the words “remainder Term.” The Judges adopted all other provisions of the Settlement as proposed.

    List of Subjects in 37 CFR Part 380

    Copyright, Digital audio transmissions, Performance right, Sound recordings.

    Final Regulation

    For the reasons set forth in the preamble, the Copyright Royalty Judges amend 37 CFR part 380 as follows:

    PART 380—RATES AND TERMS FOR CERTAIN ELIGIBLE NON-SUBSCRIPTION TRANSMISSIONS, NEW SUBSCRIPTION SERVICES AND THE MAKING OF EPHEMERAL REPRODUCTIONS 1. The authority citation for part 380 continues to read as follows: Authority:

    17 U.S.C. 112(e), 114(f), 804(b)(3).

    2. Add subpart D to read as follows: Subpart D—Certain Transmissions by Public Broadcasting Entities Sec. 380.30 General. 380.31 Definitions. 380.32 Royalty fees for the public performance of sound recordings and for ephemeral recordings. 380.33 Terms for making payment of royalty fees and statements of account. 380.34 Confidential Information. 380.35 Verification of royalty payments. 380.36 Verification of royalty distributions. 380.37 Unclaimed funds. Subpart D—Certain Transmissions by Public Broadcasting Entities
    § 380.30 General.

    (a) Scope. This subpart establishes rates and terms of royalty payments for the public performance of sound recordings in certain digital transmissions, through Authorized Web sites, by means of Web site Performances, by certain Covered Entities as set forth in this subpart in accordance with the provisions of 17 U.S.C. 114, and the making of Ephemeral Recordings by Covered Entities in accordance with the provisions of 17 U.S.C. 112(e) solely as necessary to encode Sound Recordings in different formats and at different bit rates as necessary to facilitate Web site Performances, during the period January 1, 2016, through December 31, 2020. The provisions of this subpart shall apply to the Covered Entities in lieu of other rates and terms applicable under 17 U.S.C. 112(e) and 114.

    (b) Legal compliance. Licensees relying upon the statutory licenses set forth in 17 U.S.C. 112(e) and 114 shall comply with the requirements of those sections, the rates and terms of this subpart, and any other applicable regulations.

    (c) Relationship to voluntary agreements. Notwithstanding the royalty rates and terms established in this subpart, the rates and terms of any license agreements entered into by Copyright Owners and Licensees shall apply in lieu of the rates and terms of this subpart to transmission within the scope of such agreements.

    § 380.31 Definitions.

    For purposes of this subpart, the following definitions shall apply:

    Aggregate Tuning Hours (ATH) means the total hours of programming that Covered Entities have transmitted during the relevant period to all listeners within the United States from all Covered Entities that provide audio programming consisting, in whole or in part, of Web site Performances, less the actual running time of any sound recordings for which the Covered Entity has obtained direct licenses apart from this Agreement. By way of example, if a Covered Entity transmitted one hour of programming to ten (10) simultaneous listeners, the Covered Entity's Aggregate Tuning Hours would equal ten (10). If three (3) minutes of that hour consisted of transmission of a directly licensed recording, the Covered Entity's Aggregate Tuning Hours would equal nine (9) hours and thirty (30) minutes. As an additional example, if one listener listened to a Covered Entity for ten (10) hours (and none of the recordings transmitted during that time was directly licensed), the Covered Entity's Aggregate Tuning Hours would equal 10.

    Authorized Web site is any Web site operated by or on behalf of any Covered Entity that is accessed by Web site Users through a Uniform Resource Locator (“URL”) owned by such Covered Entity and through which Web site Performances are made by such Covered Entity.

    CPB is the Corporation for Public Broadcasting.

    Collective is the collection and distribution organization that is designated by the Copyright Royalty Judges.

    Copyright Owners are Sound Recording copyright owners who are entitled to royalty payments made under this subpart pursuant to the statutory licenses under 17 U.S.C. 112(e) and 114(f).

    Covered Entities are NPR, American Public Media, Public Radio International, and Public Radio Exchange, and up to 530 Originating Public Radio Stations as named by CPB. CPB shall notify SoundExchange annually of the eligible Originating Public Radio Stations to be considered Covered Entities hereunder (subject to the numerical limitations set forth herein). The number of Originating Public Radio Stations treated hereunder as Covered Entities shall not exceed 530 for a given year without SoundExchange's express written approval, except that CPB shall have the option to increase the number of Originating Public Radio Stations that may be considered Covered Entities as provided in section 380.32(c).

    Ephemeral Phonorecords are Phonorecords of all or any portion of any Sound Recordings; provided that:

    (1) Such Phonorecords are limited solely to those necessary to encode Sound Recordings in different formats and at different bit rates as necessary to facilitate Web site Performances covered by this subpart;

    (2) Such Phonorecords are made in strict conformity with the provisions set forth in 17 U.S.C. 112(e)(1)(A)-(D); and

    (3) The Covered Entities comply with 17 U.S.C. 112(a) and (e) and all of the terms and conditions of this Agreement.

    Music ATH is ATH of Web site Performances of Sound Recordings of musical works.

    NPR is National Public Radio, Inc.

    Originating Public Radio Station is a noncommercial terrestrial radio broadcast station that—

    (1) Is licensed as such by the Federal Communications Commission;

    (2) Originates programming and is not solely a repeater station;

    (3) Is a member or affiliate of NPR, American Public Media, Public Radio International, or Public Radio Exchange, a member of the National Federation of Community Broadcasters, or another public radio station that is qualified to receive funding from CPB pursuant to its criteria;

    (4) Qualifies as a “noncommercial webcaster” under 17 U.S.C. 114(f)(5)(E)(i); and

    (5) Either—

    (i) Offers Web site Performances only as part of the mission that entitles it to be exempt from taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. 501); or

    (ii) In the case of a governmental entity (including a Native American Tribal governmental entity), is operated exclusively for public purposes.

    Performers means the independent administrators identified in 17 U.S.C. 114(g)(2)(B) and (C) and the individuals and entities identified in 17 U.S.C. 114(g)(2)(D).

    Person is a natural person, a corporation, a limited liability company, a partnership, a trust, a joint venture, any governmental authority or any other entity or organization.

    Phonorecords have the meaning set forth in 17 U.S.C. 101.

    Qualified Auditor is a Certified Public Accountant, or a person, who by virtue of education or experience, is appropriately qualified to perform an audit to verify royalty payments related to performances of sound recordings.

    Side Channel is any Internet-only program available on an Authorized Web site or an archived program on such Authorized Web site that, in either case, conforms to all applicable requirements under 17 U.S.C. 114.

    Sound Recording has the meaning set forth in 17 U.S.C. 101.

    Term is the period January 1, 2016, through December 31, 2020.

    Web site is a site located on the World Wide Web that can be located by a Web site User through a principal URL.

    Web site Performances are all public performances by means of digital audio transmissions of Sound Recordings, including the transmission of any portion of any Sound Recording, made through an Authorized Web site in accordance with all requirements of 17 U.S.C. 114, from servers used by a Covered Entity (provided that the Covered Entity controls the content of all materials transmitted by the server), or by a contractor authorized pursuant to Section 380.32(f), that consist of either the retransmission of a Covered Entity's over-the-air terrestrial radio programming or the digital transmission of nonsubscription Side Channels that are programmed and controlled by the Covered Entity. This term does not include digital audio transmissions made by any other means.

    Web site Users are all those who access or receive Web site Performances or who access any Authorized Web site.

    § 380.32 Royalty fees for the public performance of sound recordings and for ephemeral recordings.

    (a) Royalty rates. The total license fee for all Web site Performances by Covered Entities during the Term, up to a total Music ATH of 285,132,065 per calendar year, and Ephemeral Phonorecords made by Covered Entities solely to facilitate such Web site Performances, during the Term shall be $2,800,000 (the “License Fee”), unless additional payments are required as described in paragraph (c) of this section.

    (b) Calculation of License Fee. It is understood that the License Fee includes:

    (1) An annual minimum fee of $500 for each Covered Entity for each year during the Term;

    (2) Additional usage fees for certain Covered Entities; and

    (3) A discount that reflects the administrative convenience to the Collective of receiving annual lump sum payments that cover a large number of separate entities, as well as the protection from bad debt that arises from being paid in advance.

    (c) Increase in Covered Entities. If the total number of Originating Public Radio Stations that wish to make Web site Performances in any calendar year exceeds the number of such Originating Public Radio Stations considered Covered Entities in the relevant year, and the excess Originating Public Radio Stations do not wish to pay royalties for such Web site Performances apart from this subpart, CPB may elect by written notice to the Collective to increase the number of Originating Public Radio Stations considered Covered Entities in the relevant year effective as of the date of the notice. To the extent of any such elections, CPB shall make an additional payment to the Collective for each calendar year or part thereof it elects to have an additional Originating Public Radio Station considered a Covered Entity, in the amount of $500 per Originating Public Radio Station per year. Such payment shall accompany the notice electing to have an additional Originating Public Radio Station considered a Covered Entity.

    (d) Ephemeral recordings. The royalty payable under 17 U.S.C. 112(e) for the making of all Ephemeral Recordings used by Covered Entities solely to facilitate Web site Performances for which royalties are paid pursuant to this subpart shall be included within, and constitute 5% of, the total royalties payable under 17 U.S.C. 112(e) and 114.

    (e) Effect of non-performance by any Covered Entity. In the event that any Covered Entity violates any of the material provisions of 17 U.S.C. 112(e) or 114 or this subpart that it is required to perform, the remedies of the Collective shall be specific to that Covered Entity only, and shall include, without limitation, termination of that Covered Entity's right to be treated as a Covered Entity hereunder upon written notice to CPB. The Collective and Copyright Owners also shall have whatever rights may be available to them against that Covered Entity under applicable law. The Collective's remedies for such a breach or failure by an individual Covered Entity shall not include termination of the rights of other Covered Entities to be treated as Covered Entities hereunder, except that if CPB fails to pay the License Fee or otherwise fails to perform any of the material provisions of this subpart, or such a breach or failure by a Covered Entity results from CPB's inducement, and CPB does not cure such breach or failure within 30 days after receiving notice thereof from the Collective, then the Collective may terminate the right of all Covered Entities to be treated as Covered Entities hereunder upon written notice to CPB. In such a case, a prorated portion of the License Fee for the remainder of the Term (to the extent paid by CPB) shall, after deduction of any damages payable to the Collective by virtue of the breach or failure, be credited to statutory royalty obligations of Covered Entities to the Collective for the Term as specified by CPB.

    (f) Use of contractors. The right to rely on this subpart is limited to Covered Entities, except that a Covered Entity may employ the services of a third Person to provide the technical services and equipment necessary to deliver Web site Performances on behalf of such Covered Entity, but only through an Authorized Web site. Any agreement between a Covered Entity and any third Person for such services shall:

    (1) Obligate such third Person to provide all such services in accordance with all applicable provisions of the statutory licenses and this subpart;

    (2) Specify that such third Person shall have no right to make Web site Performances or any other performances or Phonorecords on its own behalf or on behalf of any Person or entity other than a Covered Entity through the Covered Entity's Authorized Web site by virtue of its services for the Covered Entity, including in the case of Phonorecords, pre-encoding or otherwise establishing a library of Sound Recordings that it offers to a Covered Entity or others for purposes of making performances, but instead must obtain all necessary licenses from the Collective, the copyright owner or another duly authorized Person, as the case may be;

    (3) Specify that such third Person shall have no right to grant any sublicenses under the statutory licenses; and

    (4) Provide that the Collective is an intended third-party beneficiary of all such obligations with the right to enforce a breach thereof against such third Person.

    § 380.33 Terms for making payment of royalty fees and statements of account.

    (a) Payment to the Collective. CPB shall pay the License Fee to the Collective in five equal installments of $560,000 each, which shall be due December 31, 2015, and annually thereafter through December 31, 2019.

    (b) Designation of the Collective. (1) Until such time as a new designation is made, SoundExchange, Inc., is designated as the Collective to receive statements of account and royalty payments for Covered Entities under this subpart and to distribute such royalty payments to each Copyright Owner and Performer, or their designated agents, entitled to receive royalties under 17 U.S.C. 112(e) or 114(g).

    (2) If SoundExchange, Inc. should dissolve or cease to be governed by a board consisting of equal numbers of representatives of Copyright Owners and Performers, then it shall be replaced by a successor Collective upon the fulfillment of the requirements set forth in paragraph (b)(2)(i) of this section.

    (i) By a majority vote of the nine Copyright Owner representatives and the nine Performer representatives on the SoundExchange board as of the last day preceding the condition precedent in this paragraph (b)(2), such representatives shall file a petition with the Copyright Royalty Judges designating a successor to collect and distribute royalty payments to Copyright Owners and Performers entitled to receive royalties under 17 U.S.C. 112(e) or 114(g) that have themselves authorized the Collective.

    (ii) The Copyright Royalty Judges shall publish in the Federal Register within 30 days of receipt of a petition filed under paragraph (b)(2)(i) of this section an order designating the Collective named in such petition.

    (c) Reporting. CPB and Covered Entities shall submit reports of use and other information concerning Web site Performances as agreed upon with the Collective.

    (d) Late payments and statements of account. A Licensee shall pay a late fee of 1.5% per month, or the highest lawful rate, whichever is lower, for any payment and/or statement of account received by the Collective after the due date. Late fees shall accrue from the due date until payment and the related statement of account are received by the Collective.

    (e) Distribution of royalties. (1) The Collective shall promptly distribute royalties received from CPB to Copyright Owners and Performers, or their designated agents, that are entitled to such royalties. The Collective shall only be responsible for making distributions to those Copyright Owners, Performers, or their designated agents who provide the Collective with such information as is necessary to identify the correct recipient. The Collective shall distribute royalties on a basis that values all Web site Performances by Covered Entities equally based upon the reporting information provided by CPB/NPR.

    (2) If the Collective is unable to locate a Copyright Owner or Performer entitled to a distribution of royalties under paragraph (e)(1) of the section within 3 years from the date of payment by a Licensee, such royalties shall be handled in accordance with § 380.37.

    (f) Retention of records. Books and records of CPB and Covered Entities and of the Collective relating to payments of and distributions of royalties shall be kept for a period of not less than the prior 3 calendar years.

    § 380.34 Confidential Information.

    (a) Definition. For purposes of this subpart, “Confidential Information” shall include the statements of account and any information contained therein, including the amount of royalty payments, and any information pertaining to the statements of account reasonably designated as confidential by the Licensee submitting the statement.

    (b) Exclusion. Confidential Information shall not include documents or information that at the time of delivery to the Collective are public knowledge, or documents or information that become publicly known through no fault of the Collective or are known by the Collective when disclosed by CPB/NPR. The party claiming the benefit of this provision shall have the burden of proving that the disclosed information was public knowledge.

    (c) Use of Confidential Information. In no event shall the Collective use any Confidential Information for any purpose other than royalty collection and distribution and activities related directly thereto and enforcement of the terms of the statutory licenses.

    (d) Disclosure of Confidential Information. Access to Confidential Information shall be limited to:

    (1) Those employees, agents, attorneys, consultants and independent contractors of the Collective, subject to an appropriate confidentiality agreement, who are engaged in the collection and distribution of royalty payments hereunder and activities related thereto, for the purpose of performing such duties during the ordinary course of their work and who require access to the Confidential Information;

    (2) An independent and Qualified Auditor, subject to an appropriate confidentiality agreement, who is authorized to act on behalf of the Collective with respect to verification of a Licensee's statement of account pursuant to § 380.35 or on behalf of a Copyright Owner or Performer with respect to the verification of royalty distributions pursuant to § 380.36;

    (3) Copyright Owners and Performers, including their designated agents, whose works have been used under the statutory licenses set forth in 17 U.S.C. 112(e) and 114 by the Licensee whose Confidential Information is being supplied, subject to an appropriate confidentiality agreement, and including those employees, agents, attorneys, consultants and independent contractors of such Copyright Owners and Performers and their designated agents, subject to an appropriate confidentiality agreement, for the purpose of performing their duties during the ordinary course of their work and who require access to the Confidential Information; and

    (4) In connection with future proceedings under 17 U.S.C. 112(e) and 114 before the Copyright Royalty Judges, and under an appropriate protective order, attorneys, consultants and other authorized agents of the parties to the proceedings or the courts, subject to the provisions of any relevant agreements restricting the activities of CPB, Covered Entities or the Collective in such proceedings.

    (e) Safeguarding of Confidential Information. The Collective and any person identified in paragraph (d) of this section shall implement procedures to safeguard against unauthorized access to or dissemination of any Confidential Information using a reasonable standard of care, but no less than the same degree of security used to protect Confidential Information or similarly sensitive information belonging to the Collective or person.

    § 380.35 Verification of royalty payments.

    (a) General. This section prescribes procedures by which the Collective may verify the royalty payments made by CPB.

    (b) Frequency of verification. The Collective may conduct a single audit of any Covered Entities, upon reasonable notice and during reasonable business hours, during any given calendar year, for any or all of the prior 3 calendar years, but no calendar year shall be subject to audit more than once.

    (c) Notice of intent to audit. The Collective must file with the Copyright Royalty Judges a notice of intent to audit CPB and Covered Entities, which shall, within 30 days of the filing of the notice, publish in the Federal Register a notice announcing such filing. The notification of intent to audit shall be served at the same time on CPB. Any such audit shall be conducted by an independent and Qualified Auditor identified in the notice, and shall be binding on all parties.

    (d) Acquisition and retention of report. CPB and Covered Entities shall use commercially reasonable efforts to obtain or to provide access to any relevant books and records maintained by third parties for the purpose of the audit. The Collective shall retain the report of the verification for a period of not less than 3 years.

    (e) Consultation. Before rendering a written report to the Collective, except where the auditor has a reasonable basis to suspect fraud and disclosure would, in the reasonable opinion of the auditor, prejudice the investigation of such suspected fraud, the auditor shall review the tentative written findings of the audit with the appropriate agent or employee of CPB in order to remedy any factual errors and clarify any issues relating to the audit; Provided that an appropriate agent or employee of CPB reasonably cooperates with the auditor to remedy promptly any factual errors or clarify any issues raised by the audit.

    (f) Costs of the verification procedure. The Collective shall pay the cost of the verification procedure, unless it is finally determined that there was an underpayment of 10% or more, in which case CPB shall, in addition to paying the amount of any underpayment, bear the reasonable costs of the verification procedure.

    § 380.36 Verification of royalty distributions.

    (a) General. This section prescribes procedures by which any Copyright Owner or Performer may verify the royalty distributions made by the Collective; provided, however, that nothing contained in this section shall apply to situations where a Copyright Owner or Performer and the Collective have agreed as to proper verification methods.

    (b) Frequency of verification. A Copyright Owner or Performer may conduct a single audit of the Collective upon reasonable notice and during reasonable business hours, during any given calendar year, for any or all of the prior 3 calendar years, but no calendar year shall be subject to audit more than once.

    (c) Notice of intent to audit. A Copyright Owner or Performer must file with the Copyright Royalty Judges a notice of intent to audit the Collective, which shall, within 30 days of the filing of the notice, publish in the Federal Register a notice announcing such filing. The notification of intent to audit shall be served at the same time on the Collective. Any audit shall be conducted by an independent and Qualified Auditor identified in the notice, and shall be binding on all Copyright Owners and Performers.

    (d) Acquisition and retention of report. The Collective shall use commercially reasonable efforts to obtain or to provide access to any relevant books and records maintained by third parties for the purpose of the audit. The Copyright Owner or Performer requesting the verification procedure shall retain the report of the verification for a period of not less than 3 years.

    (e) Consultation. Before rendering a written report to a Copyright Owner or Performer, except where the auditor has a reasonable basis to suspect fraud and disclosure would, in the reasonable opinion of the auditor, prejudice the investigation of such suspected fraud, the auditor shall review the tentative written findings of the audit with the appropriate agent or employee of the Collective in order to remedy any factual errors and clarify any issues relating to the audit; Provided that the appropriate agent or employee of the Collective reasonably cooperates with the auditor to remedy promptly any factual errors or clarify any issues raised by the audit.

    (f) Costs of the verification procedure. The Copyright Owner or Performer requesting the verification procedure shall pay the cost of the procedure, unless it is finally determined that there was an underpayment of 10% or more, in which case the Collective shall, in addition to paying the amount of any underpayment, bear the reasonable costs of the verification procedure.

    § 380.37 Unclaimed funds.

    If the Collective is unable to identify or locate a Copyright Owner or Performer who is entitled to receive a royalty distribution under this subpart, the Collective shall retain the required payment in a segregated trust account for a period of 3 years from the date of distribution. No claim to such distribution shall be valid after the expiration of the 3-year period. After expiration of this period, the Collective may apply the unclaimed funds to offset any costs deductible under 17 U.S.C. 114(g)(3). The foregoing shall apply notwithstanding the common law or statutes of any State.

    Dated: July 28, 2015. Suzanne M. Barnett, Chief Copyright Royalty Judge

    Approved by:

    James H. Billington, Librarian of Congress.
    [FR Doc. 2015-24504 Filed 10-1-15; 8:45 am] BILLING CODE 1410-72-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA-HQ-OPPT-2015-0388; FRL-9933-30] RIN 2070-AB27 Significant New Use Rules on Certain Chemical Substances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 30 chemical substances which were the subject of premanufacture notices (PMNs). Nine of these chemical substances are subject to TSCA section 5(e) consent orders issued by EPA. This action requires persons who intend to manufacture (including import) or process any of these 30 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.

    DATES:

    This rule is effective on December 1, 2015. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on October 16, 2015.

    Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before November 2, 2015 (see Unit VI. of the SUPPLEMENTARY INFORMATION). If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before November 2, 2015, EPA will withdraw the relevant sections of this direct final rule before its effective date.

    For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2015-0388, by one of the following methods:

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

    Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

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

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

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Kenneth Moss, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-9232; email address: [email protected]

    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: [email protected]

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

    You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

    This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of a proposed or final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    II. Background A. What action is the agency taking?

    EPA is promulgating these SNURs using direct final procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture, or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. Additional rationale and background to these rules are more fully set out in the preamble to EPA's first direct final SNUR published in the Federal Register issue of April 24, 1990 (55 FR 17376) (FRL-3658-5). Consult that preamble for further information on the objectives, rationale, and procedures for SNURs and on the basis for significant new use designations, including provisions for developing test data.

    B. What is the agency's authority for taking this action?

    Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use. Persons who must report are described in § 721.5.

    C. Applicability of General Provisions

    General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the Federal Register its reasons for not taking action.

    III. Significant New Use Determination

    Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

    • The projected volume of manufacturing and processing of a chemical substance.

    • The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

    • The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

    • The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

    In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.

    To determine what would constitute a significant new use for the 30 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.

    IV. Substances Subject to This Rule

    EPA is establishing significant new use and recordkeeping requirements for 30 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:

    • PMN number.

    • Chemical name (generic name, if the specific name is claimed as CBI).

    • Chemical Abstracts Service (CAS) Registry number (assigned for non-confidential chemical identities).

    • Basis for the TSCA section 5(e) consent order or the basis for the TSCA non-section 5(e) SNURs (i.e., SNURs without TSCA section 5(e) consent orders).

    • Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).

    • CFR citation assigned in the regulatory text section of this rule.

    The regulatory text section of this rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (i.e., limits on manufacture volume) and other uses designated in this rule, may be claimed as CBI. Unit IX. discusses a procedure companies may use to ascertain whether a proposed use constitutes a significant new use.

    This rule includes 8 PMN substances that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that activities associated with the PMN substances may present unreasonable risk to human health or the environment. Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “TSCA section 5(e) SNURs” on these PMN substances are promulgated pursuant to §  721.160, and are based on and consistent with the provisions in the underlying consent orders. The TSCA section 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.

    In addition, this rule includes one SNUR on a PMN substance that is subject to an “exposure-based” consent order under TSCA section 5(e)(1)(A)(ii)(II), wherein EPA determined that the PMN substance is expected to be produced in substantial quantities, and that there may either be significant or substantial human exposure and/or the PMN substance may enter the environment in substantial quantities. The TSCA section 5(e) consent order requires submission of certain test data to EPA before the manufacturer may exceed a specified production volume. These SNURs designate as a “significant new use” the absence of the protective measures or exceedance of the production volume limit required in the TSCA section 5(e) consent order.

    This rule also includes SNURs on 21 PMN substances that are not subject to consent orders under TSCA section 5(e). In these cases, for a variety of reasons, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “TSCA non-section 5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all TSCA non-section 5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.

    PMN Numbers P-12-69, P-12-70, and P-12-520

    Chemical name: Fatty acids compound with cyclohexanamine (generic) (P-12-69 and 70) and Fatty acids amine salt (generic) (P-12-0520).

    CAS numbers: Claimed Confidential.

    Effective date of TSCA section 5(e) consent order: February 11, 2015.

    Basis for TSCA section 5(e) consent order: The PMNs states that the generic (non-confidential) use of the substances will be as a lubricity additive (P-12-69 and P-12-70) and a chemical component for fuel additives (P-12-520). Based on structure-activity relationship (SAR) analysis of test data on analogous aliphatic amines, EPA predicts toxicity to aquatic organisms to occur at concentrations that exceed 52 parts per billion (ppb) (P-12-69), 4 ppb (P-12-70) and 180 ppb (P-12-520) of the PMN substances in surface waters for greater than 20 days per year. This 20-day criterion is derived from partial life cycle tests (daphnid chronic and fish early life stage tests) that typically range from 21 to 28 days in duration. EPA predicts toxicity to aquatic organisms may occur if releases of the substance to surface water, from uses other than as described in the PMNs, exceed releases from the use described in the PMNs. For the uses described in the PMNs, environmental releases did not exceed 52 ppb, 4 ppb, or 180 ppb, respectively, for more than 20 days per year. The consent order for these PMN substances was issued under TSCA sections 5(e)(1)(A)(i) and 5(e)(1)(A)(ii)(I) based on a finding that the uncontrolled manufacture, processing, distribution in commerce, use and disposal may present an unreasonable risk to the environment. To protect against these risks, the consent order requires manufacturing, processing, or use of the substance for the specific confidential uses stated in the PMNs. The SNUR designates as a “significant new use” the absence of these protective measures.

    Recommended testing: EPA has determined that the results of a fish early life-stage toxicity test (OPPTS Test Guideline 850.1400) and a daphnia chronic toxicity test (OPPTS 850.1300) would help characterize the environmental effects of the PMN substances. Testing should be done on P-12-69 only. The submitter has agreed not to exceed a confidential volume limit without performing this testing.

    CFR citations: CFR 721.10852 (P-12-69 and P-12-70) and 40 CFR 721.10856 (P-12-520).

    PMN Number P-12-169

    Chemical name: Fluoro-modified acrylic copolymer (generic).

    CAS number: Claimed confidential.

    Effective date of TSCA section 5(e) consent order: March 19, 2015.

    Basis for TSCA section 5(e) consent order: The PMN states that the use of the substance will be as a substrate wetting and leveling agent for organic solvent-based paints and inks. EPA has concerns for potential incineration or other decomposition products of the PMN substance. These fluorinated decomposition products may be released to the environment from incomplete incineration of the PMN substance at low temperatures. EPA has preliminary evidence, including data on some fluorinated polymers, which suggests that, under some conditions, the PMN substance could degrade in the environment. EPA has concerns that these degradation products will persist in the environment, could bioaccumulate or biomagnify, and could be toxic (PBT) to people, wild mammals, and birds. These concerns are based on data on analogous chemical substances, including perfluorooctanoic acid (PFOA) and other perfluorinated alkyls, including the presumed environmental degradant. The order was issued under TSCA sections 5(e)(1)(A)(i), 5(e)(1)(A)(ii)(I), and 5(e)(1)(A)(ii)(II), based on a finding that these substances may present an unreasonable risk of injury to the environment and human health, the substances may be produced in substantial quantities and may reasonably be anticipated to enter the environment in substantial quantities, and there may be significant (or substantial) human exposure to the substances and their potential degradation products. To protect against these exposures and risks, the consent order requires:

    1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a Material Safety Data Sheet (MSDS), within 90 days.

    2. Submission of certain physical/chemical property and environmental fate testing on a related PMN substance prior to exceeding the confidential production volume limits as specified in the consent order of the PMN substance.

    3. Recording and reporting of certain fluorinated impurities in the starting raw material and the initially isolated intermediates; and manufacture of the PMN substance not to exceed the maximum established impurity levels of certain fluorinated impurities. The SNUR designates as a “significant new use” the absence of these protective measures.

    Recommended testing: EPA has determined that the results of certain physical/chemical property and environmental fate testing identified in the TSCA 5(e) consent order would help characterize possible effects of the substance and its degradation products. The Order prohibits the Company from exceeding specified confidential production volumes unless the Company submits the information described in the Testing section of this Order in accordance with the conditions specified in the Testing section. Further, EPA has identified certain toxicity and environmental fate testing described in the Pended Testing section of the Preamble to the Order that would help characterize the possible effects of the PMN substance. The Order does not require submission of the pended testing at any specified time or production volume. However, the Order's restrictions on manufacture, processing, distribution in commerce, use, and disposal of the PMN substance will remain in effect until the Order is modified or revoked by EPA based on submission of that or other relevant information.

    CFR citation: 40 CFR 721.10853.

    PMN Number P-12-351

    Chemical name: Siloxanes and Silicones, alkyl, alky propoxy ethyl, methyl octyl, alkyl polyfluorooctyl (generic).

    CAS number: Claimed confidential.

    Effective date of TSCA section 5(e) consent order: March 19, 2015.

    Basis for TSCA section 5(e) consent order: The PMN states that the generic (non-confidential) use of the substance will be as a coating additive. EPA has concerns for potential incineration or other decomposition products of the PMN substance. These fluorinated decomposition products may be released to the environment from incomplete incineration of the PMN substance at low temperatures. EPA has preliminary evidence, including data on some fluorinated polymers, which suggests that, under some conditions, the PMN substance could degrade in the environment. EPA has concerns that these degradation products will persist in the environment, could bioaccumulate or biomagnify, and could be toxic (PBT) to people, wild mammals, and birds. These concerns are based on data on analogous chemical substances, including perfluorooctanoic acid (PFOA) and other perfluorinated alkyls, including the presumed environmental degradant. The order was issued under TSCA sections 5(e)(1)(A)(i), 5(e)(1)(A)(ii)(I), and 5(e)(1)(A)(ii)(II), based on a finding that these substances may present an unreasonable risk of injury to the environment and human health, the substances may be produced in substantial quantities and may reasonably be anticipated to enter the environment in substantial quantities, and there may be significant (or substantial) human exposure to the substances and their potential degradation products. To protect against these exposures and risks, the consent order requires:

    1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.

    2. Submission of certain physical/chemical property and environmental fate testing on a related PMN substance prior to exceeding the confidential production volume limits as specified in the consent order of the PMN substances.

    3. Recording and reporting of certain fluorinated impurities in the starting raw material and the initially isolated intermediates; and manufacture of the PMN substances not to exceed the maximum established impurity levels of certain fluorinated impurities. The SNUR designates as a “significant new use” the absence of these protective measures.

    Recommended testing: EPA has determined that the results of certain physical/chemical property and environmental fate testing identified in the TSCA 5(e) consent order would help characterize possible effects of the substances and their degradation products. The Order prohibits the Company from exceeding specified confidential production volumes unless the Company submits the information described in the Testing section of this Order in accordance with the conditions specified in the Testing section. Further, EPA has identified certain toxicity and environmental fate testing described in the Pended Testing section of the Preamble to the Order that would help characterize the effects of the PMN substances. The Order does not require submission of the pended testing at any specified time or production volume. However, the Order's restrictions on manufacture, processing, distribution in commerce, use, and disposal of the PMN substances will remain in effect until the Order is modified or revoked by EPA based on submission of that or other relevant information.

    CFR citation: 40 CFR 721.10854.

    PMN Number P-12-450 and P-12-451

    Chemical name: Partially fluorinated alcohol, reaction products with phosphorus oxide (P2O5), amine salts (generic).

    CAS number: Claimed confidential.

    Effective date of TSCA section 5(e) consent order: March 16, 2015.

    Basis for TSCA section 5(e) consent order: The PMNs state that the generic (non-confidential) use of the substances will be as coating additives and surface active agents. EPA has concerns for potential incineration or other decomposition products of the PMN substances. These perfluorinated decomposition products may be released to the environment from incomplete incineration of the PMN substances at low temperatures. EPA has preliminary evidence, including data on some fluorinated polymers, which suggests that, under some conditions, the PMN substances could degrade in the environment. EPA has concerns that these degradation products will persist in the environment, could bioaccumulate or biomagnify, and could be toxic (PBT) to people, wild mammals, and birds. These concerns are based on data on analogous chemical substances, including perfluorooctanoic acid (PFOA) and other perfluorinated alkyls, including the presumed environmental degradant. The order was issued under TSCA sections 5(e)(1)(A)(i), 5(e)(1)(A)(ii)(I), and 5(e)(1)(A)(ii)(II), based on a finding that these substances may present an unreasonable risk of injury to the environment and human health, the substances may be produced in substantial quantities and may reasonably be anticipated to enter the environment in substantial quantities, and there may be significant (or substantial) human exposure to the substances and their potential degradation products. To protect against these exposures and risks, the consent order requires:

    1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.

    2. Submission of certain physical/chemical property and environmental fate testing on a related PMN substance prior to exceeding the confidential production volume limits as specified in the consent order of the PMN substances.

    3. Recording and reporting of certain fluorinated impurities in the starting raw material and the initially isolated intermediates; and manufacture of the PMN substances not to exceed the maximum established impurity levels of certain fluorinated impurities. The SNUR designates as a “significant new use” the absence of these protective measures.

    Recommended testing: EPA has determined that the results of certain physical/chemical property and environmental fate testing identified in the TSCA 5(e) consent order would help characterize possible effects of the substances and their degradation products. The Order prohibits the Company from exceeding specified confidential production volumes unless the Company submits the information described in the Testing section of this Order in accordance with the conditions specified in the Testing section. Further, EPA has identified certain toxicity and environmental fate testing described in the Pended Testing section of the Preamble to the Order that would help characterize the effects of the PMN substances. The Order does not require submission of the pended testing at any specified time or production volume. However, the Order's restrictions on manufacture, processing, distribution in commerce, use, and disposal of the PMN substances will remain in effect until the Order is modified or revoked by EPA based on submission of that or other relevant information.

    CFR citation: 40 CFR 721.10855.

    PMN Number P-13-292

    Chemical name: Organophosphorus polymer (generic).

    CAS number: Claimed confidential.

    Effective date of TSCA section 5(e) consent order: February 13, 2015.

    Basis for TSCA section 5(e) consent order: The PMN states that the generic (non-confidential) use of the substance will be as an additive for polymers. Using available exposure information from the public literature (i.e., measured values for similar substances in house dust in homes), and certain assumptions for mouthing behavior by young children, EPA identified concerns for potential exposure to the general population. However, there is uncertainty about the risk from this scenario due to the absence of hazard data on the PMN substance itself and information on the ability for the PMN substance to migrate or leach out of certain consumer products. Consumer exposure is possible if the PMN migrates from these products or decomposes to form dust particles that can be inhaled or ingested. Analogous chemicals, including Tris(2-chloroethyl)phosphate (TCEP) and Tris(1,3-dichloro-2 propyl) phosphate (TDCPP), can be found in household dust, and are widespread in the environment. Assuming similar use patterns over time, the PMN substance may be expected to display similar exposure patterns. The order was issued under TSCA sections 5(e)(1)(A)(i) and 5(e)(1)(A)(ii)(II), based on a finding that this substance may be produced in substantial quantities and may reasonably be anticipated to enter the environment in substantial quantities, and there may be significant (or substantial) human exposure to the substances and their potential degradation products. To address potential exposures and hazards, the consent order requires certain testing by certain confidential production volume limits.

    Recommended testing: EPA has determined that the results of certain physical/chemical property, toxicity, potential for migration from products, and dermal and other absorption testing identified in the TSCA 5(e) consent order would help characterize possible effects of the substance. The Order prohibits the Company from exceeding specified confidential production volumes unless the Company submits the information described in the Testing section of this Order in accordance with the conditions specified in the Testing section.

    CFR citation: 40 CFR 721.10857.

    PMN Number P-13-305

    Chemical name: Fluorinated acid alkylester (generic).

    CAS number: Claimed confidential.

    Effective date of TSCA section 5(e) consent order: February 27, 2015.

    Basis for TSCA section 5(e) consent order: The PMN states that the generic (non-confidential) use of the substance will be as an intermediate. EPA has concerns that the PMN substance will persist in the environment, could bioaccumulate, and be toxic (“PBT”) to humans, other mammals, and birds. EPA's concerns are based on data on the PMN substance, and analogy to perfluorobutanoic acid (PFBA), PFOA, perfluorooctanol sulfonate (PFOS), and other analogs. The order was issued under TSCA sections 5(e)(1)(A)(i) and 5(e)(1)(A)(ii)(I), based on a finding that this substance may present an unreasonable risk of injury to the environment and human health. To protect against these exposures and risks, the consent order requires:

    1. Risk notification. If the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a Material Safety Data Sheet (MSDS), within 90 days.

    2. Use of personal protective equipment including impervious gloves and a National Institute of Occupational Safety and Health (NIOSH)-certified respirator with an assigned protection factor (APF) of at least 10, when there is potential exposure.

    3. Establishment and use of a hazard communication program, including health hazard precautionary statements on each label and the MSDS.

    4. Use of the PMN substance only as a chemical intermediate. Any chemical substance manufactured using the PMN substance may contain residuals of the PMN substance at a certain maximum level.

    5. Recover and convert, capture (destroy), recycle, or reuse the substance at a certain overall efficiency when the PMN substance is used as an intermediate in accordance with the provisions.

    6. Not use the PMN substance in consumer products.

    The SNUR designates as a “significant new use” the absence of these protective measures.

    Recommended testing: EPA has determined that the results of certain toxicity, metabolism and pharmacokinetics testing described in the Pended Testing section of the Preamble to the Order would help characterize the human health effects of the PMN substance. The Order does not require submission of the pended testing at any specified time or production volume. However, the Order's restrictions on manufacture, processing, distribution in commerce, use, and disposal of the PMN substance will remain in effect until the Order is modified or revoked by EPA based on submission of that or other relevant information.

    CFR citation: 40 CFR 721.10858.

    PMN Number P-14-563

    Chemical name: Quaternary alkyl methyl amine ethoxylate methyl chloride (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a cleaner/degreaser. Based on submitted test data on the PMN substance as well as SAR analysis of test data on analogous cationic surfactants, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 29 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations exceeding 29 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance that results in releases to surface water concentrations exceeding 29 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(i) and (ii).

    Recommended testing: EPA has determined that the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400) and a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300) would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10859.

    PMN Number P-14-756

    Chemical name: Substituted carboxamide (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a material for highly dispersive use in consumer products and component of a consumer product. Based on submitted test data on the PMN substance as well as SAR analysis of test data on analogous amides, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 3 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations exceeding 3 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance that results in releases to surface water concentrations exceeding 3 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(i) and (ii).

    Recommended testing: EPA has determined that the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400) and a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300) and would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10860.

    PMN Number P-14-804

    Chemical name: Phosphoric acid, sodium titanium (4+) salt (3:1:2).

    CAS number: 22239-24-3.

    Basis for action: The PMN states that the substance will be used as a component in anode material in sealed batteries. Based on SAR analysis of test data on analogous inorganic phosphates and titanium compounds, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 4 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations exceeding 4 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance that results in releases to surface water concentrations exceeding 4 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(ii).

    Recommended testing: EPA has determined that the results of a fish acute toxicity test, freshwater and marine (OPPTS Test Guideline 850.1075), an acute invertebrate toxicity test, freshwater daphnids (OPPTS Test Guideline 850.1010), and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10861.

    PMN Numbers P-15-1, P-15-2, P-15-3, P-15-4, P-15-5, and P-15-6

    Chemical names: Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate (P-15-1); Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, sodium salt (P-15-2); Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, potassium salt (P-15-3); Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, ammonium salt (P-15-4); Ethanol, 2-amino-, compd. with 2-methyloxirane polymer with oxirane monohexadecyl ether phosphate (P-15-5); and Ethanol, 2,2′2″,-nitrilotris-, compd. with 2-methyloxirane polymer with oxirane monohexadecyl ether phosphate (P-15-6).

    CAS numbers: 73361-29-2 (P-15-1); 151688-56-1 (P-15-2); 1456802-88-2 (P-15-3); 1456802-89-3 (P-15-4); 1456803-12-5 (P-15-5); and 1456803-14-7 (P-15-6).

    Basis for action: The PMNs state that the generic (non-confidential) use of the substances will be as inert surfactants in pesticide formulations. Based on SAR analysis of test data on analogous anionic surfactant compounds, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 18 ppb in aggregate of the PMN substances in surface waters. As described in the PMNs, releases of the substances are not expected to result in surface water concentrations exceeding 18 ppb in aggregate. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substances may present an unreasonable risk. EPA has determined, however, that any use of the substances that results in aggregate releases to surface waters exceeding 18 ppb may result in significant adverse environmental effects. Based on this information, the PMN substances meet the concern criteria at § 721.170(b)(4)(ii).

    Recommended testing: EPA has determined that the results of a fish acute toxicity test (OPPTS Test Guideline 850.1075), an acute invertebrate toxicity test (OPPTS Test Guideline 850.1010), and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the environmental effects of the PMN substances. The recommended testing may be performed on any one of the 6 PMN chemicals.

    CFR Citation: 40 CFR 721.10862.

    PMN Number P-15-25

    Chemical name: Nitrile amine (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a site-limited chemical intermediate. Based on submitted test data on the PMN substance as well as SAR analysis of test data on analogous neutral organic compounds, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 1 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations exceeding 1 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance that results in releases to surface water concentrations exceeding 1 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(i) and (ii).

    Recommended testing: EPA has determined that the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400), a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300), and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10863.

    PMN Number P-15-26

    Chemical name: 1,3-Propanediamine, N1, N1-alkyl (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a friction modifier. Based on submitted test data on an analogous substance as well as SAR analysis of test data on analogous aliphatic amines, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 32 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations exceeding 32 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance that results in releases to surface water concentrations exceeding 32 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(ii).

    Recommended testing: EPA has determined that the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400), a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300), and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the environmental effects of the PMN substance. EPA also recommends that the guidance document on aquatic toxicity testing of difficult substance and mixtures (Organisation for Economic Co-operation and Development (OECD) Test Guideline 23) be consulted to facilitate solubility in the test media, because of the PMN substance's low water solubility.

    CFR Citation: 40 CFR 721.10864.

    PMN Number P-15-36

    Chemical name: 2-Pyridinecarboxylic acid, 4,5,6-trichloro-.

    CAS number: 496849-77-5.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a chemical intermediate. Based on SAR analysis of test data on analogous pyridine-alpha-acids and neutral organics, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 30 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations exceeding 30 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance that results in releases to surface water concentrations exceeding 30 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(ii).

    Recommended testing: EPA has determined that the results of a fish acute toxicity test, freshwater and marine (OPPTS Test Guideline 850.1075), an acute invertebrate toxicity test, freshwater daphnids (OPPTS Test Guideline 850.1010), an algal toxicity test (OCSPP Test Guideline 850.4500), and the aerobic/anaerobic transformation in soil test (OECD 307) would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10865.

    PMN Number P-15-61

    Chemical name: Imidazoliurn, polymer with cyclic anhydride and alkenoic acid, alkali salt (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a leather chemical. Based on SAR analysis of test data on analogous polyanionic polymers, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 200 ppb of the PMN substance in surface waters for greater than 20 days per year. This 20-day criterion is derived from partial life cycle tests (daphnid chronic and fish early life stage tests) that typically range from 21 to 28 days in duration. EPA predicts toxicity to aquatic organisms may occur if releases of the substance to surface water, from uses other than as described in the PMN, exceed releases from the use described in the PMN. For the use described in the PMN, environmental releases did not exceed 200 ppb for more than 20 days per year. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance other than as listed in the PMN may result in significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(ii).

    Recommended testing: EPA has determined that the results of a ready biodegradability test (OPPTS Test Guideline 835.3110), a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400), a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300), and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10866.

    PMN Number P-15-98

    Chemical name: Hydrochlorofluorocarbon (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as an intermediate in the production of a hydrofluorocarbon (HFC). Based on SAR analysis of test data on analogous neutral organics, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 99 ppb of the PMN substance in surface waters. Further, based on test data on analogous organohalogen compounds, there were health concerns regarding anesthesia at high inhalation doses from exposure to the PMN substance via dermal and inhalation exposure. As described in the PMN, exposure is expected to be minimal due to use of adequate dermal and respiratory personal protection equipment and releases of the substance are not expected to result in surface water concentrations exceeding 99 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance that results in releases to surface waters exceeding 99 ppb, or any use without the use of NIOSH-certified organic vapor cartridge respirator with an assigned protection factor of at least 25, or any use other than as a chemical intermediate may result in serious human health or significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii) and (b)(4)(ii).

    Recommended testing: EPA has determined that the results of a an acute inhalation toxicity test (OPPTS Test Guideline 870.1300), fish acute toxicity test (OPPTS Test Guideline 850.1075), an aquatic invertebrate acute toxicity test (OPPTS Test Guideline 850.1010), and algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the human health and environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10867.

    PMN Number P-15-136

    Chemical name: Alkylalkenoic acid copolymer (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as an encapsulating polymer. Based on test data on analogous high molecular weight polymers, EPA identified concerns for lung toxicity. As described in the PMN, EPA does not expect significant worker inhalation exposure due to no domestic manufacture, and the substance is not manufactured, processed, or used in the form of a powder. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any domestic manufacture of the substance or any import, processing, or use of the substance in the form of a powder may cause serious health effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).

    Recommended testing: EPA has determined that the results of a 90-day inhalation toxicity test with a 60-day holding period (OPPTS Test Guideline 870.3465) would help characterize the human health effects of the PMN substance.

    CFR Citation: 40 CFR 721.10868.

    PMN Number P-15-141

    Chemical name: D-Glucitol, alkylamino-N-acyl derivs. (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the substance will be used as a surfactant in cleaning products and liquid soaps. Based on test data on the PMN substance, as well as SAR analysis of test data on analogous nonionic surfactants, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 14 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations that exceed 14 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance resulting in surface water concentrations exceeding 14 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170 (b)(4)(i) and (b)(4)(ii).

    Recommended testing: EPA has determined that the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400) and a ready biodegradability test (OECD Test Guideline 301) would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10869.

    PMN Number P-15-150

    Chemical name: Cyclohexanedicarboxylic acid, dialkyl ester (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as an adjuvant used in reaction processes. Based on SAR analysis of test data on analogous esters, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 10 ppb of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations that exceed 10 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance resulting in surface water concentrations exceeding 10 ppb may cause significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(4)(ii).

    Recommended testing: EPA has determined that the results of a fish acute toxicity test, freshwater and marine (OPPTS Test Guideline 850.1075); an acute invertebrate toxicity test, freshwater daphnids (OPPTS Test Guideline 850.1010); and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10870.

    PMN Number P-15-221

    Chemical name: Isocyanate prepolymer (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as ingredient in an industrial adhesive. Based on SAR analysis of test data on analogous diisocyanates, EPA identified concerns for irritation and sensitization to the skin and lungs. As described in the PMN, EPA does not expect significant occupational dermal or inhalation exposure due to use of adequate personal protective equipment and consumer exposures are not expected as the PMN substance is not used in consumer products. Therefore, EPA has not determined that the proposed manufacture, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance without a NIOSH-certified particulate respirator with an APF of at least 10 where there is a potential for inhalation exposure, or any use in consumer products may cause serious health effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).

    Recommended testing: EPA has determined that the results of a skin sensitization test (OPPTS Test Guideline 870.2600) and a 90-day subchronic inhalation toxicity test (OPPTS Test Guideline 870.3465) would help characterize the human health effects of the PMN substance.

    CFR Citation: 40 CFR 721.10871.

    PMN Number P-15-242

    Chemical name: Heteropolycyclic, polymer with alkanedioic acid, di-alkenoate (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a coating resin. Based on test data on analogous acrylates, EPA identified concerns for oncogenicity, developmental toxicity, liver and kidney toxicity, sensitization, irritation, and acute toxicity. Further, based on SAR analysis of test data on analogous acrylates, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 120 ppb of the PMN substance in surface waters. As described in the PMN, occupational exposures are expected to be minimal due to the use of impervious gloves, goggles, and NIOSH-certified particulate respirators with an APF of at least 10. Further, releases of the substance are not expected to result in surface water concentrations exceeding 120 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that use of the substance without use of impervious gloves and goggles, when there is a potential dermal exposure; use of the substance without a NIOSH-certified particulate respirator with an APF of at least 10, where there is a potential for inhalation exposures; or any use of the substance that results in releases to surface waters exceeding 120 ppb may result in significant adverse health and environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170 (b)(1)(i)(C), (b)(3)(ii), and (b)(4)(ii).

    Recommended testing: EPA has determined that the results of a combined repeated dose toxicity with the reproduction/developmental toxicity screening test (OPPTS 870.3650); a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400); a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300); and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the human health and environmental effects of the PMN substance.

    CFR Citation: 40 CFR 721.10872.

    PMN Number P-15-247

    Chemical name: Methylene diisocyanate polymer with diols and triols (generic).

    CAS number: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as an industrial adhesive. Based on SAR analysis of test data on analogous diisocyanates, EPA identified concerns for respiratory and dermal sensitization and lung and mucous membrane irritation based on the isocyanate moiety As described in the PMN, EPA does not expect significant occupational dermal or inhalation exposure due to use of adequate personal protective equipment and consumer exposures are not expected as the PMN substance is not used in consumer products. Therefore, EPA has not determined that the proposed manufacture, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance without a NIOSH-certified particulate respirator with an APF of at least 10 where there is a potential for inhalation exposure, or any use in consumer products, may cause serious health effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).

    Recommended testing: EPA has determined that the results of a skin sensitization test (OPPTS Test Guideline 870.2600) and a 90-day subchronic inhalation toxicity test (OPPTS Test Guideline 870.3465) would help characterize the human health effects of the PMN substance.

    CFR Citation: 40 CFR 721.10873.

    PMN Number P-15-278

    Chemical name: Polymer of isophorone diisocyanate and amine-terminated propoxylatedpolyol (generic).

    CAS numbers: Claimed confidential.

    Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a crosslinker. Based on analogous diisocyanates, EPA identified concerns for potential dermal and respiratory sensitization from dermal and inhalation exposures, and for pulmonary toxicity from inhalation exposure, to the PMN substance when the average molecular weight is below 2500 daltons and any molecular weight species is below 1000 daltons. EPA does not expect significant exposures from the form of the PMN substance as described in the PMN. Therefore, EPA has not determined that the proposed manufacture of the substance may present an unreasonable risk. EPA has determined, however, that any manufacture of the PMN substance with an average molecular weight of below 2500 daltons and any molecular weight species below 1000 daltons may cause serious health effects. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).

    Recommended testing: EPA has determined that the results of a skin sensitization test (OPPTS Test Guideline 870.2600) and a 90-day subchronic inhalation toxicity test (OPPTS Test Guideline 870.3465) would help characterize the human health effects of the PMN substance.

    CFR Citation: 40 CFR 721.10874.

    V. Rationale and Objectives of the Rule A. Rationale

    During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for 9 of the 30 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) consent orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters. The SNUR provisions for these chemical substances are consistent with the provisions of the TSCA section 5(e) consent orders. These SNURs are promulgated pursuant to §  721.160 (see Unit VI.).

    In the other 21 cases, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at §  721.170 were met, as discussed in Unit IV.

    B. Objectives

    EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:

    • EPA will receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.

    • EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

    • EPA will be able to regulate prospective manufacturers or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA section 5(e), 5(f), 6, or 7.

    • EPA will ensure that all manufacturers and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.

    Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at http://www.epa.gov/opptintr/existingchemicals/pubs/tscainventory/index.html.

    VI. Direct Final Procedures

    EPA is issuing these SNURs as a direct final rule, as described in §  721.160(c)(3) and §  721.170(d)(4). In accordance with §  721.160(c)(3)(ii) and §  721.170(d)(4)(i)(B), the effective date of this rule is December 1, 2015 without further notice, unless EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments before November 2, 2015.

    If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before November 2, 2015, EPA will withdraw the relevant sections of this direct final rule before its effective date. EPA will then issue a proposed SNUR for the chemical substance(s) on which adverse or critical comments were received, providing a 30-day period for public comment.

    This rule establishes SNURs for a number of chemical substances. Any person who submits adverse or critical comments, or notice of intent to submit adverse or critical comments, must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.

    VII. Applicability of the Significant New Use Designation

    To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.

    When chemical substances identified in this rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. However, TSCA section 5(e) consent orders have been issued for 9 of the 30 chemical substances, and the PMN submitters are prohibited by the TSCA section 5(e) consent orders from undertaking activities which would be designated as significant new uses. The identities of 22 of the 30 chemical substances subject to this rule have been claimed as confidential and EPA has received no post-PMN bona fide submissions (per §§ 720.25 and 721.11). Based on this, the Agency believes that it is highly unlikely that any of the significant new uses described in the regulatory text of this rule are ongoing.

    Therefore, EPA designates October 2, 2015 as the cutoff date for determining whether the new use is ongoing. Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires. If such a person met the conditions of advance compliance under § 721.45(h), the person would be considered exempt from the requirements of the SNUR. Consult the Federal Register document of April 24, 1990 for a more detailed discussion of the cutoff date for ongoing uses.

    VIII. Test Data and Other Information

    EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:

    1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).

    2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).

    In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. lists those tests. Unit IV. also lists recommended testing for non-5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.” The Organisation for Economic Co-operation and Development (OECD) test guidelines are available from the OECD Bookshop at http://www.oecdbookshop.org or SourceOECD at http://www.sourceoecd.org.

    In the TSCA section 5(e) consent orders for several of the chemical substances regulated under this rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) consent orders, each PMN submitter is required to submit each study before reaching the specified production limit. Listings of the tests specified in the TSCA section 5(e) consent orders are included in Unit IV. The SNURs contain the same production volume limits as the TSCA section 5(e) consent orders. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture or processing.

    The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

    SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

    • Human exposure and environmental release that may result from the significant new use of the chemical substances.

    • Potential benefits of the chemical substances.

    • Information on risks posed by the chemical substances compared to risks posed by potential substitutes.

    IX. Procedural Determinations

    By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1).

    Under these procedures a manufacturer or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer or processor must show that it has a bona fide intent to manufacture or process the chemical substance and must identify the specific use for which it intends to manufacture or process the chemical substance. If EPA concludes that the person has shown a bona fide intent to manufacture or process the chemical substance, EPA will tell the person whether the use identified in the bona fide submission would be a significant new use under the rule. Since most of the chemical identities of the chemical substances subject to these SNURs are also CBI, manufacturers and processors can combine the bona fide submission under the procedure in §  721.1725(b)(1) with that under §  721.11 into a single step.

    If EPA determines that the use identified in the bona fide submission would not be a significant new use, i.e., the use does not meet the criteria specified in the rule for a significant new use, that person can manufacture or process the chemical substance so long as the significant new use trigger is not met. In the case of a production volume trigger, this means that the aggregate annual production volume does not exceed that identified in the bona fide submission to EPA. Because of confidentiality concerns, EPA does not typically disclose the actual production volume that constitutes the use trigger. Thus, if the person later intends to exceed that volume, a new bona fide submission would be necessary to determine whether that higher volume would be a significant new use.

    X. SNUN Submissions

    According to §  721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

    XI. Economic Analysis

    EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2015-0388.

    XII. Statutory and Executive Order Reviews A. Executive Order 12866

    This action establishes SNURs for several new chemical substances that were the subject of PMNs, or TSCA section 5(e) consent orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review” (58 FR 51735, October 4, 1993).

    B. Paperwork Reduction Act (PRA)

    According to PRA (44 U.S.C. 3501 et seq.), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable. EPA is amending the table in 40 CFR part 9 to list the OMB approval number for the information collection requirements contained in this action. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB's implementing regulations at 5 CFR part 1320. This Information Collection Request (ICR) was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) to amend this table without further notice and comment.

    The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

    Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

    C. Regulatory Flexibility Act (RFA)

    On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601 et seq.), that promulgation of a SNUR does not have a significant economic impact on a substantial number of small entities where the following are true:

    1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

    2. The SNUR submitted by any small entity would not cost significantly more than $8,300.

    A copy of that certification is available in the docket for this action.

    This action is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:

    • A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

    • Submission of the SNUN would not cost any small entity significantly more than $8,300.

    Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq.).

    E. Executive Order 13132

    This action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).

    F. Executive Order 13175

    This action does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This action does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action.

    G. Executive Order 13045

    This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

    H. Executive Order 13211

    This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.

    J. Executive Order 12898

    This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    XIII. Congressional Review Act

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

    List of Subjects 40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

    40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.

    Dated: September 21, 2015. Maria J. Doa, Director, Chemical Control Division, Office of Pollution Prevention and Toxics.

    Therefore, 40 CFR parts 9 and 721 are amended as follows:

    PART 9—[AMENDED] 1. The authority citation for part 9 continues to read as follows: Authority:

    7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 11023, 11048.

    2. In § 9.1, add the following sections in numerical order under the undesignated center heading “Significant New Uses of Chemical Substances” to read as follows:
    §  9.1 OMB approvals under the Paperwork Reduction Act. 40 CFR Citation OMB Control No. *    *    *    *    *     Significant New Uses of Chemical Substances *    *    *    *    *     721.10852 2070-0012 721.10853 2070-0012 721.10854 2070-0012 721.10855 2070-0012 721.10856 2070-0012 721.10857 2070-0012 721.10858 2070-0012 721.10859 2070-0012 721.10860 2070-0012 721.10861 2070-0012 721.10862 2070-0012 721.10863 2070-0012 721.10864 2070-0012 721.10865 2070-0012 721.10866 2070-0012 721.10867 2070-0012 721.10868 2070-0012 721.10869 2070-0012 721.10870 2070-0012 721.10871 2070-0012 721.10872 2070-0012 721.10873 2070-0012 721.10874 2070-0012 *    *    *    *    *    
    PART 721—[AMENDED] 3. The authority citation for part 721 continues to read as follows: Authority:

    15 U.S.C. 2604, 2607, and 2625(c).

    4. Add § 721.10852 to subpart E to read as follows:
    § 721.10852 Fatty acids compound with cyclohexanamine (generic).

    (a) Chemical substances and significant new uses subject to reporting. (1) The chemical substances identified generically as fatty acids compound with cyclohexanamine (PMNs P-12-69 and P-12-70) are subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(k) and (q).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125(a), (b), (c), and (i) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to this section.

    5. Add § 721.10853 to subpart E to read as follows:
    § 721.10853 Fluoro-modified acrylic copolymer (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as fluoro-modified acrylic copolymer (PMN P-12-169) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Hazard communication program. A significant new use of the substance is any manner or method of manufacture or processing associated with any use of the substance without providing risk notification as follows:

    (A) If as a result of the test data required under the TSCA section 5(e) consent order for the substance, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance is not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.

    (B) The employer must ensure that persons who will receive the PMN substance from the employer, or who have received the PMN substance from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.

    (ii) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(k) (a significant new use is any use other than as allowed by the section 5(e) consent order, which includes analysis and reporting and limitations of maximum impurity levels of certain fluorinated impurities), and (q).

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (f), and (i) are applicable to manufacturers and processors of these substances.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to this section.

    6. Add § 721.10854 to subpart E to read as follows:
    § 721.10854 Siloxanes and Silicones, alkyl, alky propoxy ethyl, methyl octyl, alkyl polyfluorooctyl (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as siloxanes and silicones, alkyl, alky propoxy ethyl, methyl octyl, alkyl polyfluorooctyl (PMN P-12-351) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Hazard communication program. A significant new use of the substance is any manner or method of manufacture or processing associated with any use of the substance without providing risk notification as follows:

    (A) If as a result of the test data required under the TSCA section 5(e) consent order for the substance, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance is not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.

    (B) The employer must ensure that persons who will receive the PMN substance from the employer, or who have received the PMN substance from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.

    (ii) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(k) (a significant new use is any use other than as allowed by the section 5(e) consent order, which includes analysis and reporting and limitations of maximum impurity levels of certain fluorinated impurities), and (q).

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (f), and (i) are applicable to manufacturers and processors of these substances.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to this section.

    7. Add § 721.10855 to subpart E to read as follows:
    § 721.10855 Partially fluorinated alcohol, reaction products with phosphorus oxide (P2O5) amine salts (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substances identified generically as partially fluorinated alcohol, reaction products with phosphorus oxide (P2O5), amine salts (PMNs P-12-450 and P-12-451) are subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Hazard communication program. A significant new use of the substances is any manner or method of manufacture or processing associated with any use of the substances without providing risk notification as follows:

    (A) If as a result of the test data required under the TSCA section 5(e) consent order for the substances, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance(s) are not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance(s) are reintroduced into the workplace.

    (B) The employer must ensure that persons who will receive the PMN substance(s) from the employer, or who have received the PMN substance(s) from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.

    (ii) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(k) (a significant new use is any use other than as allowed by the section 5(e) consent order, which includes analysis and reporting and limitations of maximum impurity levels of certain fluorinated impurities), and (q).

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (f), and (i) are applicable to manufacturers and processors of these substances.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b) (1) apply to paragraph (a)(2)(ii) of this section.

    8. Add § 721.10856 to subpart E to read as follows:
    § 721.10856 Fatty acids amine salt (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as fatty acids amine salt (PMN P-12-520) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(k) and (q).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125(a), (b), (c), and (i) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to this section.

    9. Add § 721.10857 to subpart E to read as follows:
    § 721.10857 Organophosphorus polymer (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as organophosphorus polymer (PMN P-13-292) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(q).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125(a), (b), (c), and (i) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to this section.

    10. Add §  721.10858 to subpart E to read as follows:
    §  721.10858 Fluorinated acid alkylester (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as fluorinated acid alkylester (PMN P-13-305) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Protection in the workplace. Requirements as specified in § 721.63 (a)(1), (a)(2)(i), (a)(3), (a)(4), (a)(6)(i), (a)(6)(ii), (b) (concentration set at 1.0 percent), and (c). When determining which persons are reasonably likely to be exposed as required for § 721.63(a)(4), engineering control measures (e.g., enclosure or confinement of the operation, general and local ventilation) or administrative control measures (e.g., workplace policies and procedures) shall be considered and implemented to prevent exposure, where feasible. The following National Institute for Occupational Safety and Health (NIOSH)-certified respirators with an assigned protection factor (APF) of at least 10 meet the requirements of § 721.63(a)(4): Any NIOSH-certified air-purifying full facepiece respirator equipped with N100 (if oil aerosols absent), R100, or P100 filters.

    (ii) Hazard communication program. Requirements as specified in § 721.72(a), (b), (c), (d), (e), (f)(concentration set at 1.0 percent), (g)(1)(The PMN substance may cause central nervous system depression, liver effects, endocrine effects), (g)(2), and (g)(5). In addition a significant new use of the substances is any manner or method of manufacture or processing associated with any use of the substances without providing risk notification as follows:

    (A) If as a result of the test data required under the TSCA section 5(e) consent order for the substances, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance(s) are not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance(s) are reintroduced into the workplace.

    (B) The employer must ensure that persons who will receive the PMN substance(s) from the employer, or who have received the PMN substance(s) from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.

    (iii) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80 (g) and (o). It is a significant new use for any chemical substance manufactured using the PMN substance to contain residuals of the PMN substance above the level specified in the consent order. It is a significant new use to recover and convert, capture (destroy), recycle, or reuse the PMN substance below the overall efficiency specified in the consent order, when the PMN substance is used as an intermediate.

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125(a), (b), (c), and (i) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to this section.

    11. Add §  721.10859 to subpart E to read as follows:
    § 721.10859 Quaternary alkyl methyl amine ethoxylate methyl chloride (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as quaternary alkyl methyl amine ethoxylate methyl chloride (PMN P-14-563) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=29).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    12. Add § 721.10860 to subpart E to read as follows:
    § 721.10860 Substituted carboxamide (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as substituted carboxamide (PMN P-14-756) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=3).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    13. Add § 721.10861 to subpart E to read as follows:
    § 721.10861 Phosphoric acid, sodium titanium (4+) salt (3:1:2).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as phosphoric acid, sodium titanium (4+) salt (3:1:2) (PMN P-14-804; CAS No. 22239-24-3) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=4).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    14. Add § 721.10862 to subpart E to read as follows:
    § 721.10862 Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate; Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, sodium salt; Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, potassium salt; Oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, ammonium salt; Ethanol, 2-amino-, compd. with 2-methyloxirane polymer with oxirane monohexadecyl ether phosphate; and Ethanol, 2,2′2″,-nitrilotris-, compd. with 2-methyloxirane polymer with oxirane monohexadecyl ether phosphate.

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substances identified as oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate (P-15-1; CAS No. 73361-29-2); oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, sodium salt (P-15-2; CAS No. 151688-56-1); oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, potassium salt (P-15-3; CAS No. 1456802-88-2); oxirane, 2-methyl-, polymer with oxirane, monohexadecyl ether, phosphate, ammonium salt (P-15-4; CAS No. 1456802-89-3); ethanol, 2-amino-, compd. with 2-methyloxirane polymer with oxirane monohexadecyl ether phosphate (P-15-5; CAS No, 1456803-12-5); and ethanol, 2,2″2″,-nitrilotris-, compd. with 2-methyloxirane polymer with oxirane monohexadecyl ether phosphate (PMN P-15-6; CAS No. 1456803-14-7) are subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=18 in aggregate).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    15. Add § 721.10863 to subpart E to read as follows:
    § 721.10863 Nitrile amine (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as nitrile amine (PMN P-15-25) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=1).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    16. Add § 721.10864 to subpart E to read as follows:
    § 721.10864 1,3-propanediamine, N1, N1-alkyl (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as 1,3-propanediamine, N1, N1-alkyl (PMN P-15-26) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=32).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    17. Add § 721.10865 to subpart E to read as follows:
    § 721.10865 2-Pyridinecarboxylic acid, 4,5,6-trichloro-.

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as 2-pyridinecarboxylic acid, 4,5,6-trichloro- (PMN P-15-36; CAS No. 496849-77-5) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=30).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    18. Add § 721.10866 to subpart E to read as follows:
    § 721.10866 Imidazoliurn, polymer with cyclic anhydride and alkenoic acid, alkali salt (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as imidazoliurn, polymer with cyclic anhydride and alkenoic acid, alkali salt (PMN P-15-61) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Industrial commercial, and consumer activities. Requirements as specified in § 721.80 (j).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (i) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    (3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to paragraph (a)(2)(i) of this section.

    19. Add § 721.10867 to subpart E to read as follows:
    § 721.10867 Hydrochlorofluorocarbon (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as hydrochlorofluorocarbon. (PMN P-15-98) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Protection in the workplace. Requirements as specified in § 40 CFR 721.63 (a)(4), (a)(6)(i), (a)(6)(ii), (b)(concentration set at 1.0 percent), and (c). When determining which persons are reasonably likely to be exposed as required for § 721.63(a)(4), engineering control measures (e.g., enclosure or confinement of the operation, general and local ventilation) or administrative control measures (e.g., workplace policies and procedures) shall be considered and implemented to prevent exposure, where feasible. The following National Institute for Occupational Safety and Health (NIOSH)-certified respirators with an assigned protection factor (APF) of at least 25 meet the requirements of § 721.63(a)(4):

    (A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.

    (B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.

    (ii) Industrial commercial, and consumer activities. Requirements as specified in § 721.80 (g).

    (iii) Release to water. Requirements as specified in § 721.90 (a)(4), (b)(4), and (c)(4) (N=99).

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (d), (i), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    20. Add § 721.10868 to subpart E to read as follows:
    § 721.10868 Alkylalkenoic acid copolymer (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as alkylalkenoic acid copolymer (PMN P-15-136) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80 (f), (v)(1), (w)(1), and (x)(1).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c) and (i) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    21. Add § 721.10869 to subpart E to read as follows:
    § 721.10869 D-Glucitol, alkylamino-N-acyl derivs. (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as D-glucitol, alkylamino-N-acyl derivs. (PMN P-15-141) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90(a)(4), (b)(4), and (c)(4) (N=14).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    22. Add § 721.10870 to subpart E to read as follows:
    § 721.10870 Cyclohexanedicarboxylic acid, dialkyl ester (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as cyclohexanedicarboxylic acid, dialkyl ester (PMN P-15-150) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Release to water. Requirements as specified in § 721.90(a)(4), (b)(4), and (c)(4) (N=10).

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), and (k) are applicable to manufacturers and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    23. Add § 721.10871 to subpart E to read as follows:
    § 721.10871 Isocyanate prepolymer (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as isocyanate prepolymer (PMN P-15-221) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Protection in the workplace. Requirements as specified in § 721.63(a)(4), (a)(6)(ii), and (c). When determining which persons are reasonably likely to be exposed as required for § 721.63(a)(4), engineering control measures (e.g., enclosure or confinement of the operation, general and local ventilation) or administrative control measures (e.g., workplace policies and procedures) shall be considered and implemented to prevent exposure, where feasible. The following National Institute for Occupational Safety and Health (NIOSH)-certified respirators with an assigned protection factor (APF) of at least 10 meet the requirements of § 721.63(a)(4):

    (A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.

    (B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.

    (C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.

    (ii) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(o).

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (d) and (i) are applicable to manufacturers, importers, and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    24. Add § 721.10872 to subpart E to read as follows:
    § 721.10872 Heteropolycyclic, polymer with alkanedioic acid, di-alkenoate (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as heteropolycyclic, polymer with alkanedioic acid, di-alkenoate (PMN P-15-242) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Protection in the workplace. Requirements as specified in § 721.63(a)(1), (a)(2)(i), (a)(2)(iii), (a)(3), (a)(4), (a)(6)(ii), (a)(6)(v), and (c). When determining which persons are reasonably likely to be exposed as required for § 721.63(a)(1) and (a)(4), engineering control measures (e.g., enclosure or confinement of the operation, general and local ventilation) or administrative control measures (e.g., workplace policies and procedures) shall be considered and implemented to prevent exposure, where feasible. The following National Institute for Occupational Safety and Health (NIOSH)-certified respirators with an assigned protection factor (APF) of at least 10 meet the requirements of § 721.63(a)(4):

    (A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.

    (B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.

    (ii) Release to water. Requirements as specified 721.90 (a)(4), (b)(4), and (c)(4) (N=120).

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (d), (e) and (k) are applicable to manufacturers, importers, and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    25. Add § 721.10873 to subpart E to read as follows:
    § 721.10873 Methylene diisocyanate polymer with diols and triols (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as methylene diisocyanate polymer with diols and triols (PMN P-15-247) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Protection in the workplace. Requirements as specified in § 721.63(a)(4), (a)(6)(ii), and (c). When determining which persons are reasonably likely to be exposed as required for § 721.63(a)(4), engineering control measures (e.g., enclosure or confinement of the operation, general and local ventilation) or administrative control measures (e.g., workplace policies and procedures) shall be considered and implemented to prevent exposure, where feasible. The following National Institute for Occupational Safety and Health (NIOSH)-certified respirators with an assigned protection factor (APF) of at least 10 meet the requirements of § 721.63(a)(4):

    (A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.

    (B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.

    (C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.

    (ii) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80(o).

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c), (d) and (i) are applicable to manufacturers, importers, and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    26. Add § 721.10874 to subpart E to read as follows:
    § 721.10874 Polymer of isophorone diisocyanate and amine-terminated propoxylatedpolyol (generic).

    (a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as polymer of isophorone diisocyanate and amine-terminated propoxylatedpolyol (PMN P-15-278) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

    (2) The significant new uses are:

    (i) Industrial, commercial, and consumer activities. Requirements as specified in § 721.80. The significant new use is manufacture of the substance where the average molecular weight is below 2500 daltons and where any molecular weight species is below 1000 daltons.

    (ii) [Reserved]

    (b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph.

    (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125 (a), (b), (c) and (i) are applicable to manufacturers, importers, and processors of this substance.

    (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this section.

    [FR Doc. 2015-24846 Filed 10-1-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0246; FRL-9931-19-Region 9] Revisions to the California State Implementation Plan, Butte County Air Quality Management District, Feather River Air Quality Management District, and San Luis Obispo County Air Pollution Control District; Correcting Amendment AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule; correcting amendment.

    SUMMARY:

    On June 11, 2015, the Environmental Protection Agency (EPA) published a final rule in the Federal Register approving a revision to the Butte County Air Quality Management District (BCAQMD) portion of the California State Implementation Plan (SIP). In that rulemaking, the EPA indicated that final approval of the revision would supersede certain older rules in the California SIP but failed to include regulatory text to that effect. This document adds appropriate regulatory text to correct that omission, clarifying the specific regulations that were superseded and that are no longer part of the applicable California SIP, and adds a line of text identifying the affected air quality district that was missing in the original action.

    DATES:

    This action is effective on October 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Gong, EPA Region IX, (415) 972-3073, [email protected].

    SUPPLEMENTARY INFORMATION:

    This action corrects inadvertent errors in a rulemaking related to BCAQMD's SIP-approved definitions. On June 11, 2015 (80 FR 33195), the EPA published a direct final rulemaking action approving revisions to various sections of the California State Implementation Plan (SIP). This action contained regulatory text amendments to 40 CFR part 52, subpart F. The amendments, which incorporated material by reference into section 52.220, Identification of plan, paragraph (c)(457), omitted regulatory language that addressed the replacement of Butte County Air Pollution Control District (BCAPCD) Rule 101—“Title” and parts of BCAPCD Rule 102—“Definitions” with BCAQMD Rule 101—“Definitions” as described in Footnote 1 of 80 FR 33195. This action adds regulatory text to clarify the rules or portions of rules that were superseded in the Butte County AQMD portion of the California SIP by our June 11, 2015 direct final action.

    The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action is unnecessary because this action correcting inadvertent regulatory text errors included in the EPA's June 11, 2015 final rule is consistent with the substantive revision to the California SIP as described in the preamble of said action concerning definitions for the BCAQMD portion of the California SIP. In addition, the EPA can identify no particular reason why the public would be interested in having the opportunity to comment on the correction prior to this action being finalized, since this correction action does not change the EPA's analysis or overall action related to the approval of BCAQMD's revisions to their definitions into the California SIP.

    The EPA also finds that there is good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behaviour and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this action merely corrects inadvertent errors for the regulatory text of the EPA's prior rulemaking for the California SIP. For these reasons, the EPA finds good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action.

    Need for Correction

    As published, the final regulations omitted amendatory language that addressed the replacement of BCAQMD Rule 101.

    Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with State officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994).

    Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, the EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of this rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 14, 2015. Jared Blumenfeld, Regional Administrator, Region IX.

    Accordingly, 40 CFR part 52 is corrected by making the following correcting amendments:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for Part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by: a. Revising paragraph (c)(168)(i)(A)(7); and b. Revising paragraph (c)(457)(i)(C).

    The revised text reads as follows:

    § 52.220 Identification of plan.

    (c) * * *

    (168) * * *

    (i) * * *

    (A) * * *

    (7) Previously approved on February 3, 1987 in paragraph (c)(168)(i)(A)(1) of this section and now deleted with replacement in paragraph (c)(457)(i)(C)(1): Rule 101 “Title” and Rule 102 “Definitions”, except for the following definitions from existing SIP BCAPCD Rule 102: “approved ignition devices,” “open out-door fire”, “permissive burn day,” “range improvement burning,” “submerged fill pipe,” and “vapor recovery system.”.

    (457) * * *

    (i) * * *

    (C) Butte County Air Quality Management District.

    (1) Rule 101, “Definitions,” amended on April 24, 2014.

    [FR Doc. 2015-24953 Filed 10-1-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0513; FRL-9934-98-Region 7] Approval and Promulgation of Implementation Plans; State of Missouri, Limited Maintenance Plan for the St. Louis Nonclassifiable Maintenance Area for the 8-Hour Carbon Monoxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) submitted by the State of Missouri relating to the Limited Maintenance Plan for the St. Louis area for the 8-Hour Carbon Monoxide (CO) National Ambient Air Quality Standard (NAAQS). On April 8, 2014, the Missouri Department of Natural Resources (MDNR) submitted to EPA a second 10-year maintenance plan for the St. Louis area for the CO NAAQS. This maintenance plan addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation. In accordance with the requirements of the Clean Air Act (CAA), EPA is approving the revision because the State adequately demonstrates that the St. Louis Maintenance area will maintain air quality standards for CO through the year 2022.

    DATES:

    This direct final rule will be effective December 1, 2015, without further notice, unless EPA receives adverse comment by November 2, 2015. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0513, 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: Steven Brown, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219.

    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2015-0513. 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 docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. The Regional Office's official hours of business are Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding legal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Steven Brown, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7718 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 being addressed in this document? II. What is the background for this action? III. Have the requirements for approval of a SIP revision been met? IV. Evaluation of Missouri's Submittal V. Transportation and General Conformity VI. What action is EPA taking? I. What is being addressed in this document?

    The EPA is taking direct final action to approve revisions to the SIP submitted by the State of Missouri relating to the Limited Maintenance Plan for the St. Louis area for the 8-hour CO NAAQS.

    Eight years after an area is redesignated to attainment, CAA section 175A(b) requires the state to submit a subsequent maintenance plan to EPA, covering a second 10-year period. This maintenance plan must demonstrate continued compliance with the NAAQS during this second 10-year period.

    On April 8, 2014, the MDNR submitted to EPA a second 10-year maintenance plan for the St. Louis area for the CO NAAQS and requested that EPA approve this revision as meeting the CAA section 175A requirements. This maintenance plan addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation.

    This revision to Missouri's SIP does not have an adverse effect on air quality and EPA's approval of this SIP revision is being done in accordance with the requirements of the CAA.

    II. What is the background for this action?

    Under section 107(d)(1)(C) of the Act, any area designated before the date of enactment of the CAA Amendments of 1990 was to be designated upon enactment by operation of law. CO nonattainment areas that had not violated the CO standard in either year for the two-year period 1988-1989 were to be designated nonattainment and identified as “not classified” nonattainment areas. Accordingly, because the St. Louis area had not violated the standard in the 1988-1989 period, on November 6, 1991, the St. Louis area was designated nonattainment for the CO NAAQS and identified as “not classified” on November 6, 1991 (56 FR 56786).

    On June 13, 1997, the State requested EPA to redesignate the St. Louis nonattainment area to attainment and submitted a limited maintenance plan to demonstrate maintenance of the standard for a 10-year period. EPA published approval of the redesignation request and maintenance plan on January 26, 1999 (64 FR 3855). The State has maintained the standard since and recently submitted a second 10-year maintenance plan to EPA on April 8, 2014.

    An areas design value (DV) for the 8-hour CO NAAQS is calculated by finding the second maximum 8 hour average value at each monitor, for each year, for two years. The higher second maximum is used as the areas DV and the 8-hour CO standard is attained when the daily average 8-hour CO concentration of 9.0 parts per million (ppm) is not exceeded more than once a year.

    Since the redesignation of the St. Louis area to attainment for CO on January 26, 1999, the second highest concentration in any calendar year measured by the EPA approved monitoring network was 5.7 ppm, which is less than 9.0 ppm.

    In addition, areas that can demonstrate design values at or below 7.65 ppm (85 percent of the 9.0 ppm CO NAAQS) for 8 consecutive quarters may use a limited maintenance plan option. The State has opted to develop a limited maintenance plan to fulfill the second 10-year maintenance plan required by the CAA. The base year in the State's second 10-year maintenance plan is 2008, which has a design value of 2.8 ppm. EPA also reviewed air quality monitoring data (2011-2012) and the 8-hour CO design value for the St. Louis area is 1.8 ppm. Thus, the area is well below the 7.65 ppm (85 percent of the 9.0 ppm CO NAAQS) for 8 consecutive quarters and qualifies to use the limited maintenance plan option.

    III. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including Section 110 and implementing regulations.

    IV. Evaluation of Missouri's Submittal

    EPA has reviewed the St. Louis area second 10-year CO maintenance plan and concludes that the submittal meets the requirements of section 175A(b) of the Act. The following is a summary of the requirements and EPA's evaluation of how each requirement is met.

    A. Base Year Emissions Inventory

    The plan must contain an attainment year emissions inventory to identify a level of emissions in the area which is sufficient to attain the CO NAAQS. The St. Louis area second 10-year CO maintenance plan contains an emissions inventory for the base year 2008 that is consistent with EPA's most recent guidance on maintenance plan emission inventories. The emissions inventory is a list, by source, of the air contaminants directly emitted into the St. Louis area. The data in the emissions inventory is based on calculations using emission factors, which is a method for converting source activity levels into an estimate of emissions contributions for those sources. Because violations of the CO NAAQS are most likely to occur on winter weekdays, the inventory prepared is in a “typical winter day” format. The table below shows the tons of CO emitted per winter day in 2008 by source category.

    County Source category CO
  • Emissions
  • (tons per winter day)
  • St. Louis Point Sources 17.26 St. Louis Area Sources 70.26 St. Louis On Road Mobile 532.42 St. Louis Off Road Mobile 250.48 St. Louis Total 870.42
    B. Demonstration of Maintenance

    The maintenance plan demonstration requirement is considered to be satisfied for areas using the limited maintenance plan option, which are required to demonstrate design values at or below 7.65 ppm (85 percent of the 9.0 ppm CO NAAQS) for 8 consecutive quarters. The State has opted to develop a limited maintenance plan to fulfill the St. Louis area second 10-year maintenance plan required by the CAA.

    With the limited maintenance plan option, there is no requirement to project emissions of air quality over the maintenance period. EPA believes that if the area begins the maintenance period at, or below, 85 percent of the 9.0 ppm of the CO 8-hour NAAQS, the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and Federal measures, should provide adequate assurance of maintenance over the 10-year maintenance period. The last monitored exceedance occurred in 1994 and previous to that, 1987. The St. Louis area met the requirements for the Limited Maintenance Plan option in the original redesignation and maintenance plan approval in 1999. The design value at that time (1994-1995) was 5.7 ppm and the monitored CO levels have been steadily in decline ever since. The 8-hour CO design value for the St. Louis area is 1.8 ppm based on 2011-2012 data, which is below the limited maintenance plan requirement of 7.65 ppm. Therefore, the St. Louis area has adequately demonstrated that it will maintain the CO NAAQS into the future.

    C. Monitoring Network and Verification of Continued Attainment

    To verify the attainment status of the area over the maintenance period, the maintenance plan should contain provisions for continued operation of an appropriate, EPA-approved monitoring network in accordance with 40 CFR part 58. The State has an approved monitoring network that includes the St. Louis area. The monitoring network was most recently approved by EPA on October 23, 2014. In the St. Louis second 10-year CO maintenance plan, MDNR commits to verify continued attainment through the EPA-approved monitoring network in accordance with 40 CFR part 58.

    D. Contingency Plan

    Section 175A(d) of the Act requires that a maintenance plan include contingency provisions. The St. Louis second 10-year CO limited maintenance plan contains a contingency plan that would institute lowering CO limits on existing rules that control CO emissions. The contingency plan is triggered either when (Level I) an exceedance of the 8 hour CO standard is recorded on any monitor, or (Level II) when a violation occurs at any monitor CO monitoring stations in the nonattainment area. EPA finds that the contingency measures provided in the maintenance plan are adequate to ensure prompt correction of a violation.

    V. Transportation and General Conformity

    Transportation conformity is required by section 176(c) of the CAA. EPA's conformity rule requires that transportation plans, programs, and projects that are funded under 23 U.S.C. or the Federal Transit Act conform to SIPs. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. The transportation conformity rule (40 CFR parts 51 and 93) and the general conformity rule (40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area. While EPA's limited maintenance plan option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting an emissions budget. Under the limited maintenance plan option, emissions budgets are essentially treated as not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the CO NAAQS would result. Similarly, Federal actions subject to the general conformity rule could be considered to satisfy the “budget test” specified in section 93.158(a)(5)(i)(A) for the same reasons that the budgets are essentially considered to be unlimited. While areas with maintenance plans approved under the limited maintenance plan option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the State must document and ensure that:

    a. Transportation plans and projects provide for timely implementation of SIP transportation control measures in accordance with 40 CFR 93.113;

    b. Transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108;

    c. The MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105;

    d. Conformity of transportation plans is determined no less frequently than every four years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;

    e. The latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;

    f. Projects do not cause or contribute to any new localized CO or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and

    g. Project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.

    The MPO and lead transportation agency in St. Louis is the East-West Gateway Council of Governments (EWG). EWG oversees transportation conformity determinations of the Interagency Consultation Committee established in Missouri Administrative Rule 10 CSR 10-5.480, which includes MDNR, the Missouri Transportation Department, the Federal Highway Administration, Federal Transit Administration, City of St. Louis Department of Health, St. Louis County Department of Health, St. Louis County Department of Highways and the EPA; as specified under 40 CFR part 93. St. Louis is currently meeting the requirements under 40 CFR part 93, subpart A.

    VI. What action is EPA taking?

    EPA is taking direct final action to approve this SIP revision. We are publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to approve this SIP revision, if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

    Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 21, 2015. Mark Hague, Acting Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart AA—Missouri 2. Section 52.1320(e) is amended by adding new entry (67) at the end of the table to read as follows:
    § 52.1320 Identification of plan.

    (e) * * *

    EPA-APPROVED MISSOURI NONREGULATORY SIP PROVISIONS Name of nonregulatory SIP provision Applicable
  • geographic area or Nonattainment area
  • State submittal date EPA approval date Explanation
    *         *         *         *         *         *         * (67) Missouri 8-Hour CO Second Ten year Limited Maintenance Plan. St. Louis 4/8/14 10/2/15, [Insert Federal Register citation] EPA-R07-OAR-2015-0513; FRL-9934-98-Region 7]
    [FR Doc. 2015-25037 Filed 10-1-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0470; FRL-9934-91-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Pennsylvania; Approval of the Base Year Emissions Inventory for the Liberty-Clairton Nonattainment Area for the 2006 24-Hour Fine Particulate Matter Standard and Approval of Transportation Conformity Insignificance Findings for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standards for the Liberty-Clairton Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve two revisions to the Commonwealth of Pennsylvania (Pennsylvania) State Implementation Plan (SIP). The first revision consists of the 2007 base year emissions inventory for the Liberty-Clairton nonattainment area (hereafter “the Liberty-Clairton Area” or “the Area”) with respect the 2006 24-hour fine particulate matter (PM2.5) National Ambient Air Quality Standard (NAAQS or standard). The second revision consists of insignificance findings for the mobile source contribution of PM2.5 and nitrogen oxides (NOX) emissions for the Liberty-Clairton Area for both the 1997 annual and 2006 24-hour PM2.5 standards. EPA is approving the 2007 base year emissions inventory for the Liberty-Clairton Area for the 2006 24-hour PM2.5 NAAQS. Furthermore, EPA is finding the motor vehicle emission inventories adequate for transportation conformity purposes and is approving the insignificance findings for the mobile source contribution of PM2.5 and NOX emissions for the Liberty-Clairton Area for both the 1997 annual and 2006 24-hour PM2.5 standards. EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This rule is effective on December 1, 2015 without further notice, unless EPA receives adverse written comment by November 2, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R03-OAR-2015-0470 by one of the following methods:

    A. www.regulations.gov. Follow the on-line instructions for submitting comments.

    B. Email: [email protected].

    C. Mail: EPA-R03-OAR-2015-0470, Cristina Fernandez, Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

    D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2015-0470. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105; and at the Allegheny County Health Department, Bureau of Environmental Quality, Division of Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 15201.

    FOR FURTHER INFORMATION CONTACT:

    Emlyn Vélez-Rosa, (215) 814-2038, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    On June 21, 2013, the Commonwealth Pennsylvania submitted, on behalf of Allegheny County, a formal revision to its SIP. The SIP revision consisted of the 2006 24-hour PM2.5 NAAQS attainment plan for the Liberty-Clairton Area, which included among other things, an attainment demonstration, a 2007 base year emissions inventory, a reasonably available control measures (RACM) analysis, and a description of contingency measures. On July 31, 2014, the SIP revision was supplemented to include additional information regarding control measures as part of the attainment demonstration and insignificance findings for transportation conformity purposes for both the 1997 and 2006 24-hour PM2.5 NAAQS.

    Today's action only pertains to the approval of the 2007 base year emissions inventory to satisfy the requirement of section 172(c)(3) of the CAA and the transportation conformity insignificance findings to satisfy EPA's requirements at 40 CFR 93.118(e)(4) and 40 CFR 93.109(f).

    I. Background

    On July 16, 1997, EPA established an annual PM2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m3) (hereafter referred to as “the 1997 annual PM2.5 NAAQS”), based on a 3-year average of annual mean PM2.5 concentrations (62 FR 38652, July 18, 1997). At that time, EPA also established a 24-hour standard of 65 μg/m3 (hereafter referred to as “the 1997 24-hour PM2.5 NAAQS”). See 40 CFR 50.7. The 1997 PM2.5 standards were based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to particulate matter.

    On January 5, 2005 (70 FR 944), EPA published its nonattainment area designations for the 1997 annual PM2.5 NAAQS based upon air quality monitoring data for calendar years 2001-2003. These designations, effective on April 5, 2005, included the Liberty-Clairton Area as a nonattainment area. The Liberty-Clairton Area for the 1997 annual PM2.5 NAAQS is comprised of the following portion of Allegheny County: The boroughs of Lincoln, Glassport, Liberty, and Port Vue and the City of Clairton. See 40 CFR 81.339 (Pennsylvania). The Liberty-Clairton Area is surrounded by, but separate and distinct from, the Pittsburgh-Beaver Valley PM2.5 nonattainment area.

    On September 21, 2006, EPA retained the 1997 annual PM2.5 NAAQS at 15.0 μg/m3 (hereby “the 2006 annual PM2.5 NAAQS”) based on a 3-year average of annual mean PM2.5 concentrations, and promulgated a new 24-hour standard of 35 μg/m3 (hereafter “the 2006 24-hour PM2.5 NAAQS”) based on a 3-year average of the 98th percentile of 24-hour concentrations (71 FR 61144, October 17, 2006). The revised 2006 24-hour PM2.5 standard became effective on December 18, 2006. See 40 CFR 50.13. The more stringent 2006 24-hour PM2.5 NAAQS is based on significant evidence and numerous health studies demonstrating that serious health effects are associated with short-term exposures to PM2.5 at this level.

    Many petitioners challenged aspects of EPA's 2006 revisions to the PM2.5 NAAQS. See American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). As a result of this challenge, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded the 2006 annual PM2.5 NAAQS to EPA for further proceedings. The 2006 24-hour PM2.5 NAAQS was not affected by the remand and remains in effect.

    On November 13, 2009, EPA published designations for the 2006 24-hour PM2.5 NAAQS (74 FR 58688). These designations, effective on December 14, 2009, included the Liberty-Clairton Area as a nonattainment area for the 2006 24-hour PM2.5 NAAQS, retaining the same geographical boundaries as for the 1997 annual PM2.5 NAAQS. See 40 CFR 81.339 (Pennsylvania).

    A nonattainment designation under the CAA triggers additional planning requirements for states to show attainment of the NAAQS in the nonattainment areas by a statutory attainment date, as specified in the CAA. Since 2005, EPA had implemented the 1997 and 2006 PM2.5 NAAQS based on the general implementation provisions of subpart 1 of Part D of Title I of the CAA (subpart 1). On January 4, 2013, in Natural Resources Defense Council v. EPA (NRDC v. EPA), the DC Circuit determined that EPA should be implementing its PM2.5 pollution standard under additional CAA requirements than those EPA had been following in subpart 1 and remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (1997 PM2.5 Implementation Rule) (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (2008 NSR PM2.5 Rule).1 706 F.3d 428 (D.C. Cir. 2013). The DC Circuit found that the EPA erred in implementing the 1997 annual PM2.5 NAAQS solely pursuant to subpart 1, without consideration of the particulate matter specific provisions of subpart 4 of Part D of Title I of the CAA (subpart 4).

    1 EPA's 2008 NSR PM2.5 Rule relates to requirements for the NSR permitting program required by parts C and D of title I of the CAA. The details and provisions of the 2008 NSR PM2.5 Rule are not relevant to this rulemaking.

    While the regulatory provisions of EPA's 1997 PM2.5 Implementation Rule do not explicitly apply to the 2006 24-hour PM2.5 NAAQS, EPA's underlying statutory interpretation has been the same for both standards. On March 2, 2012, EPA provided implementation guidance for the 2006 24-hour PM2.5 NAAQS which reaffirmed and continued the framework and policy approaches of the 1997 PM2.5 Implementation Rule. On June 6, 2013, EPA withdrew the implementation guidance for the 2006 24-hour PM2.5 NAAQS, subsequent to the DC Circuit's decision in NRDC v. EPA. 2

    2 EPA's June 6, 2013 withdrawal memorandum is available at http://www.epa.gov/ttn/naaqs/pm/pdfs/implementationguidancewithdrawmemo.pdf.

    Although the DC Circuit declined to establish a deadline for EPA's response, EPA intends to respond promptly to the Court's remand and to promulgate new generally applicable implementation regulations for the PM2.5 NAAQS in accordance with the requirements of subparts 1 and 4. In the interim, however, states and EPA still need to proceed with implementation of the PM2.5 NAAQS in a timely and effective fashion in order to meet statutory obligations under the CAA and to assure the protection of public health intended by those NAAQS.

    The statutory provisions in subpart 4 require EPA, among other things, to classify nonattainment areas for the PM2.5 NAAQS based on the severity of their pollution problem. Under EPA's prior approach to implementing the 1997 annual and 2006 24-hour PM2.5 standards according to subpart 1, EPA was not required to, and thus did not, identify any classifications for areas designated nonattainment. In contrast, subpart 4 of the CAA, at section 188, provides that all areas designated nonattainment are initially classified “by operation of law” as “Moderate” nonattainment areas, and they remain classified as Moderate nonattainment areas unless and until EPA later reclassifies them as Serious nonattainment areas or EPA determines that an area has not attained the PM2.5 NAAQS by the area's applicable attainment date.

    On April 25, 2014, EPA finalized a rule identifying the classification of all PM2.5 areas currently designated nonattainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS as “Moderate,” consistent with subpart 4 of the CAA. See 79 FR 31566 (June 2, 2014). Consequently, the Liberty-Clairton Area was classified as Moderate for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

    On July 10, 2015 (80 FR 39696), EPA determined that the Liberty-Clairton Area had attained the 2006 24-hour PM2.5 NAAQS, based on quality-assured and certified ambient air quality data for the 2012-2014 monitoring period. This “clean data determination” suspended Pennsylvania's obligations to submit for the Liberty-Clairton Area an attainment demonstration, reasonably available control measures (RACM), reasonable further progress (RFP), and contingency measures for the 2006 24-hour PM2.5 NAAQS pursuant to subparts 1 and 4 of the CAA, for so long as the Area continues to attain the standard.

    EPA incorporated its Clean Data Policy interpretation in both its 8-Hour Ozone Implementation Rule in 40 CFR 51.918 and in its 1997 PM2.5 Implementation Rule in 40 CFR 51.1004(c). See 72 FR 20585, 20665 (April 25, 2007). While the DC Circuit in its January 4, 2013 decision remanded the 1997 PM2.5 Implementation Rule, the Court did not address the merits of that regulation regarding our Clean Data Policy in 40 CFR 51.1004(c), nor cast any doubt on EPA's existing interpretation of the statutory provisions for the Clean Data Policy.3

    3 EPA addressed the effects of a final determination of attainment under the Clean Data Policy for the Liberty-Clairton Area as a 2006 24-hour PM2.5 moderate nonattainment area under subpart 4 in the notice of proposed rulemaking for the Area's determination of attainment. See 80 FR 22666 (April 23, 2015).

    After EPA's final clean data determination for the Liberty-Clairton Area for the 2006 24-hour PM2.5 NAAQS, effective on August 10, 2015, the only pending statutory requirement for the Area relates to emissions inventories pursuant to section 172(c)(3) of subpart 1 of the CAA. Specifically, section 172(c)(3) of the CAA requires states to submit a comprehensive, accurate, and current inventory of actual emissions for each nonattainment area. EPA's requirements for an emissions inventory for the PM2.5 NAAQS are set forth in 40 CFR 51.1008.

    II. Summary of SIP Revision

    As discussed earlier, the Liberty-Clairton's base year emissions inventory was submitted by Pennsylvania Department of the Environmental Protection (PADEP), on behalf of Allegheny County Health Department (ACHD), as part of the June 21, 2013 SIP revision to demonstrate attainment of the 2006 24-hour PM2.5 NAAQS for the Liberty-Clairton Area. The June 21, 2013 SIP revision was amended on July 31, 2015 to include, among other things, the transportation conformity insignificance findings for both the 1997 annual and 2006 24-hour PM2.5 NAAQS. In this rulemaking action, EPA is only acting on the portions of the submittals corresponding to the 2007 base year emissions inventory and the transportation conformity insignificance findings. A brief summary of the SIP revisions is provided in this section.

    A. Base Year Emissions Inventory

    The 2007 base year emissions inventory for the Liberty-Clairton Area intends to satisfy the requirements of section 172(c)(4) of the CAA for the 2006 24-hour PM2.5 NAAQS. The 2007 base year emissions inventory includes emissions estimates that cover the general source categories of point sources, area sources, non-road mobile sources, and on-road mobile sources. The pollutants that comprise the inventory are NOX, volatile organic compounds (VOC), PM2.5, coarse particles (PM10), ammonia, and sulfur dioxide (SO2). ACHD selected 2007 as the base year for the emissions inventory, in accordance with 40 CFR 51.1008(b).

    The 2007 emissions inventory submitted is the most current accurate and comprehensive actual emissions inventory of direct PM2.5, PM10, NOX, SO2, VOC, and ammonia for the Liberty-Clairton Area with respect the 2006 24-hour PM2.5 NAAQS. The actual emissions were estimated based on pollutant emission factors and throughputs or capacities of each emission source. A summary of the Liberty-Clairton's 2007 base year emissions inventory is provided in Table 1.

    Table 1—2007 Base Year Emissions Inventory for the Liberty-Clairton Area for the 2006 24-hour PM2.5 NAAQS [Tons/Year] PM2.5 PM10 SO2 NOX VOC Ammonia Point Sources 946.6 1136.9 1741.3 4841.9 590.5 18.4 Area Sources 26.3 50.5 50.1 38.8 255.9 4.2 Nonroad Sources 15.0 15.9 17.2 437.9 86.6 0.2 Mobile Sources 9.9 10.4 2.1 274.3 172.5 4.7 Totals 997.8 1213.8 1810.9 5592.9 1105.6 27.5

    EPA has reviewed the procedures and methodologies used by ACHD for the 2007 base year emissions inventory submitted as part of the June 21, 2013 SIP revision and finds the inventory approvable. Further analysis of the emissions inventory development can be found in technical support document (TSD) dated August 12, 2015 included as part of the docket for this rulemaking action.

    B. Transportation Conformity Insignificance Determinations

    Transportation conformity is required under section 176(c) of the CAA to ensure that federally supported highway, transit projects, and other activities are consistent with (conform to) the purpose of the SIP. The CAA requires federal actions in nonattainment and maintenance areas to “conform to” the goals of SIP. This means that such actions will not cause or contribute to violations of a NAAQS; worsen the severity of an existing violation; or delay timely attainment of any NAAQS or any interim milestone. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the Transportation Conformity Rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, EPA, FHWA, and FTA to demonstrate that their metropolitan transportation plans and transportation improvement plans (TIPs) conform to applicable SIPs. This is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (MVEBs) contained in a SIP.

    For MVEBs to be approvable, they must meet, at a minimum, EPA's adequacy criteria found at 40 CFR 93.118(e)(4). However, the Transportation Conformity Rule at 40 CFR 93.109(f) allows areas to forgo establishment of a budget(s) where it is demonstrated that regional motor vehicle emissions for a particular pollutant or precursor pollutant are an insignificant contributor to the air quality problem in the area. The general criteria for insignificance determinations per 40 CFR 93.109(f) are based on a number of factors, including: (1) The percentage of motor vehicle emissions in context of the total SIP inventory; (2) the current state of air quality as determined by monitoring data for that NAAQS; (3) the absence of SIP motor vehicle control measures; and (4) historical trends and future projections of the growth of motor vehicle emissions in the area.

    The Liberty-Clairton's attainment demonstration for the 2006 24-hour PM2.5 NAAQS submitted by the Commonwealth of Pennsylvania, on behalf of Allegheny County, includes a request for EPA to make insignificance findings for NOX and directly emitted PM2.5 for the Area for both the 1997 annual and 2006 24-hour PM2.5 NAAQS. Pursuant to Section 93.118(e)(4) and 93.109(f) of the Transportation Conformity Rule, EPA has reviewed the Commonwealth of Pennsylvania's justification for the findings of insignificance for direct PM2.5 and also for NOX as a precursor of PM2.5 in the Liberty-Clairton Area for both the 1997 annual and 2006 24-hour PM2.5 NAAQS. EPA agrees with Pennsylvania's conclusion that on-road emissions of PM2.5 and NOX in the Liberty-Clairton Area are insignificant for transportation conformity purposes for both NAAQS.

    EPA bases these findings on several factors: (1) The fact that the motor vehicle emissions constitute a low percentage of the total SIP inventory. In particular, for the 2007 base year, the direct PM onroad mobile source constitutes 0.99 percent (%) of the Liberty-Clairton Area's total PM2.5 emissions and decreases in the later analysis year to 0.88% (2014). For the 2007 base year, the NOX onroad mobile source constitutes 4.9% of the Area's total NOX emissions and decreases in the later analysis year to 3.07% (2014); (2) The fact that the Liberty-Clairton Area has been determined to attain the 1997 annual PM2.5 standard (October 25, 2013, 78 FR 63881) and the 2006 24-hour PM2.5 standard (July 10, 2015, 80 FR 39696), and continues to attain the standards with the most recent three years of complete, quality-assured monitoring data; (3) The absence of local on-road control measures; and (4) The continued downward trend, historically and in modeled future projections, of on-road NOX and PM2.5 emissions.

    With regard to on-road emissions of SO2, VOC, and ammonia, Allegheny County did not provide an insignificance demonstration because it concluded, consistent with EPA's presumptions regarding these PM2.5 precursors, that the emissions of these precursors from motor vehicles are not significant contributors to the Liberty-Clairton Area's PM2.5 air quality problem. Therefore, EPA finds adequate, and is also approving as SIP revision, Pennsylvania's insignificance determinations for the Liberty-Clairton Area with respect both the 1997 annual and 2006 24-hour PM2.5 standards. Additional information pertaining to the review of the motor vehicle emission inventories can be found in the TSD dated August 27, 2015, as part of the docket for this final rulemaking action.

    In this direct final rulemaking action, EPA is initiating the process for determining whether or not the motor vehicle emission inventories are adequate for transportation conformity purposes. The publication of this document starts a 30-day public comment period on the adequacy of the submitted motor vehicle emission inventories. This comment period is concurrent with the comment period on this direct final rulemaking action. Any comments on the motor vehicle emission inventories should be submitted to the docket for this rulemaking. The public can find the posting of these motor vehicle emissions inventories on EPA's adequacy Web page (http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm). The adequacy of the motor vehicle emission inventories as well as the approval of the findings of insignificance will become effective upon the effective date of this direct final rulemaking action. Upon the effective date of this direct final rulemaking action, the Liberty-Clairton Area is no longer required to perform a regional emissions analysis for directly emitted PM2.5, or NOX, as part of future PM2.5 conformity determinations for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

    III. Final Action

    EPA is approving as a revision to the Pennsylvania SIP the Liberty-Clairton Area's 2007 base year emissions inventory for the 2006 24-hour PM2.5 NAAQS submitted as part of the June 21, 2013 SIP revision. EPA finds that the 2007 base year emissions inventory satisfies the requirements of 40 CFR 51.1008 and section 172(c)(3) of the CAA for the 2006 24-hour PM2.5 NAAQS for the Liberty-Clairton Area. EPA finds adequate and is also approving as a revision to the SIP Pennsylvania's determinations for both the 1997 annual and 2006 24-hour PM2.5 standards that onroad emissions of PM2.5 and NOX are insignificant contributors to PM2.5 concentrations in the Liberty-Clairton Area for transportation conformity purposes, as submitted as part of the July 31, 2014 supplemental SIP revision. Upon the effective date of this direct final rulemaking action, the Liberty-Clairton Area is no longer required to perform a regional emissions analysis for directly emitted PM2.5, or NOX, as part of future PM2.5 conformity determinations for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

    EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 1, 2015 without further notice unless EPA receives adverse comment by November 2, 2015. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    IV. Statutory and Executive Order Reviews A. General Requirements

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

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 application of those requirements would be inconsistent with the CAA; and

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

    In addition, this rule 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.

    B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action, approving the 2007 base year emissions inventory for the Liberty-Clairton Area with respect the 2006 24-hour PM2.5 NAAQS and the transportation conformity insignificance findings for the Liberty-Clairton Area with respect the 1997 annual and 2006 24-hour PM2.5 NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Sulfur oxides, Volatile organic compounds.

    Dated: September 16, 2015. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by adding an entry for the 2007 Base Year Emissions Inventory for the 2006 PM2.5 NAAQS for the Liberty-Clairton PM2.5 Nonattainment Area at the end of the table to reads as follows:
    § 52.2020 Identification of plan.

    (e) * * *

    (1) * * *

    Name of
  • non-regulatory
  • SIP revision
  • Applicable geographic area State submittal date EPA approval date Additional
  • explanation
  • *         *         *         *         *         *         * 2007 Base Year Emissions Inventory for the 2006 PM2.5 NAAQS Liberty-Clairton PM2.5 Nonattainment Area 6/21/13 10/2/15 [Insert Federal Register citation]
    3. Section 52.2036 is amended by adding paragraph (y) to read as follows:
    § 52.2036 Base year emissions inventory.

    (y) EPA approves as a revision to the Pennsylvania State Implementation Plan the 2007 base year emissions inventory for the Liberty-Clairton 2006 24-hour PM2.5 nonattainment area submitted by the Pennsylvania Department of Environmental Protection, on behalf of Allegheny County Health Department, on June 21, 2013. The emissions inventory includes emissions estimates that cover the general source categories of point, area, nonroad, and onroad sources. The pollutants that comprise the inventory are PM2.5, NOX, VOCs, NH3, and SO2.

    [FR Doc. 2015-24877 Filed 10-1-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2014-0916; FRL-9934-83-Region 8] Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to South Dakota Administrative Code AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving State Implementation Plan (SIP) revisions submitted by the State of South Dakota on July 29, 2013. This SIP submission revises the Administrative Rules of South Dakota (ARSD) Article 74:36—Air Pollution Control Program. These revisions include renumbering, revisions to the date of incorporation by reference of the federal regulations referenced throughout ARSD Article 74:36, and removal of obsolete language regarding variance provisions and clean units. EPA is also clarifying a final rule issued on January 29, 2015 pertaining to South Dakota's infrastructure SIP. This action is being taken in accordance with section 110 of the Clean Air Act (CAA).

    DATES:

    This final rule is effective on November 2, 2015.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification Number EPA-R08-OAR-2014-0916. All documents in the docket are listed on the http://www.regulations.gov index. Although listed in the index, some information may not be publicly available, e.g., Confidential Business Information 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 through http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Adam Clark, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    South Dakota's July 29, 2013 submittal covers the following rule changes: (1) Removal of obsolete language regarding variance provisions and clean units, and renumbering to reflect the deletions; and (2) Revisions to the date of federal regulations referenced throughout ARSD Article 74:36 to July 1, 2012. A cross-walk table that identifies EPA's action on South Dakota's revisions is included in the docket for this rulemaking.

    South Dakota's July 29, 2013 submittal also requests EPA approval of rule revisions for provisions that are not required to be included in SIPs under section 110 of the CAA, most notably additions to the State's New Source Performance Standards, National Emissions Standards for Hazardous Air Pollutants and Title V permitting. These revisions, on which EPA is not taking action, are outlined in the cross-walk table located in the docket for this rulemaking.

    II. What action is EPA taking?

    EPA is finalizing action on South Dakota's July 29, 2013 submittal as outlined in Section III. of the proposal published on July 14, 2015, with one exception; EPA's proposed approval of South Dakota's updates to 74:36:05, “Operating Permits for Part 70 Sources,” as part of its July 14, 2015 action (80 FR 40953). EPA published a notice of correction of the proposal on August 24, 2015 (80 FR 51152), because CAA Title V requirements are not subject to Section 110 of the Clean Air Act and are thus not required to be incorporated into a SIP. Therefore, EPA is not taking any action on South Dakota's updates to 74:36:05.

    III. Clarification of January 29, 2015 Final Action

    Under CAA sections 110(a)(1) and (2), states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance, and enforcement of the National Ambient Air Quality Standards (NAAQS). On January 29, 2015, EPA took final action on the infrastructure submittals which addressed several different NAAQS from the State of South Dakota (80 FR 4799). As part of the January 29, 2015 action, EPA approved South Dakota's 1997 PM2.5 NAAQS interstate transport infrastructure sub-element (CAA section 110(a)(2)(D)(i)(II)). However, EPA had already approved this sub-element in a final rulemaking on May 8, 2008 (73 FR 26019, effective July 7, 2008). Therefore, in this action EPA is clarifying that no action was required on this sub-element for this NAAQS in the January 29, 2015 approval of CAA section 110(a)(2)(D)(i)(II) for the 1997 PM2.5 NAAQS and the effective date of approval remains July 7, 2008.

    IV. Response to Comments

    EPA received one comment on the July 14, 2015 proposal with respect to air quality measurements. EPA acknowledges this comment but does not consider the comment to be relevant to the proposed action.

    V. Summary of Action

    In this rulemaking, EPA is approving most remaining portions of South Dakota's July 29, 2013 submittal as outlined in the crosswalk table located in the docket for this action. EPA is not taking action on certain portions of this submittal as described in the proposed rulemaking and the notice of correction to the proposal. Finally, EPA is also clarifying no action was required in the January 29, 2015 final action (80 FR 4799) regarding the effective date of approval for South Dakota's SIP regarding CAA section 110(a)(2)(D)(i)(II) for the 1997 PM2.5 NAAQS as EPA had already approved this sub-element in a prior rulemaking.

    VI. Incorporation by Reference

    In this rulemaking, EPA is including final EPA rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is incorporating by reference the rules in ARSD Article 74:36 submitted by South Dakota for action which are identified within this notice of rulemaking. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this rule's preamble for more information).

    VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 9, 2015. Debra H. Thomas, Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart QQ—South Dakota 2. In § 52.2170, the table in paragraph (c)(1) is amended by: a. Revising entries for “74:36:01:01”; “74:36:02:02”, “74:36:02:03”, “74:36:02:04”, “74:36:02:05”; and “74:36:04:04”; b. Adding an entry for “74:36:04:05” in numerical order; c. Revising entries for “74:36:04:12” and “74:36:04:13”; d. Adding an entry for “74:36:04:14” in numerical order; e. Revising entries for “74:36:04:15”; “74:36:11:01”; and “74:36:12:01”; f. Adding an entry for “74:36:12:02” in numerical order; and g. Revising entries for “74:36:12:03”; “74:36:13:02”, “74:36:13:03”, “74:36:13:04”, “74:36:13:06”, “74:36:13:07”, “74:36:13:08”; “74:36:18:04”, “74:36:18:05”, “74:36:18:06”, “74:36:18:10”, “74:36:18:11”, “74:36:18:12”; “74:36:20:05”, “74:36:20:11”, “74:36:20:13”, “74:36:20:14”, “74:36:20:15”; “74:36:21:02”, “74:36:21:04”, “74:36:21:05”, and “74:36:21:09”.

    The revisions and additions read as follows:

    § 52.2170 Identification of plan.

    (c) * * *

    (1) * * *

    State citation Title/subject State effective date EPA approval date and citation 1 Explanations *         *         *         *         *         *         * 74:36:01 Definitions 74:36:01:01 Definitions 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:02 Ambient Air Quality 74:36:02:02 Ambient air quality standards 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:02:03 Methods of sampling and analysis 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:02:04 Air quality monitoring network 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:02:05 Air quality monitoring requirements 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:04 Operating Permits for Minor Sources *         *         *         *         *         *         * 74:36:04:04 Standard for issuance of a minor source operating permit 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:04:05 Time period for operating permits and renewals 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:04:12 Public participation in permitting process 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:04:13 Final permit decision—Notice to interested persons 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:04:14 Right to petition for contested case hearing 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:04:15 Contents of operating permit 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:11Performance Testing 74:36:11:01 Stack performance testing or other testing methods 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:12 Control of Visible Emissions 74:36:12:01 Restrictions on visible emissions 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:12:02 Exceptions to restrictions 6/25/2013 10/2/2015, [insert Federal Register citation] Except for 74:36:12:02(3) 74:36:12:03 Exceptions granted to alfalfa pelletizers or dehydrators 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:13 Continuous Emission Monitoring Systems 74:36:13:02 Minimum performance specifications for all continuous emission monitoring systems 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:13:03 Reporting requirements 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:13:04 Notice to department of exceedance 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:13:06 Compliance certification 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:13:07 Credible evidence 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:13:08 Compliance assurance monitoring 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:18 Regulations for State Facilities in the Rapid City Area *         *         *         *         *         *         * 74:36:18:04 Time period for permits and renewals 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:18:05 Required contents of a complete application for a permit 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:18:06 Contents of permit 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:18:10 Visible emission limit for construction and continuous operation activities 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:18:11 Exception to visible emission limit 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:18:12 Notice of operating noncompliance—Contents 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:20 Construction Permits for New Sources or Modifications *         *         *         *         *         *         * 74:36:20:05 Standard for issuance of construction permit 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:20:11 Public participation in permitting process 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:20:13 Final permit decision—Notice to interested persons 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:20:14 Right to petition for contested case hearing 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:20:15 Contents of construction permit 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:21 Regional Haze Program *         *         *         *         *         *         * 74:36:21:02 Definitions 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:21:04 Visibility impact analysis 6/25/2013 10/2/2015, [insert Federal Register citation] 74:36:21:05 BART determination 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 74:36:21:09 Monitoring, recordkeeping, and reporting 6/25/2013 10/2/2015, [insert Federal Register citation] *         *         *         *         *         *         * 1 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.
    [FR Doc. 2015-24857 Filed 10-1-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2015-0029; FRL-9934-82-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation Request and Associated Maintenance Plan for the Pittsburgh-Beaver Valley Nonattainment Area for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving the Commonwealth of Pennsylvania's request to redesignate to attainment the Pittsburgh Nonattainment Area (Pittsburgh Area or Area) for the 1997 annual and 2006 24-hour fine particulate matter (PM2.5) national ambient air quality standard (NAAQS or standard). EPA has determined that the Pittsburgh Area attained both the 1997 annual and 2006 24-hour PM2.5 NAAQS. In addition, EPA is approving as a revision to the Pennsylvania State Implementation Plan (SIP) the associated maintenance plan to show maintenance of the 1997 annual and 2006 24-hour PM2.5 NAAQS through 2025 for the Pittsburgh Area. The maintenance plan includes the 2017 and 2025 PM2.5 and nitrogen oxides (NOX) motor vehicle emissions budgets (MVEBs) for the Pittsburgh Area for the 1997 annual and 2006 24-hour PM2.5 NAAQS, which EPA is approving for transportation conformity purposes. Furthermore, EPA is approving the 2007 emissions inventories for the 1997 annual PM2.5 NAAQS and the 2011 emissions inventories for the 2006 24-hour PM2.5 NAAQS included in the maintenance plan for the Pittsburgh Area. These actions are being taken under the Clean Air Act (CAA).

    DATES:

    This final rule is effective on October 2, 2015.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0029. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

    FOR FURTHER INFORMATION CONTACT:

    Rose Quinto at (215) 814-2182, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    I. Background

    On December 22, 2014, the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), formally submitted a request to redesignate the Pittsburgh Area from nonattainment to attainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS. Concurrently, PADEP submitted a maintenance plan for the Pittsburgh Area as a SIP revision to ensure continued attainment throughout the Pittsburgh Area over the next 10 years. The maintenance plan includes the 2017 and 2025 PM2.5 and NOX MVEBs for the Area for the 1997 annual and 2006 24-hour PM2.5 NAAQS, which EPA is approving for transportation conformity purposes. PADEP also submitted 2007 and 2011comprehensive emissions inventories that were included in the maintenance plan for the 1997 annual and 2006 24-hour PM2.5 NAAQS, respectively, for NOX, sulfur dioxide (SO2), volatile organic compounds (VOC), and ammonia (NH3).

    On May 20, 2015 (80 FR 28906), EPA published a notice of proposed rulemaking (NPR) for Pennsylvania. In the NPR, EPA proposed approval of Pennsylvania's December 22, 2014 request to redesignate the Pittsburgh Area to attainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS. EPA also proposed approval of the associated maintenance plan as a revision to the Pennsylvania SIP for the 1997 annual and 2006 24-hour PM2.5 NAAQS, which includes the 2017 and 2025 PM2.5 and NOX MVEBs for both NAAQS, which EPA proposed to approve for purposes of transportation conformity. In addition, EPA proposed approval of the 2007 and 2011 emissions inventories included in the Pittsburgh Area's maintenance plan for the 1997 annual and 2006 24-hour PM2.5 NAAQS, respectively, to meet the emissions inventory requirement of section 172(c)(3) of the CAA.

    The details of Pennsylvania's submittal and the rationale for EPA's proposed actions are explained in the NPR and will not be restated here. No adverse public comments were received on the NPR.

    II. Final Actions

    EPA is taking final actions on the redesignation request and SIP revisions submitted on December 22, 2014 by the Commonwealth of Pennsylvania for the Pittsburgh Area for the 1997 annual and 2006 24-hour PM2.5 NAAQS. First, EPA finds that the monitoring data demonstrates that the Area has attained the 1997 annual and 2006 24-hour PM2.5 NAAQS, and continues to attain both NAAQS. Second, EPA is approving Pennsylvania's redesignation request for the 1997 annual and 2006 24-hour PM2.5 NAAQS, because EPA has determined that the request meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA for both NAAQS. Approval of this redesignation request will change the official designation of the Pittsburgh Area from nonattainment to attainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS. Third, EPA is approving the associated maintenance plan for the Pittsburgh Area as a revision to the Pennsylvania SIP for the 1997 annual and 2006 24-hour PM2.5 NAAQS because it meets the requirements of section 175A of the CAA. The maintenance plan includes the 2017 and 2025 PM2.5 and NOX MVEBs submitted by Pennsylvania for the Pittsburgh Area for transportation conformity purposes. In addition, EPA is approving the 2007 and the 2011 emissions inventories for the Pittsburgh Area as meeting the requirement of section 172(c)(3) of the CAA for 1997 annual and 2006 24-hour PM2.5 NAAQS, respectively.

    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this rulemaking action to become effective immediately upon publication. A delayed effective date is unnecessary due to the nature of a redesignation to attainment, which eliminates CAA obligations that would otherwise apply. The immediate effective date for this rulemaking action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rulemaking action, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rulemaking action relieves the Commonwealth of Pennsylvania of the obligation to comply with nonattainment-related planning requirements for the Pittsburgh Area pursuant to part D of the CAA and approves certain emissions inventories and MVEBs for the Pittsburgh Area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d) for this rulemaking action to become effective on the date of publication.

    III. Statutory and Executive Order Reviews A. General Requirements

    Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

    In addition, this rule 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.

    B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the redesignation request and maintenance plan for the Pittsburgh Area for the 1997 annual and 2006 24-hour PM2.5 NAAQS and the comprehensive emissions inventories for the Pittsburgh Area for the 1997 annual and the 2006 24-hour PM2.5 NAAQS, respectively, may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: September 17, 2015. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR parts 52 and 81 are amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart—NN Pennsylvania
    2. In § 52.2020, the table in paragraph (e)(1) is amended by adding an entry for “1997 Annual and 2006 24-Hour PM2.5 Maintenance Plan, and 2007 and 2011 Base Year Emissions Inventories” at the end of the table. The added text reads as follows:
    § 52.2020 Identification of plan.

    (e) * * *

    (1) * * *

    Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation *         *         *         *         *         *         * 1997 Annual and 2006 24-Hour PM2.5 Maintenance Plan, and 2007 and 2011 Base Year Emissions Inventories Pittsburgh-Beaver Valley 12/22/14 10/2/15 [Insert Federal Register citation] See § 52.2036(y) and § 52.2059(t).
    3. Section 52.2036 is amended by adding paragraph (y) to read as follows:
    § 52.2036 Base year emissions inventory.

    (y) EPA approves as a revision to the Pennsylvania State Implementation Plan the 2007 and 2011 base year emissions inventories for the Pittsburgh-Beaver Valley 1997 annual and 2006 24-hour fine particulate matter (PM2.5) nonattainment area, respectively, submitted by the Pennsylvania Department of Environmental Protection on December 22, 2014. The emissions inventories include emissions estimates that cover the general source categories of point, area, nonroad, and onroad sources. The pollutants that comprise the inventories are PM2.5, nitrogen oxides (NOX), volatile organic compounds (VOCs), ammonia (NH3), and sulfur dioxide (SO2).

    4. Section 52.2059 is amended by adding paragraph (t) to read as follows:
    § 52.2059 Control strategy: Particulate matter.

    (t) EPA approves the maintenance plan for the Pittsburgh nonattainment area for the 1997 annual and 2006 24-hour PM2.5 NAAQS submitted by the Commonwealth of Pennsylvania on December 22, 2014. The maintenance plan includes the 2017 and 2025 PM2.5 and NOX motor vehicle emissions budgets (MVEBs) to be applied to all future transportation conformity determinations and analyses for the Pittsburgh nonattainment area for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

    Pittsburgh-Beaver Valley's Motor Vehicle Emission Budgets for the 1997 Annual and 2006 24-Hour PM2.5 NAAQS in Tons per Year Type of control strategy SIP Year PM2.5 NOX Effective date of SIP approval Maintenance Plan 2017 700 17,584 October 2, 2015. 2025 537 10,709 October 2, 2015.
    PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 5. The authority citation for Part 81 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    6. Section 81.339 is amended by revising the “1997 Annual PM2.5 NAAQS” and the “2006 24-Hour PM2.5 NAAQS” tables entry for the Pittsburgh-Beaver Valley, PA to read as follows:
    § 81.339 Pennsylvania. Pennsylvania—1997 Annual PM2.5 NAAQS [Primary and secondary] Designated area Designation a Date 1 Type Classification Date 2 Type *         *         *         *         *         *         * Pittsburgh-Beaver Valley, PA: Allegheny County (remainder) October 2, 2015 Attainment Armstrong County (part) October 2, 2015 Attainment Elderton Borough and Plumcreek and Washington Townships: Beaver County October 2, 2015 Attainment Butler County October 2, 2015 Attainment Greene County (part) October 2, 2015 Attainment Monongahela Township: Lawrence County (part) October 2, 2015 Attainment Township of Taylor south of New Castle City: Washington County October 2, 2015 Attainment Westmoreland County October 2, 2015 Attainment *         *         *         *         *         *         * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is 90 days after January 5, 2005, unless otherwise noted. 2 This date is July 2, 2014, unless otherwise noted. Pennsylvania—2006 24-Hour PM2.5 NAAQS [Primary and secondary] Designated area Designation a Date 1 Type Classification Date 2 Type *         *         *         *         *         *         * Pittsburgh-Beaver Valley, PA: Allegheny County (remainder) October 2, 2015 Attainment Armstrong County (part) October 2, 2015 Attainment Elderton Borough and Plumcreek and Washington Townships: Beaver County October 2, 2015 Attainment Butler County October 2, 2015 Attainment Green County (part) October 2, 2015 Attainment Monongahela Township: Lawrence County (part) October 2, 2015 Attainment Township of Taylor south of New Castle City: Washington County October 2, 2015 Attainment Westmoreland County October 2, 2015 Attainment *         *         *         *         *         *         * a Includes Indian County located in each county or area, except as otherwise specified. 1 This date is 30 days after November 13, 2009, unless otherwise noted. 2 This date is July 2, 2014, unless otherwise noted.
    [FR Doc. 2015-24851 Filed 10-1-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2013-0141; FRL-9933-03] Benzovindiflupyr; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of benzovindiflupyr in or on multiple commodities that are identified and discussed later in this document. Syngenta Crop Protection, LLC., requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective October 2, 2015. Objections and requests for hearings must be received on or before December 1, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2013-0141, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0141 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 1, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0141, by one of the following methods:

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

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of June 5, 2013 (78 FR 33785) (FRL-9386-2), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of two pesticide petitions (PP 2E8123 and 2F8121) by Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419. Petition 2E8123 requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide, benzovindiflupyr in or on coffee, bean, green at 0.09 parts per million (ppm) and sugarcane, cane at 0.04 ppm. Petition 2F8121 requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide, benzovindiflupyr in or on apple, wet pomace at 0.6 ppm; barley, grain at 1.5 ppm; barley, hay at 15 ppm; barley, straw at 15 ppm; corn, field, grain at 0.02 ppm; corn, field, forage at 3 ppm; corn, field, stover at 15 ppm; corn, pop, grain at 0.02 ppm; corn, pop, stover at 15 ppm; corn, sweet, ear at 0.01 ppm; corn, sweet, forage at 4 ppm; corn, sweet, stover at 5 ppm; cottonseed, subgroup 20C at 0.15 ppm; cotton, gin byproducts at 3 ppm; vegetables, cucurbits, crop group 9 at 0.2 ppm; fruits, pome, crop group 11-10 at 0.2 ppm; fruits, small vines climbing, except fuzzy kiwi subgroup 13-07F at 1 ppm; grain, aspirated fractions at 7 ppm; oat, grain at 1.5 ppm; oat, hay at 15 ppm; oat, straw at 15 ppm; peas and bean, dried shelled, except soybean, subgroup 6C at 0.2 ppm; peas, hay at 7 ppm; peas, vine at 1.5 ppm; peanut, nutmeat at 0.01 ppm; peanut, hay at 15 ppm; potato, wet peel at 0.1 ppm; raisin at 4 ppm; rapeseed, subgroup 20A at 0.15 ppm; rye, grain at 0.1 ppm; rye, hay at 15 ppm; rye, straw at 10 ppm; soybean, seed at 0.07 ppm; soybean, forage at 15 ppm; soybean, hay at 50 ppm; vegetables, fruiting, crop group 8-10 at 0.8 ppm; vegetables, tuberous and corm subgroup 1C at 0.02 ppm; wheat, grain at 0.1 ppm; wheat, forage at 4 ppm; wheat, hay at 15 ppm; wheat, straw at 10 ppm; and at 0.01 ppm in or on the following animal commodities: cattle, goat, horse, and sheep fat, kidney, liver, meat, and meat byproducts; egg; hog, fat, liver, meat, and meat byproducts; milk; milk, fat; and poultry, byproducts, fat, liver, meat, and skin.

    That document referenced a summary of the petition prepared by Syngenta Crop Protection, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

    Based upon review of the data supporting the petition, EPA has modified the requested tolerances and levels for the reasons explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

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

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for benzovindiflupyr including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with benzovindiflupyr follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    Benzovindiflupyr has low acute toxicity by the dermal and inhalation routes, with moderate toxicity via the oral route. It is not a dermal sensitizer, but causes mild skin irritation and moderate eye irritation. The target organs for effects of benzovindifulpyr are the liver, thyroid, and kidneys.

    Benzovindiflupyr produced effects in rat fetuses (i.e. decreased fetal weight and ossification) in developmental toxicity studies but only at maternally toxic doses. In the rabbit developmental study, there were no adverse effects in either the does or the fetuses at the highest dose tested. In reproduction studies, offspring effects occurred at doses higher than the doses causing parental effects; thus, there was no quantitative increase in sensitivity in rat pups. There are indications of reproductive toxicity in rats such as decreased follicle counts, but these effects did not result in reduced fertility.

    No evidence of specific neurotoxicity was observed in the acute neurotoxicity (ACN) or subchronic neurotoxicity (SCN) studies. Benzovindiflupyr caused decreased activity and decreased grip strength in the neurotoxicity studies; however, there were no supportive neurohistopathology in any toxicological study, even at the highest doses tested.

    There was no evidence of immune system toxicity in a study conducted in the mouse, or in any other toxicity studies in the database.

    Benzovindiflupyr caused tumors in the thyroid in the chronic rat study at the highest dose tested. In mice, no tumor formation was observed. Benzovindiflupyr was negative in all mutagenicity studies. Based on the fact that evidence of tumors were found in only one species at only the highest dose tested and lack of mutagenicity, the Agency has determined that using a non-linear approach (i.e., RfD; reference dose) will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to benzovindiflupyr.

    Specific information on the studies received and the nature of the adverse effects caused by benzovindiflupyr as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document Benzovindiflupyr New Active Ingredient Human Health Risk Assessment to Support the Proposed Uses on Cereals (wheat, triticale, barley, rye, and oat), Blueberries (non-bearing), Corn (field, pop, and sweet), Peanuts, Turf, and Ornamentals; Crop Groups 8-10, 9, and 11-10; Crop Subgroups 1C, 6C, 13-07F, 20A, and 20C; and Establishment of Tolerances on Imported Coffee and Sugarcane in docket ID number EPA-HQ-OPP-2013-0141.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm. A summary of the toxicological endpoints for benzovindiflupyr used for human risk assessment is shown in Table 1 of this unit.

    Table 1—Summary of Toxicological Doses and Endpoints for Benzovindiflupyr for Use in Human Health Risk Assessment Exposure/scenario Point of
  • departure
  • Uncertainty/FQPA safety factors RfD, PAD, level of concern for risk
  • assessment
  • Study and toxicological effects
    Acute dietary (All populations, including infants and children) NOAEL = 10 mg/kg/day UFA = 10x
  • UFH = 10x
  • FQPA SF= 1x
  • Acute RfD = 0.10 mg/kg/day
  • aPAD =0.10 mg/kg/day
  • Acute neurotoxicity screening battery (rat).
  • NOAEL = 10 mg/kg/day.
  • LOAEL = 30 mg/kg/day based on multiple clinical observations, decreases in mean body temperature, decreases in locomotor activity parameters, reduced food consumption and/or decreases in mean grip strength.
  • Chronic dietary (All populations) Parental/Off-spring
  • NOAEL = 8.2 (females) mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF= 1x
  • Chronic RfD = 0.082 mg/kg/day
  • cPAD = 0.082 mg/kg/day
  • 2-generation reproduction study (rat).
  • Parental/Offspring NOAEL = 8.2 mg/kg/day (F).
  • LOAEL = 19.4 mg/kg/day (F) based on decreased body weight and decreased food consumption in parental animals as well as increases in liver weights, centrilobular hepatocellular hypertrophy, increased incidence of cell hypertrophy in the pars distalis of the pituitary, reduced body weight, delayed preputial separation, and decreased spleen weights in the F1 and/or F2 offspring.
  • Incidental oral Short -term (1-30 days) Parental/Off-spring
  • NOAEL = 8.2 (females) mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF= 1x
  • Residential LOC for MOE = 100 2-generation reproduction toxicity study (rat).
  • Parental/Offspring NOAEL = 8.2 mg/kg/day (F).
  • LOAEL = 19.4 mg/kg/day (F) based on decreased body weight and decreased food consumption in parental animals as well as increases in liver weights, centrilobular hepatocellular hypertrophy, increased incidence of cell hypertrophy in the pars distalis of the pituitary, reduced body weight, delayed preputial separation, and decreased spleen weights in the F1 and/or F2 offspring.
  • Inhalation Short-term (1-30 days) and Intermediate-term (1-6 months) Parental/Off-spring NOAEL: 8.2 mg/kg/day (F) UF A = 10x
  • UF H = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 100 2-generation reproduction study (rat).
  • Parental/Offspring NOAEL = 8.2 mg/kg/day (F).
  • LOAEL = 19.4 mg/kg/day (F) based on decreased body weight and decreased food consumption in parental animals as well as increases in liver weights, centrilobular hepatocellular hypertrophy, increased incidence of cell hypertrophy in the pars distalis of the pituitary, reduced body weight, delayed preputial separation, and decreased spleen weights in the F1 and/or F2 offspring.
  • Cancer (oral, dermal, inhalation) The Agency is using a non-linear (RfD) approach to assess carcinogenic potential; the RfD would be protective of non-carcinogenic and carcinogenic effects observed in the rat carcinogenicity study or mode of action studies conducted at higher doses. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFDB = to account for the absence of data or other data deficiency. UFH = potential variation in sensitivity among members of the human population (intraspecies). UFL = use of a LOAEL to extrapolate a NOAEL. UFS = use of a short-term study for long-term risk assessment.
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to benzovindiflupyr, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from benzovindiflupyr in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

    Such effects were identified for benzovindiflupyr. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA), Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA conducted a highly conservative acute dietary risk assessment which used tolerance-level residues for food except for livestock commodities, anticipated residues (based on maximum theoretical diets) for livestock commodities, and 100% crop treated for all commodities.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA, CSFII. As to residue levels in food, EPA conducted a highly conservative chronic dietary risk assessment which used tolerance-level residues for food, anticipated residues (based on maximum theoretical diets) for livestock commodities, and 100% crop treated for all commodities.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach was appropriate for assessing cancer risk to benzovindiflupyr; therefore, a separate dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and percent crop treated (PCT) information. Tolerance-level residues for food and anticipated residues (based on maximum theoretical diets) for livestock commodities were used and 100% CT was assumed for all commodities.

    Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

    2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for benzovindiflupyr in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of benzovindiflupyr. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of benzovindiflupyr for acute exposures are estimated to be 8.4 parts per billion (ppb) for surface water and 0.14 ppb for ground water. For chronic exposures for non-cancer assessments are estimated to be 5.4 ppb for surface water and <0.14 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 8.4 parts per billion (ppb) for surface water was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 5.4 ppb for surface water was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    Benzovindiflupyr is proposed for registration for the following uses that could result in residential exposures: turf (e.g. golf courses, recreational parks, home lawns, and sod farms) and ornamentals (residential landscape areas). EPA assessed residential exposure using the following assumptions. The proposed uses of benzovindiflupyr on turf and ornamentals in a residential setting by homeowners may result in residential handler (adults who are involved in the pesticide application process) exposure.

    Residential handler exposure is expected to be short-term (ST) in duration. Intermediate-term (IT) exposures are not likely because of the intermittent nature of applications by homeowners. In addition, since the toxicity endpoints and PODs are the same for all durations, the ST assessment will be protective of any longer term exposures that may result from residential uses. Since no dermal hazard was identified for benzovindiflupyr in the toxicological database, only inhalation exposure assessments were conducted for residential handlers.

    There is the potential for post-application exposure to individuals (adults and children) as a result of being in an environment that has been previously treated with benzovindiflupyr. Post-application inhalation exposures while performing activities in previously treated turf or ornamentals are not expected and were not assessed primarily due to the very low vapor pressure and the expected dilution in outdoor air after an application has occurred. In addition, no dermal hazard was identified in the toxicity database for benzovindiflupyr and, therefore, a quantitative residential post-application dermal risk assessment is not required and was not completed. However, incidental oral exposures to children contacting treated turf have been assessed. Residential post-application exposures are generally considered to be intermittent and short-term in duration. Since the benzovindiflupyr toxicity endpoints and PODs are the same regardless of duration, the short-term assessment is protective of any longer term exposures that may occur from the residential uses of benzovindiflupyr. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found benzovindiflupyr to share a common mechanism of toxicity with any other substances, and benzovindiflupyr does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that benzovindiflupyr does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. Benzovindiflupyr produced effects in rat fetuses (i.e. decreased fetal weight and delayed ossification) in developmental toxicity studies at maternally toxic doses (i.e., ataxia, hunched posture, and decreased activity); the Agency does not consider the fetal effects to be evidence of increased qualitative susceptibility since ossification is not considered to be a malformation and is reversible (based on the reproduction study), and maternal effects are fairly severe at the same dose levels. In the rabbit developmental study, there were no adverse effects in either the dose or the fetuses at the highest dose tested. In rat reproduction studies, offspring effects occurred at higher doses higher than those causing parental effects, thus there was no quantitative increase in sensitivity in rat pups. There were no single-dose developmental effects identified in the developmental toxicity studies in rats or rabbits. Although decreases in growing follicle counts were noted in the reproduction toxicity study, this effect did not result in reduced functional fertility in the rat. Furthermore, the antral follicle counts at a later stage in development were not decreased, so the decreased growing follicle count effect is not considered adverse.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for benzovindiflupyr is complete.

    ii. There is no indication that benzovindiflupyr is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no evidence that benzovindiflupyr results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

    iv. There are no residual uncertainties identified in the exposure databases. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to benzovindiflupyr in drinking water. EPA also made conservative assumptions for dietary food exposures (residues on food and feed crops based on tolerance level residues, assuming 100% crop treated) resulting in high-end estimates of dietary food. EPA used similarly conservative assumptions based on conservative default (non-chemical specific) assumptions to assess postapplication exposure of children, including incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by benzovindiflupyr.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to benzovindiflupyr will occupy 30% of the aPAD for children 1-2 years old.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to benzovindiflupyr from food and water will utilize 14% of the cPAD for children 1-2 years old. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of benzovindiflupyr is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Benzovindiflupyr is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to benzovindiflupyr. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of ≥180,000 for all scenarios. Because EPA's level of concern for benzovindiflupyr is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Intermediate-term exposures are not likely because of the intermittent nature of applications by homeowners and the likely short-term duration of exposures.

    5. Aggregate cancer risk for U.S. population. Based on the results of the chronic risk assessment, the Agency does not expect benzovindiflupyr to pose a cancer risk.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to benzovindiflupyr residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (A Quick, Easy, Cheap, Effective, Rugged, and Safe (QuEChERS) multi-residue method (EN15662:2009)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established a MRL for benzovindiflupyr.

    C. Response to Comments

    EPA received a comment to the notice of filing, which requested that the Agency reconsider the acceptable residue levels of toxic chemicals on food. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned on agricultural crops. However, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.

    D. Revisions to Petitioned-For Tolerances

    Benzovindiflupyr was evaluated by undergoing a global joint review between the EPA, the Pest Management Regulatory Agency (PMRA) of Canada, and the Federal Commission for the Protection against Sanitary Risk (COFEPRIS) of Mexico. Based upon review of the data supporting the petition and calculation procedures for tolerance determination, several tolerances modifications were required. Specifically, commodity definitions were modified for pea, hay; pea, vine; peanut, nutmeat; raisin; and potato, processed waste to reflect the current nomenclature used by the Agency. Several tolerance levels were adjusted to account for differences in the input data used for the calculation procedures for tolerance determination. For example, several trials considered to be independent trials by the petitioner were determined by the Agency to be replicate (not independent) trials and, as such, these data are inputed differently than data from independent trails. Based on this discrepancy, the Agency is establishing tolerances for the following commodities that are different from what the petitioner requested: Cattle, fat; cattle, liver; coffee, green bean; fruit, pome, group 11-10; goat, fat; goat, liver; horse, fat; horse, liver; milk, fat; pea and bean, dried shelled, except soybean, subgroup 6C; potato, processed waste; rye, straw; sheep, fat; sheep, liver; vegetable, cucurbit, group 9; vegetable, fruiting, group 8-10; wheat, grain; and wheat, straw. Also, based on the Agency's calculation, the available data supports reducing the raisin tolerance (from 4 ppm to 3 ppm) and increasing the aspirated grain fractions tolerance (from 7 ppm to 15 ppm).

    A tolerance was recommended for lowbush variety of blueberry in non-cropping years following a 365-day PHI. However, no tolerance will be established on the basis that it would cover non-bearing blueberries which are considered to be a non-food use. Also, the petitioner did not include this use in their notice filing. Although the petitioner did not request a separate tolerance for tomato, dried, tomato processing study data show that residues concentrate in dried tomatoes (7.8X). To cover the higher residues and to harmonize with Canada, EPA is establishing a tolerance for tomato, dried at 4 ppm. Finally, the applicant requested tolerances for apple, wet pomace. As a fruit, pome, group 11-10 tolerance of 0.2 ppm will cover any potential residues in processed apple, a separate tolerance is not needed.

    V. Conclusion

    Therefore, tolerances are established for residues of benzovindiflupyr, in or on barley, grain at 1.5 ppm; barley, hay at 15 ppm; barley, straw at 15 ppm; cattle, fat at 0.02 ppm; cattle, liver at 0.06 ppm; cattle, meat at 0.01 ppm; cattle, meat byproducts, except liver at 0.01 ppm; coffee, green bean at 0.09 ppm; corn, field, forage at 3.0 ppm; corn, field, grain at 0.02 ppm; corn, field, stover at 15 ppm; corn, pop, grain at 0.02 ppm; corn, pop, stover at 15 ppm; corn, sweet, forage at 4.0 ppm; corn, sweet, kernel plus cob with husks removed at 0.01 ppm; corn, sweet, stover at 5.0 ppm; cottonseed, subgroup 20C at 0.15 ppm; cotton, gin byproducts at 3.0 ppm; fruit, pome, group 11-10 at 0.20 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 1 ppm; goat, fat at 0.02 ppm; goat, liver at 0.06 ppm; goat, meat at 0.01 ppm; goat, meat byproducts, except liver at 0.01 ppm; grain, aspirated fractions at 15 ppm; horse, fat at 0.02 ppm; horse, liver at 0.06 ppm; horse, meat at 0.01 ppm; horse, meat byproducts, except liver at 0.01 ppm; milk at 0.01 ppm; milk, fat at 0.02 ppm; oat, grain at 1.5 ppm; oat, hay at 15 ppm; oat, straw at 15 ppm; pea and bean, dried shelled, except soybean, subgroup 6C at 0.20 ppm; pea, field, hay at 7.0 ppm; pea, field, vine at 1.5 ppm; peanut at 0.01 ppm; peanut, hay at 15 ppm; potato, processed potato waste at 0.10 ppm; grape, raisin at 3.0 ppm; rapeseed, subgroup 20A at 0.15 ppm; rye, grain at 0.1 ppm; rye, hay at 15 ppm; rye, straw at 15 ppm; sheep, fat at 0.02 ppm; sheep, liver at 0.06 ppm; sheep, meat at 0.01 ppm; sheep meat byproducts, except liver at 0.01 ppm; soybean, forage at 15 ppm; soybean, hay at 50 ppm; soybean, hulls at 0.20 ppm; soybean, seed at 0.07 ppm; sugarcane, cane at 0.04 ppm; tomato, dried at 4.0 ppm; vegetable, cucurbit, group 9 at 0.30 ppm; vegetable, fruiting, group 8-10 at 1.5 ppm; vegetable, tuberous and corm, subgroup 1C at 0.02 ppm; wheat, forage at 4 ppm; wheat, grain at 0.10 ppm; wheat, hay at 15 ppm; and wheat, straw at 15 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: August 28, 2015. Jack E. Housenger, Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. Add § 180.686 to subpart C to read as follows:
    §  180.686 Benzovindiflupyr; tolerances for residues.

    (a) General. Tolerances are established for residues of the fungicide benzovindiflupyr, including its metabolites and degradates, in or on the commodities in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only benzovindiflupyr (N-[9-(dichloromethylene)-1,2,3,4-tetrahydro-1,4-methanonaphthalen-5-yl]-3-(difluoromethyl)-1-methyl-1H-pyrazole-4-carboxamide) in or on the commodity.

    Commodity Parts per million Barley, grain 1.5 Barley, hay 15.0 Barley, straw 15.0 Cattle, fat 0.02 Cattle, liver 0.06 Cattle, meat 0.01 Cattle, meat byproducts, except liver 0.01 Coffee, green bean1 0.09 Corn, field, forage 3.0 Corn, field, grain 0.02 Corn, field, stover 15.0 Corn, pop, grain 0.02 Corn, pop, stover 15.0 Corn, sweet, forage 4.0 Corn, sweet, kernel plus cob with husks removed 0.01 Corn, sweet, stover 5.0 Cottonseed, subgroup 20C 0.15 Cotton, gin byproducts 3.0 Fruit, pome, group 11-10 0.20 Fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F 1.0 Goat, fat 0.02 Goat, liver 0.06 Goat, meat 0.01 Goat, meat byproducts, except liver 0.01 Grain, aspirated fractions 15.0 Grape, raisin 3.0 Horse, fat 0.02 Horse, liver 0.06 Horse, meat 0.01 Horse, meat byproducts, except liver 0.01 Milk 0.01 Milk, fat 0.02 Oat, grain 1.5 Oat, hay 15.0 Oat, straw 15.0 Pea and bean, dried shelled, except soybean, subgroup 6C 0.20 Pea, field, hay 7.0 Pea, field, vine 1.5 Peanut 0.01 Peanut, hay 15.0 Potato, processed potato waste 0.10 Rapeseed, subgroup 20A 0.15 Rye, grain 0.1 Rye, hay 15.0 Rye, straw 15.0 Sheep, fat 0.02 Sheep, liver 0.06 Sheep, meat 0.01 Sheep meat byproducts, except liver 0.01 Soybean, forage 15.0 Soybean, hay 50.0 Soybean, hulls 0.20 Soybean, seed 0.07 Sugarcane, cane1 0.04 Tomato, dried 4.0 Vegetable, cucurbit, group 9 0.30 Vegetable, fruiting, group 8-10 1.5 Vegetable, tuberous and corm, subgroup 1C 0.02 Wheat, forage 4.0 Wheat, grain 0.10 Wheat, hay 15.0 Wheat, straw 15.0 1 There is no U.S. registration for use of benzovindiflupyr.

    (b) Section 18 emergency exemptions. [Reserved]

    (c) Tolerances with regional registrations. [Reserved]

    (d) Indirect or inadvertent residues. [Reserved]

    [FR Doc. 2015-24467 Filed 10-1-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Part 1820 [LLES9120000 L14400000.PN0000] RIN 1004-AE43 Application Procedures, Execution and Filing of Forms: Correction of State Office Address for Filings and Recordings, Including Proper Offices for Recording of Mining Claims; Arkansas, Iowa, Louisiana, Minnesota, Missouri, and all States East of the Mississippi River AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule amends the regulations pertaining to execution and filing of forms in order to reflect the new address of the BLM Eastern States Office of the Bureau of Land Management (BLM). All filings and other documents relating to public lands in the States of Arkansas, Iowa, Louisiana, Minnesota, Missouri and all States east of the Mississippi River must be filed at the new address of the State Office.

    DATES:

    This rule is effective October 2, 2015.

    ADDRESSES:

    You may send inquiries or suggestions to Deputy State Director for Communications, BLM Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003.

    FOR FURTHER INFORMATION CONTACT:

    Bob Gillcash, (202) 912-7712. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.

    SUPPLEMENTARY INFORMATION: I. Background II. Procedural Matters I. Background

    This final rule reflects the administrative action of changing the street address of the Eastern States office of the BLM. This rule changes both the postal and street address for the personal filing of documents relating to public lands in Arkansas, Iowa, Louisiana, Minnesota, Missouri, and all States east of the Mississippi River, but makes no other changes in filing requirements. The BLM has determined that the rule has no substantive impact on the public, imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public. The Department of the Interior, therefore, for good cause finds that under 5 U.S.C. 553(b)(B) and 553(d)(3) notice and public comment procedures are unnecessary and that the rule may take effect immediately.

    II. Procedural Matters Regulatory Planning and Review (Executive Order 12866)

    This final rule is an administrative action to change the address for one BLM State Office. This rule was not subject to review by the Office of Management and Budget under Executive Order 12866. The rule imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public.

    National Environmental Policy Act

    The BLM has found that this final rule is of a procedural nature and thus is categorically excluded from environmental review under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C), pursuant to 43 CFR 46.210(i). In addition, this final rule does not present any of the 12 extraordinary circumstances listed at 43 CFR 46.215. Pursuant to 43 CFR 46.205 and the Council on Environmental Quality regulations at 40 CFR 1508.4, the term “categorical exclusion” means a category or kind of action that has no significant individual or cumulative effect on the human environment and therefore requires neither an environmental assessment nor an environmental impact statement.

    Regulatory Flexibility Act

    Congress enacted the Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq.) to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. This final rule is a purely administrative regulatory action having no effect upon the public or the environment and it has been determined that the rule will not have a significant effect on the economy or small entities.

    Small Business Regulatory Enforcement Fairness Act

    This final rule is a purely administrative regulatory action having no effects upon the public or the economy. This is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule will not have an annual effect on the economy of $100 million or more. This rule will not cause a major increase in costs of prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to complete with foreign-based enterprises.

    Unfunded Mandate Reform Act

    The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995 because the rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Further, this final rule will not significantly or uniquely affect small governments. It does not require action by any non-Federal government entity. Therefore, the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.), is not required.

    Executive Order 12630, Government Action and Interference With Constitutionally Protected Property Rights (Takings)

    As required by Executive Order 12630, the Department of the Interior has determined that this rule would not cause a taking of private property. No private property rights would be affected by a rule that merely reports an address change for the Eastern States Office. The Department therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

    Executive Order 13132, Federalism

    In accordance with Executive Order 13132, the BLM finds that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

    This final rule does not have substantial direct effects on the States, on the relationship between the national governments and the States, or the distribution of power and the responsibilities among the various levels of government. This final rule does not preempt State law.

    Executive Order 12988, Civil Justice Reform

    This final rule is a purely administrative regulatory action having no effects upon the public. It will not unduly burden the judicial system, and meets the requirements of Sections 3(a) and 3(b)(2) of the Executive Order.

    Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

    In accordance with the Executive Order 13175, the BLM finds that this rule does not include policies that have tribal implications. This final rule is purely an administrative action having no effects upon the public or the environment, imposing no costs, and merely updates the Eastern States Office address included in the Code of Federal Regulations.

    Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, the BLM has determined that this final rule will not have substantial direct effects on the energy supply, distribution or use, including a shortfall in supply or price increase. This final rule is a purely administrative action and has no implications under Executive Order 13211.

    Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

    List of Subjects in 43 CFR Part 1820

    Administrative practice and procedure, Archives and records, Public lands.

    Dated: September 19, 2015. Janice M. Schneider, Assistant Secretary, Land and Minerals Management.

    For the reasons discussed in the preamble, the Bureau of Land Management amends 43 CFR part 1820 as follows:

    PART 1820—APPLICATION PROCEDURES 1. The authority citation for part 1820 continues to read as follows: Authority:

    5 U.S.C. 552, 43 U.S.C. 2, 1201, 1733, and 1740.

    Subpart 1821—General Information 2. Amend § 1821.10 in paragraph (a) by revising the entry for the Eastern States Office to read as follows:
    § 1821.10 Where are BLM offices located?

    (a) * * *

    State Offices and Areas of Jurisdiction

    Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003—Arkansas, Iowa, Louisiana, Minnesota, Missouri, and all States east of the Mississippi River.

    [FR Doc. 2015-25027 Filed 10-1-15; 8:45 am] BILLING CODE 4310-GJ-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket No. 15-71; FCC 15-111] Television Market Modification; Statutory Implementation AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Commission adopts satellite television market modification rules to implement section 102 of the Satellite Television Extension and Localism Act Reauthorization (STELAR) Act of 2014. The STELAR gives the Commission authority to modify a commercial television broadcast station's local television market for purposes of satellite carriage rights. In this document, the Commission revises the current cable market modification rule to apply also to satellite carriage, while adding provisions to address the unique nature of satellite television service. The document also makes conforming and other minor changes to the cable market modification rules.

    DATES:

    Effective November 2, 2015, except §§ 76.59(a) and (b) which contain information collection requirements that have not been approved by OMB. The Commission will publish a document in the Federal Register announcing when OMB approval for this information collection has been received and these rules will take effect.

    FOR FURTHER INFORMATION CONTACT:

    Evan Baranoff, [email protected], of the Media Bureau, Policy Division, (202) 418-2120. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to [email protected] or contact Cathy Williams at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order, FCC 15-111, adopted and released on September 2, 2015. The full text of this document is available electronically via the FCC's Electronic Comment Filing System (ECFS) Web site at http://fjallfoss.fcc.gov/ecfs2/ or via the FCC's Electronic Document Management System (EDOCS) Web site at http://fjallfoss.fcc.gov/edocs_public/. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) This document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC, 20554. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    I. Introduction

    1. In this Report and Order, the Commission adopts rules to enable commercial television stations, satellite carriers and cable operators to better serve the interests of their local communities. These rules implement an important provision in the Satellite Television Extension and Localism Act Reauthorization Act of 2014 (“STELAR”) to promote carriage of in-state and other relevant local television programming. Specifically, in the STELAR, Congress recognized that satellite subscribers in some communities across the country are not able to access broadcast stations in their own states via the local television packages offered by satellite carriers. This problem results from the way TV stations are defined as “local” for purposes of satellite carriage. In some cases, subscribers may be included in a local television programming market that is served exclusively, or almost exclusively, by television stations in a neighboring state. As a result, these subscribers are not receiving news, politics, sports, emergency information and other television programming relevant to their home state. The STELAR seeks to address this problem by changing the laws to provide for “market modifications” that add flexibility to the current definition of a local television programming market. Market modifications allow the Commission, upon request, to modify the local market assignment of a station to include such neighboring communities that are located in the same state as the station. As required by the STELAR, the Commission determines whether to grant a market modification based on consideration of five statutory factors that allow petitioners to demonstrate that they provide local service to the community. Significantly, in the STELAR, Congress included a factor requiring consideration of access to television stations that are located in the same state as the community considered for modification. Congress also added this factor to the existing market modification statutory factors applicable to cable operators. Our rules implement the STELAR to achieve the goal of better service for consumers. Finally, Congress recognized that satellite carriage of additional stations might be technically or economically infeasible in some circumstances. Accordingly, our rules implement this exception to the carriage requirements that would otherwise apply for modified markets. We recognize that the ability of the market modification rules to successfully address the problem of consumer access to in-state stations will depend in large part on broadcasters' willingness to grant retransmission consent to be carried in the new community and satellite carriers' technical ability to provide the in-state stations in the new community. Therefore, we strongly urge broadcasters and satellite carriers to work together to provide relief to consumers and achieve the goals of the STELAR (to promote access to in-state programming) in cases where carriage is technically feasible.

    2. In this Report and Order, we adopt satellite television market modification rules to implement section 102 of the STELAR.1 The STELAR amended the Communications Act (“Act”) and the Copyright Act to give the Commission authority to modify a commercial television broadcast station's local television market for purposes of satellite carriage rights.2 The Commission previously had such authority to modify markets only in the cable carriage context.3 With section 102 of the STELAR, Congress provides regulatory parity in this regard in order to promote consumer access to in-state and other relevant television programming.4

    1 The STELA Reauthorization Act of 2014 (STELAR), sec. 102, Pub. L. 113-200, 128 Stat. 2059, 2060-62 (2014) (codified at 47 U.S.C. 338(l)). The STELAR was enacted on December 4, 2014 (H. R. 5728, 113th Cong.). This proceeding implements STELAR section 102 (titled “Modification of television markets to further consumer access to relevant television programming”), 128 Stat. at 2060-62, and the related statutory copyright license provisions in STELAR sec. 204 (titled “Market determinations”), 128 Stat. at 2067 (codified at 17 U.S.C. 122(j)(2)(E)).

    2 STELAR secs. 102, 204, 128 Stat. at 2060-62, 2067. STELAR section 102(a) amends section 338 of the Act by adding a new paragraph (l), titled “Market Determinations.” 47 U.S.C. 338(l). STELAR section 102(b) also makes conforming amendments to the cable market modification provision at 47 U.S.C. 534(h)(1)(C). STELAR sec. 204 amends the statutory copyright license for satellite carriage of “local” stations in 17 U.S.C. 122 to cover market modifications in accordance with 47 U.S.C. 338(l). 17 U.S.C. 122(j)(2)(E). We note that, like the existing cable provision, the STELAR provision pertains only to “commercial” stations, thus excluding noncommercial stations from seeking market modification. See 47 U.S.C. 338(l)(1).

    3See 47 U.S.C. 534(h)(1)(C). This section was added to the Act by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460 (1992), as part of the cable must-carry/retransmission consent regime for carriage of local television stations. See also 47 CFR 76.59.

    4See title of STELAR section 102, “Modification of Television Markets to Further Consumer Access to Relevant Television Programming.” See also 47 U.S.C. 534(h)(1)(C)(ii)(III) (directing the Commission to consider whether a market modification would “promote consumers' access to television broadcast station signals that originate in their State of residence”). There was no final Report issued to accompany the final version of the STELAR bill (H. R. 5728, 113th Cong.) as it was enacted. Because section 102 of the STELAR was added from the Senate predecessor bill (S. 2799, the Satellite Television Access and Viewer Rights Act (STAVRA)), we therefore look to the Senate Report No. 113-322 (dated December 12, 2014) accompanying this predecessor bill for the relevant legislative history for this provision. See Report from the Senate Committee on Commerce, Science, and Transportation accompanying S. 2799, 113th Cong., S. Rep. No. 113-322 (2014) (“Senate Commerce Committee Report”).

    3. Section 102 of the STELAR, and the Commission's actions in this Report and Order, seek to establish a market modification process for the satellite carriage context and, to the extent possible, address satellite subscribers' inability to receive in-state programming in certain areas, sometimes called “orphan counties.” 5 In this Report and Order, consistent with Congress' intent that the Commission model the satellite market modification process on the current cable market modification process, we implement section 102 of the STELAR by revising the current cable market modification rule, section 76.59, to apply also to satellite carriage, while adding provisions to the rules to address the unique nature of satellite television service.6 In addition to authorizing satellite market modifications, section 102 of the STELAR makes certain conforming amendments to the cable market modification statutory provision 7 and also directs the Commission to consider whether to make other changes to the cable market modification rules.8 Accordingly, as part of our implementation of the STELAR, we make conforming and other minor changes to the cable market modification rules.

    5 The Commission has sometimes referred to the situation in which a county in one state is assigned to a neighboring state's local television market and, therefore, satellite subscribers residing in such county cannot receive some or any broadcast stations that originate in-state as the “orphan county” problem. See, e.g., Implementation of Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA), MB Docket No. 10-148, Report and Order and Order on Reconsideration, FCC 10-193, para. 48, 75 FR 72968, Nov. 29, 2010 (STELA Significantly Viewed Report and Order). The inability of satellite subscribers located in “orphan counties” to access in-state programming has been the subject of some congressional interest. See, e.g., Orphan County Telecommunications Rights Act, H.R. 4635, 113th Cong. (2014); Colorado News, Emergency, Weather, and Sports Act, S. 2375, 113th Cong. (2014); Four Corners Television Access Act, H.R. 4469, 112th Cong. (2012); Letting Our Communities Access Local Television Act, S. 3894, 111th Cong. (2010); Local Television Freedom Act, H.R. 3216, 111th Cong. (2009).

    6See 47 CFR 76.59. As discussed herein, we revise section 76.59 of our rules to apply to both cable systems and satellite carriers. See Final Rules. We note Congress' intent that the process established by the Commission under the section 102 of the STELAR be “modeled” on the current cable market modification process. See Senate Commerce Committee Report at 10. However, the STELAR recognizes the inherent difference between cable and satellite television service with provisions specific to satellite. See 47 U.S.C. 338(l)(3)(A), (5).

    7See STELAR sec. 102(b) (amending 47 U.S.C. 534(h)(1)(C)(ii)).

    8 STELAR section 102(d) directs the Commission to consider as part of this rulemaking whether the “procedures for the filing and consideration of a written request under sections 338(l) and 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338(l); 534(h)(1)(C)) fully effectuate the purposes of the amendments made by this section, and update what it considers to be a community for purposes of a modification of a market under section 338(l) or 614(h)(1)(C) of the Communications Act of 1934.”

    4. The following are among the key conclusions adopted in this Report and Order:

    • We amend the cable market modification rule, section 76.59 of our rules, to apply also to satellite market modifications, and amend the rule to reflect the STELAR provisions that uniquely apply to satellite carriers, such as an exception if the resulting carriage is “not technically and economically feasible.”

    • We conclude that the involved commercial broadcast station, satellite carrier, and county government have standing to file a satellite market modification petition. Petitions must be filed in accordance with the procedures for filing Special Relief petitions in section 76.7 of our rules.

    • We conclude that the new in-state factor,9 when applicable, favors any market modification that would promote consumers' access to an in-state station. When applicable, this in-state factor serves as an enhancement, the particular weight of which depends on the strength of showing by the petitioner.

    9 47 U.S.C. 338(l)(2)(B)(iii), 534(h)(1)(C)(ii)(III) (“whether modifying the market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence”).

    • We conclude that the evidentiary requirements for cable market modifications will apply to satellite market modifications. In addition, to satisfy the new in-state factor when applicable, we require a petitioner to make a statement in its petition that the station is licensed to a community within the same state as the new community.

    • We conclude that market modifications will be considered separately in the cable and satellite contexts and that, in the satellite context, market modifications will apply only to the specific stations, satellite carriers, and communities addressed in a particular market modification petition.

    • We conclude that prior cable market modification determinations will not automatically apply in the satellite context, nor will such prior decisions be afforded a presumption; however, we note that we are required to consider historic carriage under the first statutory factor.

    • We conclude that a television broadcast station that becomes eligible for mandatory satellite carriage by operation of a market modification may elect retransmission consent or mandatory carriage with respect to a satellite carrier within 30 days after the market determination. We conclude that a satellite carrier must commence carriage within 90 days after receiving the station's request for carriage.

    • We conclude that it is per se not technically and economically feasible for a satellite carrier to provide a station to a new community that is outside of the relevant spot beam on which that station is currently carried.

    • We conclude that, if a satellite carrier can provide the station at issue in a market modification request to only part of a new community, then it must do so.

    • We conclude that the satellite carrier has the burden to demonstrate that the resulting carriage from a market modification is technically and economically infeasible.

    • We will allow satellite carriers to demonstrate spot beam coverage infeasibility by providing a detailed certification under penalty of perjury.

    • We conclude that a satellite carrier must raise any technical or economic impediments either in the market modification proceeding or prior to such proceeding in response to a prospective petitioner's inquiry about feasibility of carriage resulting from a contemplated market modification.

    • We establish a process that will allow a prospective petitioner to obtain a certification from a satellite carrier about whether or not (and to what extent) it is technically and economically feasible for the carrier to provide the station to a new community. We will not grant a market modification petition if such grant could not create a new carriage obligation for the carrier at that time due to a finding of technical or economic infeasibility.

    • We recognize that there may be other bases than spot beam coverage for a carrier to assert that carriage would be technically or economically infeasible and will review these assertions on a case-by-case basis.

    • We define a “satellite community” as a county for purposes of a satellite market modification. We retain our existing definition of a “cable community” for purposes of a cable market modification.

    II. Background

    5. The STELAR, enacted December 4, 2014, is the latest in a series of statutes that have amended the Communications Act and Copyright Act to set the parameters for the satellite carriage of television broadcast stations. The 1988 Satellite Home Viewer Act (SHVA) first established a “distant” statutory copyright license to enable satellite carriers to offer subscribers who could not receive the over-the-air signal of a broadcast station access to broadcast programming via satellite.10 The 1999 Satellite Home Viewer Improvement Act (SHVIA) established a “local” statutory copyright license and expanded satellite carriers' ability to offer broadcast television signals directly to subscribers by permitting carriers to offer “local” broadcast signals.11 The 2004 Satellite Home Viewer Extension and Reauthorization Act (SHVERA) reauthorized the distant signal statutory copyright license until December 31, 2009 and expanded that license to allow satellite carriers to carry “significantly viewed” stations.12 The 2010 Satellite Television Extension and Localism Act (STELA) extended the distant signal statutory copyright license through December 31, 2014,13 moved the significantly viewed station copyright provisions to the local statutory copyright license (which does not expire), and revised the “significantly viewed” provisions to facilitate satellite carrier use of that option.14 With the STELAR, Congress extended the distant signal statutory copyright license for another five years, through December 31, 2019, and, among other things, authorized market modification in the satellite carriage context and revised the market modification provisions for cable to promote parity for satellite and cable subscribers and competition between satellite and cable operators.15

    10 Satellite Home Viewer Act of 1988 (SHVA), Public Law 100-667, 102 Stat. 3935, Title II (1988); 17 U.S.C. 119 (distant statutory copyright license). In addition to allowing satellite carriers to retransmit television signals of distant network stations to “unserved” subscriber households, the SHVA also permitted satellite carriers to retransmit distant superstations (non-network stations) to any subscriber household. See 17 U.S.C. 119(d)(2) (defining “network station”), (d)(9) (defining “non-network station,” previously “superstation”) and (d)(10) (defining “unserved household”). The 1994 Satellite Home Viewer Act reauthorized the distant statutory copyright license for five years and made other changes to the distant statutory copyright license but did not amend the Communications Act or otherwise alter satellite carriage rights. Satellite Home Viewer Act of 1994, Public Law 103-369, 108 Stat. 3477 (1994). Each successive statute in the SHVA progeny has reauthorized the distant statutory copyright license.

    11 Satellite Home Viewer Improvement Act of 1999 (SHVIA), Public Law 106-113, 113 Stat. 1501 (1999); 17 U.S.C. 122 (local statutory copyright license). The local statutory copyright license makes no distinction between network and non-network signals or served or unserved households. See id. Local stations may elect mandatory carriage or carriage pursuant to retransmission consent. 47 U.S.C. 325, 338. See 47 CFR 76.66(c). Unlike the distant license, the local statutory copyright license does not expire.

    12 Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA), Public Law 108-447, 118 Stat 2809 (2004). Significantly viewed stations are television broadcast stations that the Commission has determined have sufficient over-the-air (i.e., non-cable and non-satellite) viewing to be treated as local stations with respect to a particular satellite community in another market, thus, allowing them to be carried by the satellite carrier in that community in the other market. For copyright purposes, significantly viewed status entitles satellite carriers to carry the out-of-market but significantly viewed station with the reduced copyright payment obligations applicable to local (in-market) stations. See 17 U.S.C. 122(a)(2). Satellite carriers are not required to carry out-of-market significantly viewed stations. If they do carry such significantly viewed stations, retransmission consent is required. See 47 U.S.C. 340(d).

    13 The Satellite Television Extension and Localism Act of 2010 (STELA), Public Law 111-175, 124 Stat. 1218, 1245 (2010). Congress passed four short-term extensions of the distant signal statutory copyright license (on December 19, 2009, March 2, March 26 and April 15, 2010) before passing the STELA to reauthorize the distant signal statutory copyright license for a full five years, until December 31, 2014. STELA sec. 107(a). See Department of Defense Appropriations Act, 2010, sec. 1003(b), Public Law 111-118, 123 Stat 3409, 3469 (2009) (extending distant license until February 28, 2010); Temporary Extension Act of 2010, sec. 10, Public Law 111-144, 124 Stat 42, 47 (2010) (extending license until March 28, 2010); Satellite Television Extension Act of 2010, Public Law 111-151, 124 Stat 1027 (2010) (extending license until April 30, 2010); Continuing Extension Act of 2010, sec. 9, Public Law 111-157, 124 Stat 1116 (2010) (extending license until May 31, 2010).

    14 As noted, the STELA reauthorized the statutory copyright license for satellite carriage of significantly viewed signals and moved that license from the distant signal statutory copyright license provisions in 17 U.S.C. 119(a)(3) to the local signal statutory copyright license provisions in 17 U.S.C. 122(a)(2). STELA sec. 103. By doing so, Congress defined significantly viewed signals as another type of local signal, rather than as an exception to distant signal status. The move to the local license also meant that the significantly viewed signal license would not expire. STELA sec. 107(a). In the STELA Significantly Viewed Report and Order, the Commission revised its satellite television significantly viewed rules to facilitate satellite carriage of significantly viewed stations and thereby provide satellite subscribers with greater choice of programming and to improve parity and competition between satellite and cable carriage of broadcast stations. STELA Significantly Viewed Report and Order, para. 55.

    15 In section 102 of the STELAR, Congress intended to “create a television market modification process for satellite carriers similar to the one already used for cable operators.” Senate Commerce Committee Report at 6. The STELAR also makes a variety of reforms to the video programming distribution laws and regulations that are not relevant to our implementation here of this section.

    6. Section 338 of the Communications Act authorizes satellite carriage of local broadcast stations into their local markets, which is called “local-into-local” service.16 Specifically, a satellite carrier provides “local-into-local” service when it retransmits a local television signal back into the local market of that television station for reception by subscribers.17 Generally, a television station's “local market” is defined by the Designated Market Area (DMA) in which it is located, as determined by the Nielsen Company (Nielsen).18 DMAs describe each television market in terms of a group of counties and are defined by Nielsen based on measured viewing patterns.19 The United States is divided into 210 DMAs.20 Unlike cable operators, satellite carriers are not required to carry local broadcast television stations. However, if a satellite carrier chooses to carry a local station in a particular DMA in reliance on the statutory copyright license, it generally must carry any qualified local station in the same DMA that makes a timely election for retransmission consent or mandatory carriage.21 This is commonly referred to as the “carry one, carry all” requirement. If a broadcaster elects retransmission consent, the satellite carrier and broadcaster negotiate the terms of a retransmission consent agreement. With respect to those stations electing mandatory carriage, satellite carriers are generally not required to carry a station if the station's programming “substantially duplicates” 22 that of another station carried by the satellite carrier in the DMA,23 and satellite carriers are not required to carry more than one affiliate station of a particular network in a DMA (even if the affiliates do not substantially duplicate their programming), unless the stations are licensed to communities in different states.24 Satellite carriers are also not required to carry an otherwise qualified station if the station fails to provide a good quality signal to the satellite carrier's local receive facility.25

    16See 47 U.S.C. 338(a)(1).

    17 47 CFR 76.66(a)(6).

    18See 17 U.S.C. 122(j)(2); 47 CFR 76.66(e) (defining a television broadcast station's local market for purposes of satellite carriage as the DMA in which the station is located). We note that a commercial television broadcast station's local market for purposes of cable carriage is also generally defined as the DMA in which the station is located. See 47 U.S.C. 534(h)(1)(C); 47 CFR 76.55(e)(2).

    19 The Nielsen Company delineates television markets by assigning each U.S. county (except for certain counties in Alaska) to one market based on measured viewing patterns both off-air and via MVPD distribution. Generally, each U.S. county is assigned exclusively to the market whose stations receive the preponderance of the audience in that county. However, in a few cases where a county is large and viewing patterns differ significantly between parts of the county, a portion of the county is assigned to one television market and another portion of the county is assigned to another market. Several counties in Alaska are not assigned to any DMA. Retransmission Consent and Exclusivity Rules: Report to Congress Pursuant to Section 208 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, 2005 WL 2206070, at para. 53, n.177 (Sept. 8, 2005) (SHVERA Report); see also Nielsen Media Research, Glossary of Media Terms, at http://www.nielsenmedia.com/glossary/.

    20 DMAs frequently cross state lines and thus may include counties from multiple states.

    21See 17 U.S.C. 122; 47 U.S.C. 338(a)(1); 47 CFR 76.66(b)(1). DISH Network currently provides local service to all 210 DMAs, and DIRECTV currently provides local service to 198 DMAs, according to the most recent Local Network Channel Broadcast Reports filed by these satellite carriers. 47 U.S.C.A. 338 Note. These annual reports were initially required for five years by section 305 of the STELA and were continued to be required for another five years by section 108 of the STELAR.

    22 “A commercial television station substantially duplicates the programming of another commercial television station if it simultaneously broadcasts the identical programming of another station for more than 50 percent of the broadcast week.” 47 CFR 76.66(h)(6). “A noncommercial television station substantially duplicates the programming of another noncommercial station if it simultaneously broadcasts the same programming as another noncommercial station for more than 50 percent of prime time, as defined by [47 CFR] 76.5(n), and more than 50 percent outside of prime time over a three month period, provided, however, that after three noncommercial television stations are carried, the test of duplication shall be whether more than 50 percent of prime time programming and more than 50 percent outside of prime time programming is duplicative on a non-simultaneous basis.” 47 CFR 76.66(h)(7).

    23 47 U.S.C. 338(c)(1); 47 CFR 76.66(h)(1). “A satellite carrier may select which duplicating signal in a market it shall carry.” 47 CFR 76.66(h)(2).

    24 47 U.S.C. 338(c)(1); 47 CFR 76.66(h)(1). “A satellite carrier may select which network affiliate in a market it shall carry.” 47 CFR 76.66(h)(3). However, a satellite carrier must carry network affiliated television stations licensed to different states, but located in the same market, even if the stations meet the definition of substantial duplication under the Commission's rules. See Implementation of the Satellite Home Viewer Improvement Act of 1999: Broadcast Signal Carriage Issues, Retransmission Consent Issues, CS Docket Nos. 00-96 and 99-363, Report and Order, FCC 00-417, para. 80, 66 FR 7410, Jan. 23, 2001 (DBS Broadcast Carriage Report and Order). If two stations located in different states (but within the same local market) duplicate each other, but are not network affiliates, the satellite carrier only has to carry one. Id.

    25 47 U.S.C. 338(b)(1); 47 CFR 76.66(g)(1). A television station asserting its right to carriage is required to bear the costs associated with delivering a good quality signal to the designated local-receive-facility of the satellite carrier or to another facility that is acceptable to at least one-half the stations asserting the right to carriage in the local market. Id.

    7. STELAR section 102, which adds section 338(l) of the Act, creates a satellite market modification regime very similar to that in place for cable, while adding provisions to address the unique nature of satellite television service.26 Market modification, which has been available in the cable carriage context since 1992,27 will allow the Commission to modify the local television market of a commercial television broadcast station to enable those broadcasters and satellite carriers to better serve the interests of local communities.28 Market modification provides a means to avoid rigid adherence to DMA designations and to promote consumer access to in-state and other relevant television programming.29 To better reflect market realities and effectuate these purposes, section 338(l), like the corresponding cable provision in section 614(h)(1)(C), permits the Commission to add communities to, or delete communities from, a station's local television market following a written request.30 Furthermore, as in the cable carriage context, the Commission may determine that particular communities are part of more than one television market.31 As in the cable carriage context, when the Commission modifies a station's market to add a community for purposes of carriage rights, the station is considered local and is covered by the local statutory copyright license and may assert mandatory carriage (or pursue retransmission consent) by the applicable satellite carrier in the local market.32 Conversely, if the Commission modifies a station's market to delete a community, the station is considered “distant” and loses its right to assert mandatory carriage (or retransmission consent) on the applicable satellite carrier in the local market.33 We note that, in the cable carriage context, market modifications pertain to individual stations in specific cable communities and apply only to the particular cable system named in the petition.34

    26See 47 U.S.C. 338(l), 534(h)(1)(C).

    27See 47 CFR 76.59.

    28See In-State Broadcast Programming: Report to Congress Pursuant to Section 304 of the Satellite Television Extension and Localism Act of 2010, MB Docket No. 10-238, Report, DA 11-1454, paras. 55-59 (MB rel. Aug. 29, 2011) (In-State Programming Report) (stating that “market modifications could potentially address special situations in underserved areas and facilitate greater access to local information”). See also Broadcast Localism, MB Docket No. 04-233, Report on Broadcast Localism and Notice of Proposed Rulemaking, FCC 07-218, paras. 49-50, 73 FR 8255, Feb. 13, 2008 (Broadcast Localism Report).

    29Broadcast Localism Report, para. 50. The Commission has observed that, in some cases, general reliance on DMAs to define a station's market may not provide viewers with the most local programming. Id. at paras. 49-50. Certain DMAs cross state borders and, in such cases, current Commission rules sometimes require carriage of the broadcast signal of an out-of-state station rather than that of an in-state station. Id. The Commission has observed that such cases may weaken localism, since viewers are often more likely to receive information of local interest and relevance—particularly local weather and other emergency information and local news and electoral and public affairs—from a station located in the state in which they live. Id.

    30 47 U.S.C. 338(l)(1), 534(h)(1)(C).

    31 47 U.S.C. 338(l)(2)(A).

    32 Section 204 of the STELAR amends the local statutory copyright license in 17 U.S.C. 122 to the effect that when the Commission modifies a station's market for purposes of satellite carriage rights, the station is considered local and is covered by the local statutory copyright license. See 17 U.S.C. 122(j)(2)(E) (as amended by STELAR sec. 204); 47 U.S.C. 338. See also 17 U.S.C.U.S.C. 111(f)(4) (defining “local service area of a primary transmitter” for cable carriage copyright purposes); 47 U.S.C. 534(h)(1)(C).

    33 See id.

    34See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues, MM Docket No. 92-259, Report and Order, FCC 93-144, para. 47, 58 FR 17350, April 2, 1993 (Must Carry Order) (stating that “the statute is intended to permit the modification of a station's market to reflect its individual situation”); 47 CFR 76.59.

    8. Section 338(l) states that, in ruling on requests for market modifications for purposes of satellite carriage, the Commission must afford particular attention to the value of localism by taking into account the following five factors:

    (1) Whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community;

    (2) Whether the television station provides coverage or other local service to such community;

    (3) Whether modifying the local market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence;

    (4) Whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and

    (5) Evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community.35

    35 47 U.S.C. 338(l)(2)(B)(i) through (v) (discussed in section III.B. below).

    These statutory factors largely mirror those originally set forth for cable in section 614(h)(1)(C)(ii) of the Act. To the extent the factors differ from the previous factors applicable to cable, the STELAR section 102 makes conforming changes to the cable factors.36 These include adding a fifth factor (inserted as factor number three) to section 614(h)(1)(C)(ii) to “promote consumers' access to television broadcast station signals that originate in their State of residence.” 37 Thus, STELAR creates parallel factors for satellite and cable.38

    36See 47 U.S.C. 534(h)(1)(C)(ii), as amended by STELAR sec. 102(b).

    37See 47 U.S.C. 534(h)(1)(C)(ii)(III) (“whether modifying the market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence”).

    38 Shortly after our final rules are published in the Federal Register, we will implement section 102(c) of the STELAR by creating a consumer guide that will explain the market modification rules and procedures as revised and adopted in this proceeding, and by posting the guide on the Commission's Web site. Section 102(c) requires the Commission to “make information available to consumers on its Web site that explains the market modification process.” STELAR 102(c); 47 U.S.C.A. 338 Note. Such information must include: “(1) who may petition to include additional communities within, or exclude communities from, a—(A) local market (as defined in section 122(j) of title 17, United States Code); or (B) television market (as determined under section 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 534(h)(1)(C))); and (2) the factors that the Commission takes into account when responding to a petition described in paragraph (1).” See 47 U.S.C. 338(l)(2)(B)(i) through (v); 47 U.S.C. 534(h)(1)(C)(ii)(I) through (V).

    9. The STELAR, however, provides a unique exception applicable only in the satellite context, providing that a market modification:

    shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.39

    39 47 U.S.C. 338(l)(3)(A) (discussed in section III.D. below).

    Also unique to satellite, the STELAR provides that a market modification will not have “any effect on the eligibility of households in the community affected by such modification to receive distant signals pursuant to section 339 [of the Act].” 40 Like the cable provision, section 338(l) gives the Commission 120 days to act on a request for market modification and does not allow a carrier to delete from carriage the signal of a commercial television station during the pendency of any market modification proceeding.41

    40 47 U.S.C. 338(l)(5) (discussed in section III.E. below). Section 339 of the Act provides for the satellite carriage of distant stations under certain conditions. See 47 U.S.C. 339.

    41 47 U.S.C. 338(l)(3)(B), (4).

    10. On March 26, 2015, we began this proceeding by issuing a Notice of Proposed Rulemaking (NPRM).42 We received 12 comments and five reply comments in response. With this Report and Order, we satisfy the STELAR's mandate that the Commission adopt final rules in this proceeding on or before September 4, 2015.43

    42Amendment to the Commission's Rules Concerning Market Modification; Implementation of Section 102 of the STELA Reauthorization Act of 2014; MB Docket No. 15-71, Notice of Proposed Rulemaking, FCC 15-34, 80 FR 19594, Apr. 13, 2015 (NPRM).

    43 STELAR sec. 102(d)(1).

    III. Discussion

    11. Consistent with the STELAR's goal of regulatory parity, we largely model the satellite market modification process on the existing process for cable and adopt our proposal to amend section 76.59 of our rules—the current cable market modification rule—to apply in both the cable and satellite contexts.44 We also adopt our proposal to amend section 76.59 to reflect the STELAR provisions that apply uniquely to satellite carriers, such as affording carriers with an exception if the resulting carriage is “not technically and economically feasible .” Finally, we define a “satellite community” for purposes of market modification and retain our existing definition of a “cable community.”

    44See 47 CFR 76.59.

    A. Standing and Procedures To Request Market Modification

    12. We conclude that the involved broadcaster, satellite carrier and county government may file a satellite market modification petition.45 We choose a slightly modified alternative to the procedure proposed in the NPRM,46 and deviate from the cable rule which allows only the involved broadcaster and cable operator to file cable petitions, in order to more fully effectuate the core purpose of this provision of the STELAR to promote consumer access to in-state and other relevant programming.

    45See 47 CFR 76.59(a).

    46NPRM, para. 8.

    13. Section 338(l)(1) of the Act permits the Commission to modify a local television market “following a written request,” but does not specify the appropriate party to make such requests.47 The corresponding cable statutory provision in section 614(h)(1)(C)(i) of the Act contains nearly identical language in this regard.48 In interpreting the cable provision, the Commission concluded that the involved broadcaster and cable operator are the only appropriate parties to file market modification requests.49 Section 102(d) of the STELAR, however, directs the Commission to ensure in both the cable and satellite contexts that “procedures for the filing and consideration of a written request . . . fully effectuate the purposes of the amendments made by this section.” 50 In the NPRM, consistent with the cable rule, we proposed to allow only the involved commercial broadcast station or the satellite carrier to file a satellite market modification request because only these entities have carriage rights or obligations at stake.51 The NPRM sought comment on any alternative approaches and observed that some local governments had previously sought the ability to petition for market modifications on behalf of their citizens.52 The NPRM tentatively concluded to limit the participation of local governments and individuals to filing comments in support of, or in opposition to, particular market modification requests and sought comment on this tentative conclusion.53 Broadcasters and the satellite carriers supported the NPRM's proposal, asserting that only the involved station or satellite carrier “have rights or obligations that are directly affected by a market modification” and therefore only such entities should have standing to file requests to modify these rights or obligations.54 Some commenters, however, advocate that county governments should be allowed to petition for market modifications on behalf of their citizens.55

    47 47 U.S.C. 338(l)(1).

    48 47 U.S.C. 338(l)(1) (“Following a written request, the Commission may, with respect to a particular commercial television broadcast station, include additional communities within its local market or exclude communities from such station's local market to better effectuate the purposes of this section.) See 47 U.S.C. 534(h)(1)(C)(i) (“For purposes of this section, a broadcasting station's market shall be determined by the Commission by regulation or order using, where available, commercial publications which delineate television markets based on viewing patterns, except that, following a written request, the Commission may, with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. . . .”).

    49See Must Carry Order, para. 46; John Wiegand v. Post Newsweek Pacifica Cable, Inc., CSR 4179-M, Memorandum Opinion and Order, FCC 01-239 (rel. Aug. 24, 2001) (Wiegand v. Post Newsweek) (limiting standing in the must carry and market modification contexts to the affected broadcaster or cable operator). The Commission reasoned that “the fact that Congress made must carry an elective choice for broadcasters diminishes the argument that third parties have standing to demand carriage of a broadcast station on a cable system. A subscriber's ability to receive the benefits provided from must carry is predicated upon a station's election to exercise its rights under the statute. No statute or Commission rule requires a broadcaster to allow its signal to be carried on a local cable system because another party wishes to view it. Instead, broadcasters are given a choice whether to demand carriage under must carry, to negotiate carriage under the retransmission consent provisions, or not to be carried on a particular cable system at all.” See Wiegand v. Post Newsweek, para. 10.

    50 STELAR sec. 102(d)(2) directs the Commission to consider as part of this rulemaking whether the “procedures for the filing and consideration of a written request under sections 338(l) and 614(h)(1)(C) of the Communications Act of 1934 (47 U.S.C. 338(l); 534(h)(1)(C)) fully effectuate the purposes of the amendments made by this section.” See 47 U.S.C.A. 338 Note.

    51NPRM, para. 8.

    52NPRM, para. 9. See In-State Programming Report, para. 58.

    53Id. The NPRM also asked “how else satellite subscribers or their representatives can meaningfully advocate for the receipt of in-state programming via satellite.” Id.

    54 DIRECTV Comments at 7, n.20; DISH Comments at 3; NAB Comments at 3-4. See NPRM, para. 8.

    55See Letter from Michael F. Bennet, U.S. Senator, Colo.; Cory Gardner, U.S. Senator, Colo.; and Scott Tipton, U.S. Representative, Colo. to Tom Wheeler, Chairman, FCC, dated April 14, 2015 at (“Sen. Bennet et al. Letter”). See also Letter from Mike D. Rogers, U.S. Representative, Ala.; Robert Aderholt, U.S. Representative, Ala. to Tom Wheeler, Chairman, FCC dated May 12, 2015 at 1 (“Rep. Rogers et al. Letter”) (seeking role in market modification process for Counties, Parishes or the equivalent political subdivisions). Although no local government comments were filed in this docket, commenters in the docket relating to the STELA In-State Programming Report advocated to allow consumer concerns to be addressed more directly by permitting local governments to petition for market modifications on behalf of their citizens. See In-State Programming Report, para. 58.

    14. Upon further consideration pursuant to section 102(d) of the STELAR, we conclude that we will better effectuate the purposes of the STELAR (to promote consumer access to in-state programming) by also permitting a county governmental entity (such as a county board, council, commission or other equivalent subdivision) to file a satellite market modification petition, as advocated by some commenters.56 Allowing a county government to petition for market modification for its community is appropriate given our decision to define a satellite community on a county basis.57 We also are mindful of the record in the In-State Programming Report proceeding, which reflects numerous examples of counties in which consumers have little or no access to in-state broadcast stations.58 We acknowledge that station carriage relies in part on business decisions involving broadcasters and satellite carriers and that without the willing participation of the affected broadcaster, modifying the market of a particular television station, in itself, would not result in consumer access to that station.59 However, by allowing a county government to file a satellite market modification on behalf of its residents, we seek to empower orphan counties to eliminate certain legal barriers which may have deprived local residents of the cultural, sports, political and local news relevant to the state in which they reside.60 We recognize that our rules require petitioners to provide specific evidence to demonstrate the five statutory factors and that much of this information may not be easily obtained by county governments.61 To avoid dismissal based on a failure to meet our specific evidentiary requirements, we strongly encourage county government petitioners to enlist the aid and cooperation of the station they wish to bring to their county. Moreover, to the extent the involved station opposes carriage in the county, a county government may not want to go through the time and expense of filing a petition to expand such station's market to include its county.

    56See id.

    57See infra section III.F. (Definition of Community). We note that a county (or its political equivalent) was the only jurisdictional definition for which commenters in this proceeding sought the ability to file market modification petitions.

    58See In-State Programming Report, at App. F (Case Studies) (discussing 35 counties in 13 DMAs with little or no access to in-state broadcast stations via satellite service). The In-State Programming Report, also described the impact on consumers in these orphan counties. See id. at para. 18 (“Because the DMA may include one or more counties located in a different state from that of the DMA's principal city or cities where most of the local television stations originate, some consumers through their MVPD, may receive only out-of-state stations and thereby lack access to in-state programming, including political and election coverage, public affairs programming, and weather and other emergency information. Consumers from disparate areas throughout the nation comment that they are deprived of vital information that is overwhelmingly available to other households across the country. Consumers in affected areas typically do not have access to programming content from in-state local television stations that cover the issues emanating from their state capitals and, as a result, believe they are less well served by the broadcast programming they are able to receive. Without such state-focused information and programming content, consumers express frustration at their inability to make informed election and other civic decisions. Additionally, some consumers indicate that they would prefer television advertising that supports their state economies rather than the out-of-state advertisements that air on the in-market stations they receive. Commenters opine that their inability to access in-state advertising has a continuing negative impact on their communities through the loss of revenue.”). We also note that consumers have raised similar concerns in the record for the Commission's pending Report to Congress on DMAs required by section 109 of the STELAR. See, e.g., Leroy Axtell Comments (seeking in-state stations for Fairfield County, CT); Spencer Karter Comments (seeking in-state stations for Greenville County, SC); Richard Bolt Comments in MB Docket No. 15-43 (filed May 15, 2015) (seeking in-state stations for Garrett County, MD); Kyle Ramie Comments in MB Docket No. 15-43 (filed May 6, 2015), Timothy Brastow Comments in MB Docket No. 15-43 (filed Mar. 24, 2015) and Jerome Gibbs Comments in MB Docket No. 15-43 (filed Jun. 2, 2015) (each seeking in-state stations for Bristol County, MA).

    59NPRM, para. 9. See Wiegand v. Post Newsweek, para. 11(“[t]he granting of a request to expand the market of a television station merely allows a broadcaster the option to seek must carry status on cable systems added to its market. A broadcaster is not required to seek carriage of its signal on all of the cable systems in its market.”). Likewise, in the satellite context, the granting of a request to expand the market of a television station merely allows a broadcaster the option to seek mandatory carriage with respect to the new community, but does not require the broadcaster grant retransmission consent for it to be carried in the new community. Thus, our decision here about standing to file a satellite market modification should not be construed as affording a county government a right to demand carriage of a particular station via satellite in its county. Notwithstanding the grant of a petition to modify a market, a local broadcast station that elects retransmission consent with respect to the new community may not be carried without its express written consent. See 47 U.S.C. 325(b)(1) (“No cable system or other multichannel video programming distributor shall retransmit the signal of a broadcasting station, or any part thereof, except (A) with the express authority of the originating station”); 47 CFR 76.66.

    60See Sen. Bennet et al. Letter at 1 (seeking to “facilitate the ability of a community to voice its own opinion about the local television content that it would prefer to access”). We also note that local government and consumer comments in a market modification proceeding can help demonstrate a station's nexus to the community at issue. See Sen. Bennet et al. Letter at 1; Rep. Rogers et al. Letter at 1 (seeking to “allow Counties, Parishes or the equivalent political subdivisions to make public comments about the television content their community prefers.”). For example, the Commission can consider consumer comments pursuant to the second statutory factor relating to a station's local service to a community. See 47 U.S.C. 338(l)(2)(B)(ii), 534(h)(1)(C)(ii)(II); Tennessee Broadcasting Partners, CSR 7596-A, Memorandum Opinion and Order, DA 08-542, paras. 22-37 (MB rel. Mar. 10, 2008) (considering statements made by local officials).

    61See infra at para. 20 (Evidentiary Requirements). For example, a petitioner must provide contour maps and published audience data for the involved broadcast station.

    15. We acknowledge that we are implementing a procedural aspect of section 338(l)(1) in a manner that differs from our implementation of section 614(h)(1)(C)(i), despite the nearly identical language of the two provisions.62 We find that a different procedure is appropriate to implement STELAR's directive in section 102(d) for purposes of filing a market modification petition in the satellite context. Significantly, the record and case studies in the 2011 In-State Programming Report show that the problem of subscriber access to in-state stations disproportionately affects satellite subscribers.63 Notably, the Commission frequently receives satellite consumer calls about this problem and other complaints about not receiving the consumers' desired local station via satellite, while cable consumers rarely complain about this issue.64 This may be a product of the localized nature of cable systems as opposed to the national nature of satellite service.65 The remote geographic location of orphan counties also contributes to the disproportionate impact on satellite subscribers. In the In-State Programming Report record, DIRECTV observed that “[b]ecause many orphan counties tend to be isolated, their residents tend to rely more on satellite than on cable for access to television programming.” 66 We also observe that the cable market modification process has worked well for more than 20 years and there is nothing in the record to suggest that changing the cable petition process to include local governments is necessary to effectuate the goals of the STELAR (to promote access to in-state programming) at this time.

    62See 47 U.S.C. 338(l)(1); 47 U.S.C. 534(h)(1)(C)(i).

    63See In-State Programming Report, at App. F (Case Studies) (discussing 35 counties in 13 DMAs with little or no access to in-state broadcast stations via satellite service). The BIA/Kelsey study submitted by NAB in the In-State Programming Report docket also illustrates this point, estimating that 0.1 percent of cable subscribers do not receive at least one in-state television station, while 2.2 percent of DISH subscribers do not receive at least one in-state television station and 6.1 percent of DIRECTV subscribers do not receive at least one in-state TV station. In-State Programming Report, para. 44.

    64 According to staff review, at least 165 consumers have called the Commission's call center in 2015 to complain that their satellite carrier does not carry a particular station. See also, e.g., Leroy Axtell Comments at 1 (Fairfield County, Connecticut resident explaining that “Comcast and Frontier cable carry New York and Hartford/New Haven television channels,” while “Directv and Dish can presently carry only New York channels.”)

    65See Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004, Implementation of Section 340 of the Communications Act, MB Docket No. 05-49, Report and Order, FCC 05-187, para. 44, 70 FR 76504, December 27, 2005 (2005) (SHVERA Significantly Viewed Report and Order).

    66 DIRECTV Comments in MB Docket No. 10-238 (filed Jan. 24, 2011) at 3-4, n.8.

    16. We adopt our proposal to require petitioners (i.e., broadcast stations, satellite carriers and county governments) to file market modification requests for satellite carriage purposes in accordance with the procedures for filing Special Relief petitions in section 76.7 of the rules.67 Commenters on this issue generally support our proposal.68 Consistent with section 76.7, a petitioner must serve a copy of its market modification request on any MVPD operator, station licensee, permittee, or applicant, or other interested party who is likely to be directly affected if the relief requested is granted, and we amend section 76.7(a)(3), accordingly, to reference “any MVPD operator.” 69 The NPRM sought comment on whether franchising authorities or certain local government entities (such as cities, counties, or towns) that may represent subscribers and local viewers in affected communities should be considered “interested parties” and served with market modification petitions.70 Consistent with our decision above to permit a county government to file a petition, we find that the relevant county government is an “interested party” that must also be served with a satellite market modification petition.71

    67NPRM, para. 10. See 47 CFR 76.59(b). A fee is generally required for the filing of Special Relief petitions; 47 CFR 1.1104, 1.1117, 76.7. We remind filers that Special Relief petitions must be submitted electronically using the Commission's Electronic Comment Filing System (ECFS). See Media Bureau Announces Commencement of Mandatory Electronic Filing for Cable Special Relief Petitions and Cable Show Cause Petitions Via the Electronic Comment Filing System, Public Notice, DA 11-2095 (MB rel. Dec. 30, 2011). Petitions must be initially filed in MB Docket No. 12-1. Id.

    68 NAB Comments at 3.

    69See 47 CFR 76.7(a)(3).

    70See NPRM, para. 10. No parties filed comments advocating that cable franchise authorities be served with satellite market modification requests. We decline to require such notifications, given that cable franchising authorities have no role in satellite regulation. See DIRECTV Comments at 7, n.20; UCC Comments at 8.

    71 If after due diligence, a petitioner is unable to identify the appropriate county government on which to serve its petition, the petitioner should request Commission staff assistance in this regard.

    B. Statutory Factors and Evidentiary Requirements

    17. As discussed above, the purpose of market modification is to permit adjustments to a particular station's local television market (which is initially defined by the DMA in which it is located) to better serve the value of localism by ensuring that satellite subscribers receive the broadcast stations most relevant to them.72 To this end, the STELAR requires the Commission to consider five statutory factors when evaluating market modification requests.73 As noted, the STELAR added a fifth factor (inserted as the new third statutory factor) for both cable and satellite to “promote consumers' access to television broadcast station signals that originate in their State of residence.” 74 In the NPRM, we tentatively concluded that this new third statutory factor is intended to favor a market modification to add a new community 75 if doing so would increase consumer access to in-state programming.76 In the record, NAB and DISH appear to support this general conclusion; however, DISH states that we should consider under this factor whether the new community lacks any (or an adequate number of) in-state stations, while NAB states that the statutory language imposes no such requirement.77 In addition, NCTA expresses concerns about how we may evaluate market modification petitions under this new in-state factor, particularly in situations that would grant cable carriage rights to previously uncarried in-state stations.78

    72See 47 U.S.C. 338(l)(2)(B), 534(h)(1)(C)(ii) (requiring the Commission to “afford particular attention to the value of localism” by taking into account the five statutory factors).

    73See supra para. 8. The Commission must also consider other relevant information to develop a result that is designed to “better effectuate the purposes” of the law. See 47 U.S.C. 338(l)(1); Definition of Markets for Purposes of the Cable Television Broadcast Signal Carriage Rules, CS Docket No. 95-178, Order on Reconsideration and Second Report and Order, FCC 99-116, para. 53, 64 FR 33788, Jun. 24, 1999 (Cable Market Modification Second Report and Order).

    74 47 U.S.C. 338(l)(2)(B)(iii), 534(h)(1)(C)(ii)(III). We will refer to this new third statutory factor as the “in-state factor.”

    75 For purposes of our discussion, by “new community” we refer to a new community to be added to a station's local television market by grant of the prospective market modification.

    76NPRM, para. 11. The NPRM also asked if we should “require the petitioner to show that the station at issue is licensed to a community within the state in which the modification is requested and that the DMA at issue lacks any (or an adequate number of) in-state stations?” NPRM, para. 13.

    77See DISH Comments at 3-4; NAB Comments at 5.

    78See NCTA Reply at 2-4.

    18. We conclude that the in-state factor favors any market modification that would promote consumers' access to an in-state station.79 The language of this new statutory factor speaks clearly in this regard.80 Therefore, a petitioner will be afforded credit for satisfying this factor simply by showing that the involved station is licensed to a community within the same state as the new community.81 We disagree with those commenters that sought a requirement for more substantial showings, such as the lack of in-state stations in the new community, in order to get credit for satisfying this factor.82 We find that such additional showings are not necessary to satisfy this factor. We read the statutory language—in requiring the Commission to consider whether the prospective modification would “promote” consumers' access to television broadcast station “signals” that originate in their state of residence—as applying to any situation that would increase access to in-state stations, regardless of whether there are other in-state stations present in the new community.83 However, we find that such additional showings can increase the weight afforded to this factor. For example, this factor may be found to weigh more heavily in favor of modification if the petitioner shows the involved station provides programming specifically related to subscribers' state of residence, and may be given even more weight if such subscribers in the new community had little (or no) access to such in-state programming.84 We find that this interpretation of the factor will better effectuate its purpose, observing that the legislative history expresses Congress' concern that “many consumers, particularly those who reside in DMAs that cross State lines or cover vast geographic distances,” may “lack access to local television programming that is relevant to their everyday lives” and indicates Congress' intent that the Commission “consider the plight of these consumers when judging the merits of a [market modification] petition . . ., even if granting such modification would pose an economic challenge to various local television broadcast stations.” 85 We clarify, however, that this new factor is not universally more important than any of the other factors and its relative importance will vary depending on the circumstances in a given case.86 In sum, in market modification petitions involving the addition of an in-state broadcaster, the in-state factor does not serve as a trump card negating the other four statutory factors. Instead, where applicable, we believe the in-state factor serves as an enhancement, the particular weight of which depends on the strength of showing by the petitioner. Ultimately, each petition for market modification will turn on the unique facts of the case.87

    79See 47 U.S.C. 338(l)(2)(B)(iii) (“whether modifying the market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence”).

    80See id. See also NAB Comments at 5.

    81See infra at para. 20 (Evidentiary Requirements).

    82See DISH Comments at 4 (stating “a petitioner should have to `show . . . that the DMA at issue lacks any (or an adequate number of) in-state stations'”); NCTA Comments at 3 (stating “the Commission should assess whether cable customers already receive television stations that provide in-state coverage”).

    83See NAB Comments at 5 (“The statute does not suggest that the Commission should take into account only those in-state market modification requests that would help to remedy a complete absence—or some minimum number—of in-state broadcast stations.”).

    84See NAB at 5 (“Consideration of the `in-state signal' statutory factor also could involve an evaluation of programming or advertising on that station.”) We note that our analysis of the in-state nature of the programming would be similar to our analysis of the local nature of the programming under the second statutory factor and would consider whether the television station provides programming specifically related to the subscribers' state of residence. For example, under factor two, we consider whether the station has aired programming, such as news, politics, sports, weather and other emergency information, specifically targeted to the community at issue (e.g., town council meeting, news or weather event that occurred in the community, local emergencies, etc.). Under factor three, we would consider whether the station has aired programming, such as news, politics, sports, emergency information, specifically related to the state in which the community is located (e.g., coverage of state politics and legislative matters, state sports team coverage, state emergency information, etc.).

    85Senate Commerce Committee Report at 11.

    86See Cable Market Modification Second Report and Order, para. 59 (stating that “it is inappropriate to state that one factor is universally more important than any other, as each is valuable in assessing whether a particular community should be included or excluded from a station's local market, and the relative importance of particular factors will vary depending on the circumstances in a given case”). See also, e.g., NCTA Reply at 2 (stating that “[w]hile promoting access to in-state programming is one factor in the market modification process, Congress preserved the other four factors as well. In evaluating any market modification petitions going forward, therefore, the Commission must consider all of the factors.”); UCC Comments at 6 (stating that “the laudable goal of providing satellite subscribers with access to the signals of some television stations licensed to communities within the same state should not trump the value of local coverage provided by stations that happen to be licensed to communities in a different state so as to deprive satellite customers of access to the signals of those stations that are more truly `local' than the more distant same-state stations.”).

    87 For example, we agree with NCTA that we should consider the potential disruption to customers if grant of the modification request would displace service from a long-established network station. See NCTA Comments at 3-4 (stating “the Commission should consider the potential disruption to cable customers that could be caused by wholesale changes to markets. Market changes that would require operators to delete one group of broadcast stations in favor of another could upset long-established cable customer viewing patterns.”). The Bureau has previously considered, in the cable context, whether grant of the market modification would “upset the economic marketplace expectations underlying the network-affiliate relationship.” See, e.g., Broad Street Television, L.P., CSR-3868-A, Memorandum Opinion and Order, DA 95-1106, para. 12 (CSB rel. May 25, 1995); Guy Gannett Communications, Inc., CSR-5289-A, Memorandum Opinion and Order, DA 98-2464, para. 21 (CSB rel. Dec. 4, 1998), aff'd, Order on Reconsideration, DA 00-1325 (CSB rel. Jun. 19, 2000); Pacific & Southern Co., Inc., CSR-5326-A, Memorandum Opinion and Order, DA 99-628, para. 25 (CSB rel. Apr. 2, 1999); Harron Communications Corp., CSR-5325-A, Memorandum Opinion and Order, DA 99-627, para. 26 (CSB rel. Apr. 2, 1999); Free State Communications, LLC, CSR-8121-A, Memorandum Opinion and Order, DA 09-1206, para. 22 (MB rel. May 28, 2009). We note that, for must carry purposes, although cable operators are not required to carry duplicating stations or more than one local station affiliated with a particular network, if a cable system declines to carry duplicating stations, it must carry the station closest to the principal headend of the cable system, even if that station is from another state. See 47 CFR 76.56(b)(5). By contrast, in the satellite carriage context, a satellite carrier must carry two stations affiliated with the same network if they are from different states, see 47 U.S.C. 338(c)(1); 47 CFR 76.66(h)(1), and otherwise may select which duplicating station or network affiliate in a market it will carry. See 47 CFR 76.66(h)(2) through (3). Thus, the potential for market disruption is lower in the satellite context.

    19. We adopt our tentative conclusion that the new in-state factor is not intended to bar a market modification simply because it would not result in increased consumer access to an in-state station's programming.88 In such cases, we find that this new in-state factor would be inapplicable and the modification request would be evaluated based on the other statutory factors.89 Commenters on this issue support these tentative conclusions.90 We agree with commenters that the statute intended to promote access to in-state programming, but did not intend to disfavor other market modification requests.91

    88NPRM, para. 11.

    89Id.

    90See UCC Comments at 6-7; WVIR-TV Comments at 4; Tracy Comments at 1.

    91See UCC Comments at 6-7 (“STELAR did not intend to forestall market modification requests that would not have the effect of supplying in-state programming to residents of ‘orphan counties.’ ”); WVIR-TV Comments at 4 (asking Commission “not to confine any new rules to situations where a subscriber's community or county is assigned to an out-of-state DMA by Nielsen”); Tracy Comments at 1.

    20. Evidentiary Requirements. We adopt our proposal to apply the evidentiary requirements for cable market modifications to satellite market modifications.92 Commenters on this issue support this proposal.93 We find it appropriate, and that it promotes parity, to apply the same evidentiary requirements in both contexts, particularly given the same language is used in both the cable and satellite statutory factors and the record provides no basis for adopting a different interpretation in the satellite versus cable context.94 In addition, to implement our decision (above) that the in-state factor favors any market modification that would promote consumers' access to an in-state station, we require the petitioner to make a statement in its petition whether or not the station is licensed to a community within the same state as the new community.95 We find this sufficient evidence to show that a station's petition satisfies this factor. Accordingly, market modification requests for both satellite carriers and cable system operators must include the following evidence: 96

    92NPRM, para. 12.

    93See NAB Comments at 4-5; DISH Comments at 3-4.

    94 47 U.S.C. 338(l)(2)(B)(i) through (v), 534(h)(1)(C)(ii)(I) through (V).

    95See 47 CFR 76.59(b)(7). As noted above (see supra para. 18), to better effectuate the purpose of the law, we will consider (but not require) additional evidence showing the relevance of the in-state programming (including advertising) to the new community, as well as the absence of other in-state stations in the new community, to evaluate the strength afforded to this factor.

    96See 47 CFR 76.59(b)(1) through (7). To make section 76.59(b)(6) consistent with the language of the STELAR, we are also updating the rule to reflect the change from “evidence of viewing patterns in cable and noncable households . . .” to “evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors” in the fifth statutory factor (emphasis added). See 47 U.S.C. 338(l)(2)(B)(v), 534(h)(1)(C)(ii)(V).

    (1) A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market;

    (2) Noise-limited service contour maps (for full-power digital stations) or protected contour maps (for Class A and low power television stations) delineating the station's technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas.

    (3) Available data on shopping and labor patterns in the local market.

    (4) Television station programming information derived from station logs or the local edition of the television guide.

    (5) Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings.

    (6) Published audience data for the relevant station showing its average all day audience (i.e., the reported audience averaged over Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both multichannel video programming distributor (MVPD) and non-MVPD households or other specific audience indicia, such as station advertising and sales data or viewer contribution records.

    (7) If applicable, a statement that the station is licensed to a community within the same state as the relevant community.

    As discussed above, DISH and NCTA sought additional evidentiary requirements for a petitioner to satisfy the in-state factor.97 Because we decide that the in-state factor generally favors any market modification that would promote consumers' access to an in-state station, we reject the suggestions by DISH and NCTA to require more evidence in this regard. As explained above, however, a petitioner may offer evidence concerning whether the television station provides programming specifically related to the subscribers' state of residence, as well as the lack of other in-state stations providing service to subscribers in the new community, to demonstrate that the in-state factor should be afforded even greater weight.98

    97See DISH Comments at 4 (suggesting that petitioners be required to “submit evidence to demonstrate that a substantial portion of the population in the geographic area covered by the request supports the change”); NCTA Reply at 3 (suggesting that petitioning broadcasters “should demonstrate a historical pattern of providing significant in-state programming that is not otherwise available on the local DMA broadcast stations (or on any other station already carried on the system)”). WVIR-TV opposed the DISH proposal, stating “DISH's suggestion that a broadcaster seeking to be added to a market provide evidence of popular demand by viewers goes far beyond what is required in the cable context and should not be adopted.” WVIR-TV Reply at 5.

    98See supra para. 18.

    21. In addition, we adopt our proposal to revise section 76.59(b)(2) of the rules to add a reference to the digital noise-limited service contour (NLSC), which is the relevant service contour for a full-power station's digital signal.99 NAB, the only commenter on this issue, supports our proposal.100 Section 76.59(b)(2) requires petitioners seeking a market modification to provide Grade B contour maps delineating the station's technical service area;101 however the Grade B contour defines an analog television station's service area.102 Since the completion of the full power digital television transition on June 12, 2009, there are no longer any full power analog stations and, therefore, the Commission uses the NLSC set forth in 47 CFR 73.622(e),103 in place of the analog Grade B contour set forth in 47 CFR 73.683(a), to describe a full power station's technical service area.104 Since the DTV transition, the Media Bureau has required full power stations to provide NLSC maps, in place of Grade B contour maps, for purposes of cable market modifications.105 Therefore, we adopt our tentative conclusion that section 76.59(b)(2) should be updated for purposes of market modifications in both the cable and satellite contexts. We also delete the reference in the rule to the Grade B contour because that reference has no relevance in the absence of full-power analog stations. We observe that, in the rare situation in which a Class A or LPTV station might seek a market modification, the relevant service contour for such stations would be its “protected contour.” 106 Accordingly, we revise our rule to reflect this contour.

    99NPRM, para. 14; 47 CFR 76.59(b)(2).

    100 NAB Comments at 4.

    101 47 CFR 76.59(b)(2).

    102See 47 CFR 73.683(a).

    103 As set forth in section 73.622(e), a full-power station's DTV service area is defined as the area within its noise-limited contour where its signal strength is predicted to exceed the noise-limited service level. See 47 CFR 73.622(e).

    104See STELA Significantly Viewed Report and Order, para. 51 (stating that the digital NLSC is “the appropriate service contour relevant for a station's digital signal”); 2010 Quadrennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, MB Docket No. 09-182, Notice of Inquiry, FCC 10-92, para. 103, 75 FR 33227, June 11, 2010 (stating that the Commission developed the digital NLSC to approximate the same probability of service as the Grade B contour and has stated that the two are roughly equivalent); Report To Congress: The Satellite Home Viewer Extension And Reauthorization Act of 2004; Study of Digital Television Field Strength Standards and Testing Procedures; ET Docket No. 05-182, FCC 05-199, para. 111 (rel. Dec. 9, 2005). Since the DTV transition, the Media Bureau has used the digital NLSC in place of the analog Grade B contour in the cable context. See, e.g., KXAN, Inc., CSR-7825-N, Memorandum Opinion and Order, DA 10-589, para. 8 n.32 (MB rel. Apr. 1, 2010) (using the NLSC in place of the Grade B contour for purposes of the cable network non-duplication and syndicated program exclusivity rules). Congress has also acted on the presumption that the two standards are roughly equivalent, by adopting parallel definitions for households that are “unserved” by analog (measured by Grade B) or digital (measured by NLSC) broadcasters in the STELA legislation enacted after the DTV transition. See 17 U.S.C.U.S.C. 119(d)(10)(A)(i).

    105See, e.g., Tennessee Broadcasting Partners, CSR-7596-A, Order on Reconsideration, DA 10-824, para. 6, n.14 (MB rel. May 12, 2010) (stating, in a market modification order, that the Commission has treated a digital station's NLSC as the functional equivalent of an analog station's Grade B contour); Lenfest Broadcasting, LLC, CSR-6278-A, Memorandum Opinion and Order, DA 04-1414, para. 7, n.27 (MB rel. May 20, 2004).

    106 The relevant technical service area for Class A and LPTV stations is defined by their protected contour, as defined in sections 73.6010 (Class A), 74.707 (analog LPTV) and 74.792 (digital LPTV) of the rules; 47 CFR 73.6010, 74.707, 74.792. Although LPTV stations are not entitled to mandatory satellite carriage, see 47 U.S.C. 338(a)(3), LPTV stations may be entitled to mandatory cable carriage, but only in limited circumstances. Both the Communications Act and the Commission's rules mandate that only a minimum number of qualified low power stations must be carried by cable systems, see 47 U.S.C. 534(c)(1); 47 CFR 76.56(b)(3), and, in order to qualify, such stations must meet several criteria. See 47 U.S.C. 534(h)(2)(A) through (F); 47 CFR 76.55(d)(1) through (6). Class A stations have the same limited must carry rights as LPTV stations; in other words, they are “low power stations” for mandatory carriage purposes. See Establishment of a Class A Television Service, MM Docket No. 00-10, Memorandum Opinion and Order on Reconsideration, FCC 01-123, paras. 40-42, 66 FR 21681, May 1, 2001. Finally, we note that the Media Bureau recently suspended the September 1, 2015 digital transition deadline for LPTV stations. (The Bureau's action did not affect the September 1, 2015 digital transition deadline for Class A stations.) See Suspension of September 1, 2015 Digital Transition Date for Low Power Television and TV Translator Stations, MB Docket No. 03-185, Public Notice, DA 15-486, 80 FR 27862, May 15, 2015.

    22. Consistent with the cable carriage rule, we adopt our proposals that satellite market modification requests that do not include the required evidence be dismissed without prejudice and that they may be supplemented and re-filed at a later date with the appropriate filing fee.107 In addition, consistent with the cable carriage rule, we adopt our proposal that, during the pendency of a market modification petition before the Commission, satellite carriers will be required to maintain the status quo with regard to signal carriage and must not delete from carriage the signal of an affected commercial television station.108 NAB, the only commenter on these issues, supports our proposals.109 We adopt our proposals, which create regulatory parity with cable.

    107NPRM, para. 15. See 47 CFR 76.59(c).

    108NPRM, para. 15. See 47 CFR 76.59(d). See also 47 U.S.C. 338(l)(3)(B), 534(h)(1)(C)(iii); Must Carry Order, para. 46.

    109 NAB Comments at 4.

    C. Market Determinations

    23. We adopt our tentative conclusion that market modifications in the satellite carriage context will apply only to the specific stations and communities addressed in a particular market modification petition.110 NAB, the only commenter on this issue, supports our conclusion.111 Our conclusion is consistent with the cable carriage rules 112 and is based on the statute's language granting authority to modify markets “with respect to a particular commercial television broadcast station.” 113 It is also reasonable because market modification determinations are highly fact-specific and turn on whether a particular commercial television broadcast station serves the needs of a specific community.

    110NPRM, para. 16.

    111 NAB Comments at 5.

    112See Must Carry Order, para. 47 n.139 (stating that “the statute is intended to permit the modification of a station's market to reflect its individual situation”); 47 CFR 76.59. We note that this is also consistent with the Commission's previous determination that stations may make a different retransmission consent/mandatory carriage election in the satellite context from that made in the cable context. See DBS Broadcast Carriage Report and Order, para. 23.

    113 47 U.S.C. 338(l)(1).

    24. We also adopt our tentative conclusion that we will consider market modification requests separately in the cable and satellite contexts.114 NAB and DISH, the only commenters on this issue, support our conclusion.115 We find this preferable given the differences in service area and community sizes between cable systems and satellite carriers.116 In contrast to the cable context, we must also consider the technical and economic capability of the satellite carriers at issue to effectuate a satellite market modification.117

    114NPRM, para. 16. This is consistent with our conclusion below that prior cable market modification determinations will not automatically apply in the satellite context; see infra para. 26.

    115 DISH at Comments 4; NAB Comments at 5-6.

    116See DISH Comments at 4. See also infra section III.F. (deciding that a “satellite community” for market modification purposes can be defined by a county).

    117See DISH Comments at 4-5.

    25. Finally, we adopt our tentative conclusion that market modification requests will apply only to the satellite carrier or carriers named in the request.118 NAB and DISH support our conclusion,119 although DIRECTV believes this is unnecessary if we allow each satellite carrier to carry a station based on its respective spot beam coverage.120 We disagree with DIRECTV that this is unnecessary. Instead, we find that a modification may not always appropriately apply to both carriers. For example, the carriers' spot beams may be different, even though they are serving the same market, and thus one may have an infeasibility defense while the other may not.

    118NPRM, para. 16. This is also consistent with the satellite carriage election process. See Implementation of the Satellite Home Viewer Improvement Act of 1999: Broadcast Signal Carriage Issues, CS Docket No. 00-96, Order on Reconsideration, FCC 01-249, para. 62, 66 FR 49124, Sept. 26., 2001 (DBS Must Carry Reconsideration Order) (“where there is more than one satellite carrier in a local market area, a television station can elect retransmission consent for one satellite carrier and elect must carry for another satellite carrier”).

    119 DISH at Comments 5; NAB Comments at 5.

    120 DIRECTV Comments at 9.

    26. Prior Determinations. We adopt our tentative conclusion that prior cable market modification determinations will not automatically apply in the satellite context.121 We also decline to establish a presumption that prior cable determinations should apply to satellite markets.122 DISH, NAB, and DIRECTV support these conclusions,123 while Gray proposes that we establish a presumption that prior cable market modification determinations should apply to satellite markets.124 We find the same reasoning that requires us to consider market modification requests separately in the cable and satellite contexts also makes it inadvisable to apply prior cable market determinations to satellite markets. As discussed above, market modifications are specific to the stations, operators/carriers, and communities addressed in a particular market modification petition, as of the time of the petition. Given the differences in service areas and community sizes between cable systems and satellite carriers, and changes that may have occurred since the time of the cable petition, we conclude that it would not be reasonable to automatically apply prior cable market determinations to satellite carriers or establish a rebuttable presumption. We note that Gray's proposal would have us establish a presumption for an entire county based on a finding with respect to a single cable community or several cable communities within a county.125 Moreover, we note that satellite carriers did not have the opportunity to participate in these prior market modification proceedings.126 We also agree with DIRECTV that establishing a presumption would be inconsistent with our statutory obligation to evaluate modifications based on the statutory factors.127 However, as noted in the NPRM, historic carriage is one of the five factors the Commission must consider in evaluating market modification requests and would carry weight in a market modification determination in the satellite context.128 We agree with NAB that consideration of this factor will give sufficient weight to prior decisions without the need to establish a presumption.129

    121NPRM, para. 17.

    122NPRM, para. 17.

    123See DISH Comments at 4-5; NAB at 5-6; DIRECTV Reply at 9-10. See also DIRECTV ex parte (dated June 11, 2015) at 2; DISH ex parte (dated June 11, 2015) at 2.

    124 Gray Comments at 4-5 (“When a satellite market modification is requested for a county or counties where a previous cable market modification has been granted, the FCC should require only that a petitioner file a simple request that the station's satellite market be modified to include the counties that include the communities associated with the earlier modification. Any party opposing the modification would have the burden of demonstrating that, notwithstanding the outcome of the earlier proceeding, the statutory factors do not support a market modification in the satellite context.”).

    125 Gray Comments at 4-6 (“If a previous market modification proceeding has resulted in the assignment of additional communities to a television station's cable carriage market, the FCC should presume that the county or counties in which those communities are located should be added to the station's DBS market.”).

    126 DIRECTV correctly observes that there is no official list of previously-granted modifications. DIRECTV ex parte (dated June 11, 2015) at 2.

    127 DIRECTV Reply at 9.

    128See 47 U.S.C. 338(l)(2)(B)(i)(I) (whether the station, or other stations located in the same area—“have been historically carried on the cable system or systems within such community”).

    129 NAB Comments at 6.

    27. Carriage after a market modification. We adopt our tentative conclusion that television broadcast stations that become eligible for mandatory carriage with respect to a satellite carrier (pursuant to section 76.66 of the rules) by virtue of a change in the market definition (by operation of a market modification pursuant to section 76.59 of the rules) may, within 30 days of the effective date of the new definition, elect retransmission consent or mandatory carriage with respect to such carrier.130 This is consistent with the cable rule.131 NAB and Gray support this conclusion,132 while DISH expresses concern that, as a result of a market modification (and an existing retransmission consent agreement with the involved station), it could have to carry and pay retransmission consent fees to two stations from different states but that are affiliated with the same network.133 DISH proposes that a station's election with respect to the communities added by a market modification should be limited to must-carry for the remainder of the carriage election cycle.134 NAB responds that “[s]atellite carriers cannot lawfully obtain a ‘free pass’ to carry retransmission consent stations without negotiating the prices, terms and conditions of such consent in any geographic area.135 Alternatively, DISH asks the Commission to “clarify that notwithstanding any retransmission consent agreements that would automatically entitle the station to carriage in additional geographic areas due to a market modification, the station must negotiate a new retransmission consent agreement for the new areas.”136 NAB responds that “DISH and other satellite carriers must abide by provisions of the Communications Act and FCC rules governing retransmission consent and must-carry within a station's market, including areas affected by a market modification.” 137

    130NPRM, para. 18. See 47 CFR 76.66(d)(6).

    131See 47 CFR 76.64(f)(5).

    132 NAB Comments at 6; Gray Comments at 8; NAB Reply at 3.

    133See DISH Comments at 9-10.

    134See DISH ex parte (dated June 11, 2015) at 2. We note that DISH initially agreed that a station should elect either retransmission consent or must-carry with the applicable satellite carriers for the new geographic area within 30 days of the market modification order. DISH Comments at 5.

    135 NAB Reply at 2.

    136 DISH ex parte (dated June 11, 2015) at 2. DISH's proposal recognizes that its concern is a short-term problem that would last for the length of any existing retransmission consent agreement. Id. In DISH's scenario, after expiration of the existing agreements with the two same-network affiliates, we expect the marketplace would resolve this concern.

    137 NAB Reply at 1, 3-5. See also 47 U.S.C. 325, 338 and 47 CFR 76.64 through 76.66.

    28. We reject DISH's proposal to mandate a must-carry election for the remainder of the current election cycle because it directly contravenes section 325 of the Act and would be inconsistent with our satellite carriage rules.138 As with any other election for satellite carriage, we find that when a station's market is modified for purposes of satellite carriage, then the station is entitled to elect either retransmission consent pursuant to section 325 or mandatory carriage pursuant to section 338 with respect to the new community or communities added to its market by the modification.139 This is also consistent with the cable market modification process 140 and, moreover, is required by application of sections 325 and 338 of the Act.141 Section 338(a)(1) requires that a satellite carrier must carry upon request all local television stations seeking carriage in any market in which the carrier provides local-into-local service, subject to section 325(b) of the Act.142 Section 325(b)(1) prohibits an MVPD from retransmitting the signal of a broadcast station except “with the express authority of the originating station.” 143 The statute provides for no exception in the market modification context to the retransmission consent requirement. Thus, we reject DISH's argument that the silence of section 102 of the STELAR with respect to retransmission consent means that Congress could not have intended retransmission consent to apply to the carriage of stations in communities added by market modification.144 To the contrary, considering the provisions together in context, we believe the better reading of the statute is that the retransmission consent requirement applies in this context given the absence of an express indication otherwise in either section 102 of STELAR or the retransmission consent provisions.145 We note that, while the network programming may be the same, the two stations would likely be providing very different local programming (e.g., different news, sports, advertising and political programming), each of which may be of interest to the new community, because the stations are licensed to different communities and particularly if the stations are located in different states. Finally, with respect to DISH's proposal that we prevent application of an existing retransmission consent agreement containing a provision requiring carriage pursuant to its terms in the event the Commission modifies a given market, DISH provides no reasoning that persuades us to abrogate a bargained-for and agreed-to contractual provision between a broadcaster and a satellite carrier that expressly contemplates the addition of communities through the market modification process.146 We note, however, that the very purpose of this provision of the STELAR is to provide consumers with access to news, politics, sports, emergency and other programming specifically related to their home state.147 Accordingly, we expect broadcasters and satellite carriers alike will make the needs and expectations of orphan county consumers the priority in negotiating retransmission consent following a successful modification petition.148 We will monitor this situation closely and will take further action if such monitoring indicates that the purpose of this provision is not being effectuated.

    138See 47 U.S.C. 325(b) and 47 CFR 76.66.

    139See 47 CFR 76.66(c) (“In television markets where a satellite carrier is providing local-into-local service, a commercial television broadcast station may elect either retransmission consent, pursuant to section 325 of title 47 United States Code, or mandatory carriage, pursuant to section 338, title 47 United States Code.”). We thus agree with NAB that “a station electing retransmission consent with regard to a community or communities that become part of its defined market following a modification request is the same as any other station making a retransmission consent election.” NAB Reply at 3.

    140See 47 CFR 76.64(f)(5).

    141See 47 U.S.C. 325, 338.

    142 47 U.S.C. 338(a)(1).

    143 47 U.S.C. 325(b)(1).

    144See DISH Comments at 9-10. DISH also appears to argue that, because STELAR provides that a market modification could operate both to add communities to, and delete communities from, a station's local market, the Commission could delete the community at issue from the existing network affiliate's local market at the same time that it adds the new community to the local market of the same-network station seeking the market modification. Id. at 10. Under current rules, however, to delete the community at issue from the existing network station's local market, DISH would have to file a separate petition to modify that station's local market, based on the statutory factors. There is nothing in the record that persuades us to alter the existing process.

    145See STELAR section 102. See also 47 U.S.C. 325(b), 338(c)(1). We also disagree with Gray's argument that the “substantial duplication” exceptions to the satellite mandatory carriage rules should not apply to stations in communities that have been added to their markets via the market modification process. Gray Comments at 8. Section 338(c)(1) speaks clearly on this point in permitting but not requiring a satellite carrier to carry more than one network affiliate licensed to the same state. 47 U.S.C. 338(c)(1).

    146See DISH ex parte (dated June 11, 2015) at 2 (stating that “[m]any retransmission consent contracts require DBS providers to carry a station's signal throughout its local market, even if that local market's boundary is changed by FCC action—meaning the DBS provider could be obligated to pay retransmission consent fees to two network-affiliated stations in a given area pursuant to a market modification, even if these stations duplicate one another.”). See also NAB Reply at 3 (opposing DISH's various proposals to avoid paying retransmission consent fees).

    147See Senate Commerce Committee Report at 11.

    148See supra note 59 (describing the impact on consumers of residing in orphan counties) and note 65 (noting Commission receipt of at least 165 consumer complaints in 2015 that their satellite carrier does not carry a particular station).

    29. We also adopt our tentative conclusion that a satellite carrier must commence carriage within 90 days of receiving the request for carriage from the television broadcast station.149 In the record, NAB and Gray support the 90-day deadline,150 while DISH asks for 120 days.151 The 90-day deadline is consistent with our cable rules,152 as well as with existing carriage procedures involving the addition of a new station to a carrier's lineup 153 and we see no reason to deviate from the 90-day deadlines in these similar contexts.154 Thus, we conclude that 90 days is an appropriate amount of, time for satellite carriers to commence carriage. We note that, as is the case in the cable context, the filing of a petition for reconsideration or application for review does not automatically stay the effect of a Bureau order to add a station to a new community; however, based on the directive in section 338(l)(3)(B)—the satellite counterpart to cable's section 614(h)(1)(C)(iii)—a petition for reconsideration or application for review would automatically stay a Bureau order to delete a station in a community.155 Finally, we adopt our tentative conclusion that the carriage election must be made in accordance with the procedures set forth in section 76.66(d)(1).156

    149NPRM, para. 18.

    150 NAB Comments at 6; Gray Comments at 8; NAB Reply at 3.

    151 DISH Comments at 5-6. We note that 120 days is inconsistent with DISH's proposal that requests for carriage use the procedures governing carriage of new stations. DISH Comments at 5.

    152See 47 CFR 76.64(f)(5).

    153See 47 CFR 76.66(d)(3). We note that DISH's proposal for 120 days to commence carriage is inconsistent with DISH's proposal that requests for carriage use the procedures governing carriage of new stations. See DISH Comments at 5.

    154 DISH speculates that “there may be time-consuming technical or billing changes, among other things, necessary for the satellite carrier to undertake” in order to effectuate carriage of a market modification. DISH Comments at 5-6. We see no evidence in the record to suggest that commencement of carriage after a market modification is more difficult or complicated in the satellite context or more difficult or complicated than adding a new station to a carrier's lineup.

    155See NAB Comments at 6-7 (seeking clarification that “the filing of a petition for reconsideration or application for review does not relieve a cable or satellite provider of its obligation to commence carriage pursuant to a broadcaster's must carry election or begin retransmission consent negotiations consistent with good faith requirements”). In the Cable Market Modification Second Report and Order, paras. 63-64, the Commission found that section 614(h)(1)(C)(iii)—the cable counterpart to section 338(l)(3)(B)—“prohibits cable operators from deleting from carriage commercial broadcast stations during the pendency of a market modification request but does not address maintaining the status quo with respect to additions. Given the absence of a parallel statutory directive with respect to channel additions, we see no reason to depart from the general presumption that a decision is valid and binding until it is stayed or overruled. To the extent the process aids broadcast stations in both retaining and obtaining cable carriage rights, that appears to be the result intended by the statutory framework adopted.” See Cablevision Systems Corporation, CSR-3873-A, Memorandum Opinion and Order, DA 96-1231, para. 11 (CSB, rel. Aug. 2, 1996) (explaining that “if we were to accept the general arguments for granting the stay raised by Time Warner and Cablevision, every initial market modification decision adverse to any cable operator would be postponed while either the Bureau or Commission acts on the petition for reconsideration or application for review. Such a result would unduly delay qualified television stations from realizing their statutory cable carriage rights.”). See also Dynamic Cablevision of Florida Ltd., et al., CSR-4722-A, CSR-4707-A, Memorandum Opinion and Order, FCC 97-191, para. 20 (rel. Jul. 1, 1997) (“hold[ing] that a commercial television station may not be deleted from a cable system until the Commission has completed all administrative proceedings pertaining to a particular market redefinition . . . . There can be no question that Commission reconsideration or review of a Bureau market redefinition ruling is a ‘proceeding’ pursuant to the market re-definition section.”).

    156NPRM, para. 18. Section 76.66(d)(1) requires that an election request made by a television station must be in writing and sent to the satellite carrier's principal place of business, by certified mail, return receipt requested. 47 CFR 76.66(d)(1)(ii). The rule requires that a television station's written notification shall include the following information: (1) Station's call sign; (2) Name of the appropriate station contact person; (3) Station's address for purposes of receiving official correspondence; (4) Station's community of license; (5) Station's DMA assignment; and (6) Station's election of mandatory carriage or retransmission consent. 47 CFR 76.66(d)(1)(iii). The rule also requires that, within 30 days of receiving the request for carriage from the television broadcast station, a satellite carrier must notify the station in writing that it will not carry the station, along with the reasons for such decision, or that it intends to carry the station. 47 CFR 76.66(d)(1)(iv). DISH proposes that requests for carriage follow the procedures outlined in 47 CFR 76.66(d)(3), which governs written requests for carriage by new stations. DISH Comments at 5. However the carriage election procedures outlined in 47 CFR 76.66(d)(3) expressly refer to the procedures set forth in 47 CFR 76.66(d)(1). See 47 CFR 76.66(d)(1)(ii) through (iii) and (d)(3)(ii). The only difference is timing and even DISH agrees with the filing of an election within 30 days of the market modification order which is consistent with the 30 days in 47 CFR 76.66(d)(1).

    D. Technical or Economic Infeasibility Exception for Satellite Carriers

    30. We adopt our proposal to codify the language of section 338(l)(3), which provides that “[a] market determination . . . shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.” 157 In enacting this provision, Congress recognized that the unique nature of satellite television service may make a particular market modification difficult for a satellite carrier to effectuate and, thus, exempted the carrier from the resulting carriage obligation.158 According to the record, spot beam coverage and capacity constraints (discussed below) are the primary technical and economic impediments to carriage facing both satellite carriers. Based on the constraints described in the record, we conclude that it is per se not technically and economically feasible for a satellite carrier to provide a station to a new community 159 that is, or to the extent to which it is,160 outside the relevant spot beam 161 on which that station is currently carried.162 We adopt our tentative conclusion that the satellite carrier has the burden to demonstrate that the resulting carriage from a market modification “is not technically and economically feasible . . . by means of [a carrier's] satellites in operation.” 163 In this regard, we will allow satellite carriers to demonstrate spot beam coverage infeasibility by providing a detailed and specialized certification, under penalty of perjury (as described herein).164 In addition, with respect to other possible bases for a carrier to assert that carriage would be technically or economically infeasible, such as costs associated with changes to customer satellite dishes to accommodate reception from different orbital locations, we will review these assertions on a case-by-case basis. To avoid unnecessary burdens on broadcasters, satellite carriers, county governments and the Commission, we establish a process for prospective petitioners to obtain information from a satellite carrier regarding feasibility of carriage by the carrier prior to the filing of a market modification petition. We require satellite carriers to respond to broadcaster and county government requests for information about the feasibility of prospective market modifications with certifications and afford prospective petitioners with a process for Commission review of such certifications before filing a market modification petition. The Commission will not proceed to evaluate the five factors for a market modification with respect to a particular satellite carrier where it is shown that the resulting carriage obligation would not be technically and economically feasible at the time of the market determination.

    157 47 U.S.C. 338(l)(3). See 47 CFR 76.59(e).

    158Senate Commerce Committee Report at 11 (recognizing “that there are technical and operational differences that may make a particular television market modification difficult for a satellite carrier to effectuate.”).

    159 For purposes of our discussion, by “new community” we refer to a new community to be added to a station's local television market by grant of the prospective market modification. As discussed below in section III.F., a “community” for purposes of a satellite market modification is defined as a county.

    160 This per se exemption is limited to areas outside the carrier's spot beam. Thus, a satellite carrier will be required to carry the station to those areas inside the relevant spot beam even if part of the new community (i.e., county) is outside the relevant spot beam, in the absence of additional evidence of infeasibility. See infra paras. 34-35 (Partial Spot Beam Coverage).

    161 Satellite carriers use spot beams to offer local broadcast stations. DIRECTV Comments at 2. DIRECTV explains that “[s]pot-beam technology divides up a portion of the bandwidth available to a satellite into beams that cover limited geographic areas. Doing so allows particular sets of frequencies to be reused many times. This spectral efficiency unlocked the potential for satellite carriers to offer local broadcast signals in the late 1990s, and it enables satellite carriers to offer local service today.” Id.

    162See DIRECTV Comments at 9 (asking the Commission to find that “it is per se technically and economically infeasible for a satellite carrier to provide a station to subscribers who live in an area outside of the spot beam on which that station is currently carried.”). For purposes of our discussion, we will refer to the spot beam on which the station is currently carried as the “relevant spot beam.”

    163NPRM, para. 19. See 47 U.S.C. 338(l)(3). The legislative history also indicates “that claims of the existence of such difficulties should be well substantiated and carefully examined by the [Commission] as part of the petition consideration process.” Senate Commerce Committee Report at 11.

    164 We will refer to this as the “detailed certification.” See infra at section III.D.2. We base our proposal on DIRECTV's suggested certification, which we find would meet the carrier's burden to demonstrate spot beam coverage infeasibility. See DIRECTV ex parte (dated Jul. 9, 2015) at 3-4. To ensure the ongoing accuracy and veracity of the spot beam coverage infeasibility certification process, we may, in particular cases, require a satellite carrier to provide us with supporting documentation for the certification. 47 U.S.C. 154(i), 154(j), 308(b), 403.

    1. Technical or Economic Impediments to Carriage

    31. The NPRM sought comment on the types of technical or economic impediments contemplated by section 338(l)(3) that would make satellite carriage infeasible in a new community.165 The NPRM also sought comment on any objective criteria by which the Commission could determine technical or economic infeasibility, such as spot beam coverage constraints.166 In response, we received very few comments on potential impediments except infeasibility due to insufficient spot beam coverage and due to costs of making changes to customer satellite dishes. DIRECTV described spot beam coverage and capacity constraints as being the key technical and economic impediments to carriage.167 DIRECTV asserted, and DISH agreed, that carriage should be considered per se infeasible if the new community is outside the coverage of the spot beam that carries the station.168 The carriers explain that if the spot beam on which a station is being carried does not cover the new community, a satellite carrier “has no good [carriage] options available to it.” 169 Even if the spot beam on which a station is being carried covers the new community, DISH adds that carriage of the station may be infeasible if the station is carried on a different satellite at a different orbital position than the satellite providing the existing local broadcast stations to the market.170 DISH explains that “it is possible” that this situation could require DISH to make equipment changes at “all or most households” in the new community.171 The broadcast comments do not substantively refute spot beam coverage and capacity constraints as legitimate technical or economic impediments, except to say that such constraints must be appropriately demonstrated, consistent with the statute and legislative history.172

    165 In particular, the NPRM sought comment on whether spot beam contour diagrams should be required to demonstrate spot beam coverage limitations. NPRM, para. 20 (“Should we require satellite carriers claiming infeasibility due to insufficient spot beam coverage to provide spot beam contour diagrams to show whether a particular spot beam can be used to cover a particular community? ”).

    166NPRM, para. 20 (asking “Are there any objective criteria by which the Commission could determine technical or economic infeasibility? For example, the Commission has recognized that spot beam coverage limitations, in the provision of local-into-local service context, may be a legitimate technical impediment. Under what circumstances would the limitations or coverage of a spot beam be a sufficient basis for a satellite carrier to prove that carriage of a station in the community at issue is not technically and economically feasible?”).

    167See DIRECTV Comments at 3-4, 8-9. In its comments, DISH generally observed that a satellite carrier may be unable as a technical or financial matter to comply with a market modification. DISH Comments at 7.

    168See DIRECTV Reply at 7; DISH ex parte (dated Jun. 11, 2015) at 3.

    169 DISH ex parte (dated Jun. 11, 2015) at 3.

    170See DISH ex parte (dated Jun. 11, 2015) at 3; DISH ex parte (dated Jul. 8, 2015) at 1.

    171 DISH ex parte (dated Jun. 11, 2015) at 3; DISH ex parte (dated Jul. 8, 2015) at 1 (explaining that “DISH offers local broadcast stations on spot beams on several satellites at a variety of different orbital locations. Therefore, it is possible that households in a given local market might be unable to receive a new broadcast station that was assigned by Nielsen to a different market unless the households, among other things, have a second satellite dish installed, have an existing satellite dish replaced, or have an existing satellite dish repositioned. Where this is the case, it is possible that all or most households in the geographic area impacted by a market modification would require a DISH technician to visit their home to make these equipment changes, which would be technically and economically infeasible.”). (DIRECTV does not indicate that it would have this same problem.)

    172See Gray Comments at 6-7 (“Gray understands and appreciates the technical burdens that satellite operators face in adding signals to their satellite systems, but . . . Satellite operators therefore should be permitted to claim this exemption only in limited circumstances”); NAB Comments at 9 (“NAB urges the Commission to require satellite carriers claiming infeasibility due to insufficient spot beam coverage to provide spot beam contour diagrams to show whether a particular spot beam can be used to cover a particular community”); NAB Reply at 2-3 (saying that claims of infeasibility must be “well substantiated and carefully examined”); WVIR-TV Reply at 2, para. 2 (asserting that the purpose of STELAR would be defeated if satellite operators do not “bear the burden of proving the validity of an assertion of infeasibility”); WVIR-TV ex parte (dated Jul. 2, 2015) at 2 (same).

    32. We are persuaded by the satellite carriers that if the relevant spot beam does not cover the new community, then it is not technically and economically feasible for the carrier to provide the station to such new community.173 In such a scenario, the only available options would be to place the station on the satellite carrier's CONUS beam 174 to reach subscribers in the new community, redirect each and every spot beam on the satellite in order to enable the relevant spot beam to cover the new community,175 or place the station on a second, neighboring spot beam that does cover the new community, if such a beam exists and has capacity. DIRECTV argues that it would be an “inefficient use of resources to devote a CONUS beam, which can be seen throughout the United States, to provide coverage to a single or handful of communities.” 176 Next, DIRECTV argues that, if the new community is covered by a different, neighboring spot beam than the one on which the station is carried, it would almost always lack space on such neighboring spot beam.177 Moreover, DIRECTV explains that, even if there were space, it “would have to reserve capacity on the entire `neighboring' spot beam—capacity that could otherwise be used for a new station or a multicast signal carried throughout the neighboring market.” 178 Thus, it would be inefficient for the carrier to use that space on the neighboring spot beam for a station that could only be received by subscribers in a small part of the local market served by such spot beam.179 Finally, DIRECTV argues that redirecting the entire array of spot beams on the satellite, would cause unacceptable consequences to existing local service.180 We agree with these points and conclude that each of these options are per se technically and economically infeasible.181 Accordingly, we conclude that “it is per se technically and economically infeasible for a satellite carrier to provide a station to subscribers who live in an area outside of the spot beam on which that station is currently carried.” 182 This conclusion is consistent with the Commission's past recognition and acceptance of the service constraints associated with the use of spot beams.183 This means that, if a carrier shows that the relevant spot beam does not provide coverage to the new community, then that is a per se demonstration of infeasibility. Thus, for example, a carrier would not need to show that there is no space on a neighboring spot beam or that it cannot reconfigure a spot beam to effectuate carriage.

    173See DIRECTV Reply at 7; DISH ex parte (dated Jun. 11, 2015) at 3.

    174 DIRECTV carries all of its national programming on satellite beams that cover the entire contiguous United States (“CONUS”). DIRECTV Comments at 2. “DIRECTV carries New York and Los Angeles stations on CONUS beams, but only because those stations are offered throughout the country as distant signals pursuant to 17 U.S.C. 119 and 47 U.S.C. 339.” DIRECTV Comments at 2, n.3.

    175See DIRECTV Comments at 6-7, n.16.

    176 DIRECTV Reply at 7; DIRECTV Comments at 8. The Commission has previously recognized that “to carry a local channel on a transponder designated for CONUS would be particularly inefficient as that channel could only be permissibly viewed in a single DMA.” Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules; Implementation of the Satellite Home Viewer Improvement Act of 1999: Local Broadcast Signal Carriage Issues and Retransmission Consent Issues, CS Docket No. 00-96, Second Report and Order, Memorandum Opinion and Order, and Second Further Notice of Proposed Rulemaking, FCC 08-86, para. 11, 73 FR 24502, May 5, 2008 (Satellite DTV Carriage Order). We note, however, that if the station seeking the market modification was already being carried on a CONUS satellite (e.g., the New York or Los Angeles stations), then carriage of such station would not be per se infeasible in a new community.

    177 DIRECTV explains that it “has designed its spot beams to carry only the primary signals of stations within the local markets they cover. The vast majority of its spot beams are now currently full. In most cases, DIRECTV could not add a station to a ‘neighboring’ spot beam without removing one of the stations already on that beam.” DIRECTV Comments at 8, n.24.

    178 DIRECTV Comments at 9 (explaining that “[r]eserving spot-beam capacity for a station that could only be received in at most a handful of communities would represent a significant waste of spectral resources.”); DIRECTV Reply at 8 (explaining that devoting capacity to the station on a neighboring spot beam “could preclude DIRECTV from carrying a new station that later commences service” and also “would certainly preclude DIRECTV from using the capacity in question to benefit viewers throughout the [local television market at issue],” such as by adding a multicast feed from a local station.).

    179 We thus disagree with NAB that a satellite carrier should be required to show that the station could not be added to a spot beam different than the one on which the station is currently carried that does cover the new community. NAB ex parte (dated Jul. 15, 2015) at 3 (arguing that “the DBS carrier should be required to certify that the spot beam that does serve the affected communities does not have the capacity to carry the station unless another channel is deleted (or other technical or economic reason)”). We find that the financial and opportunity costs associated with requiring a carrier to use scarce capacity on a second spot beam for a station that could only be received by subscribers in a small part of the local market served by such spot beam makes carriage on such spot beam per se infeasible. See DIRECTV Reply at 9.

    180See DIRECTV Comments at 6-7, n.16 (explaining that it generally cannot “move” spot beams on a satellite—except for SPACEWAY satellites which are being replaced—and that it could “slightly adjust the entire array of spot beams on the satellite simultaneously,” but this would affect the local service provided by all of the spot beams on the satellite, thus “disrupt[ing] [local] service across dozens of markets and negat[ing] DIRECTV's efforts to optimize population coverage.”); DIRECTV Reply at 7 (“moving the entire array of spot beams means subscribers in portions of the [local television market at issue] and many other markets would lose all the local stations they now receive.”).

    181See DIRECTV Reply at 7-9; DISH ex parte (dated Jun. 11, 2015) at 3.

    182 DIRECTV Comments at 9; DISH ex parte (dated Jun. 11, 2015) at 3.

    183 In the DBS Broadcast Carriage Report and Order, the Commission allowed satellite carriers to use spot beam technology to provide local-into-local service, even if the spot beam did not cover the entire market. DBS Broadcast Carriage Report and Order, para. 42. The Commission “observe[d] that section 338 does not require a satellite carrier to serve each and every county in a television market. Rather, it requires that in the areas it does provide local-into-local service, it must carry all local television stations subject to carriage under the statute.” Id. The Commission “recognize[d] that there are some markets, such as the Denver DMA encompassing counties in four states, that are geographically expansive” and that “[a] spot beam may not be able to cover the entire DMA in these instances, and to make the satellite carrier reconfigure its spot beam may deprive it of capacity to serve additional markets with local-into-local coverage.” Id.

    33. We recognize that there may be other technical or economic impediments to carriage that could qualify for the infeasibility exception. For example, DISH explains that it provides local broadcast stations from spot beams on several satellites at a variety of different orbital locations and that each subscriber's satellite dish must be pointed and configured to receive signals from a particular orbital location.184 Therefore, even if the station is on a spot beam that covers the new community, carriage of the station in the new community could still be infeasible if the station is carried on a different satellite at a different orbital location than the satellite providing local service to that community, because such carriage would require DISH to install a second satellite dish, replace an existing satellite dish, or reposition an existing satellite dish, at “all or most households” in the new community.185 We do not have sufficient information in the record to determine that the costs of customer equipment changes to accommodate reception from different orbital positions should be treated as per se infeasible. We will therefore consider assertions of this and other types of infeasibility on a case-by-case basis.

    184 DISH ex parte (dated Jul. 8, 2015) at 1; DISH ex parte (dated Jun. 11, 2015) at 3.

    185See DISH ex parte (dated Jul. 8, 2015) at 1; DISH ex parte (dated Jun. 11, 2015) at 3 (arguing such situation “would impose very significant costs” and should constitute economic infeasibility). In this presumably rare situation, the station at issue is on a spot beam that covers the new community, but this spot beam is different than the spot beam providing local service to the new community. (In other words, there are two spot beams that cover, to some extent, the new community at issue.) In addition, the two spot beams are on different satellites located at different orbital positions and, therefore, subscribers in the new community will need two satellite dishes pointed in different directions to get both the original local stations from one spot beam and the new local station from the second spot beam.

    34. Partial Spot Beam Coverage. The NPRM sought comment on how to handle a situation in which only part of a community could be served with the relevant spot beam.186 The satellite carriers oppose having to serve part of a community if the entire community is not covered by the spot beam, 187 but DIRECTV says it determines spot-beam coverage based on zip codes and asserts that it would be able to serve a community defined as a county based on those zip codes within the county.188 NAB argues, however, that if carriage is viable within portions of a community that is the subject of a market modification request, then satellite carriers should be required to carry the station in those areas.189 We conclude that, if a satellite carrier can provide the station to only part of a new community, then it must do so.

    186NPRM, para. 20 (“To the extent that a satellite carrier can provide the station at issue to some, but not all, subscribers in the community, should we allow or require the carrier to deliver the station to subscribers in the community who are capable of receiving the signal?”).

    187See DISH Comments at 8-9 (arguing that “any finding of technical or economic infeasibility should excuse a satellite carrier entirely from accommodating a market modification request, even if the satellite carrier can provide the station at issue to some, but not all, relevant subscribers”); DIRECTV Reply at 11, n.36 (agreeing with DISH).

    188See DIRECTV Reply at 11-12.

    189See NAB Comments at 9.

    35. As discussed above, the statute requires a satellite carrier to carry a station pursuant to a market modification, unless it is not technically and economically feasible for the carrier to do so. Given the relatively large size of many counties, we conclude that it would be a disservice to consumers, and would not fully effectuate the mandate of the satellite market modification provisions of the STELAR, to presume that partial carriage to a county-defined community is per se infeasible. We are not persuaded by DISH that requiring such partial coverage of a county would necessarily “be burdensome and cause customer confusion for a satellite carrier to target the carriage of a station down to such a granular level, for example by providing a different local broadcast station to a subset of subscribers.” 190 DISH provides no evidence of the burdens associated with partial carriage. Any “confusion” is outweighed by the benefits of providing the added station to the customers who can receive it, consistent with Congressional intent in expanding market modification to satellite carriage. On a case-by-case basis, we will consider whether the area of a new community in which service is feasible is so de minimis that addition of that community to the station's market is effectively infeasible. We also disagree with DIRECTV to the extent that it claims that “there is no underlying requirement to provide service in any particular area to begin with,” and therefore “the Commission need not ‘excuse’ any particular [market modification].” 191 Pursuant to the “carry one, carry all” statutory requirement, a satellite carrier must carry, on request, all local television broadcast stations' signals in local markets in which the satellite carrier carries at least one local television broadcast signal pursuant to the statutory copyright license.192 Furthermore, the statutory language of the infeasibility exception in section 338(l)(3) contemplates that a carriage obligation would result from a market modification.193 If carriage were merely discretionary for the carrier, then there would be no need for the infeasibility exception to relieve the carrier of a carriage obligation. Therefore, if the carrier is providing local television broadcast stations to the new community pursuant to the local statutory copyright license, then it must also provide a station that becomes eligible for carriage as a local station in the new community by operation of the market modification.194

    190 DISH Comments at 8-9.

    191 DIRECTV Reply at 11, n.36.

    192See 47 U.S.C. 338. This requirement is subject to exceptions for duplicating stations and lack of good quality signal, as specified by statute and regulation. See 47 U.S.C. 338(b)(1), (c)(1); 47 CFR 76.66(g)(1), (h)(1) through (2).

    193See 47 U.S.C. 338(l)(3) (“[a] market determination . . . shall not create additional carriage obligations . . .” if carriage “is not technically and economically feasible. . .”).

    194See 47 U.S.C. 338(a). We note that, by operation of the market modification, the station will be afforded “carry one, carry all” carriage rights in the area of the new community in which a carrier provides the other local broadcast stations to the extent the spot beam on which it is carried covers such area of the new community. See id. If the spot beam on which the new local station is carried is different than the one providing local-into-local service to the new community, and therefore the spot beam coverage for the two beams will be different, there may be an area in the new community that had not been receiving local-into-local service, but could receive the new local station. In this situation, the new station by operation of the market modification would be eligible for carriage as a local station in such area of the new community, pursuant to 47 U.S.C. 338(a) (“carry one, carry all”).

    2. Demonstrating Infeasibility

    36. Based on the record, we expect the vast majority of satellite carrier claims of infeasibility will be related to insufficient spot beam coverage. Because of the technical complexities involved in demonstrating spot beam coverage infeasibility, including the use of proprietary confidential information, we establish a streamlined process for carriers to demonstrate spot beam coverage infeasibility through the use of detailed certifications under penalty of perjury, based on a proposal by DIRECTV. Because of the limited record with respect to other possible claims of infeasibility, and our expectation that such other claims will be relatively rare, we do not at this time establish a detailed certification process for demonstrating other types of infeasibility. Instead, carriers will be required to demonstrate other types of infeasibility through the submission of evidence specifically demonstrating the technical or economic reason that carriage is infeasible. Although prospective petitioners will have two options for seeking a Commission determination about the carrier's claim of infeasibility (i.e., filing a market modification petition or filing a separate petition beforehand solely with respect to the infeasibility issue), the requirements for demonstrating infeasibility are the same for both options.

    37. The NPRM tentatively concluded that the satellite carrier has the burden to demonstrate technical or economic infeasibility and invited comment on the type of evidence needed to prove such infeasibility claims.195 Most commenters, including the broadcasters and DISH, agree that the statute places the burden on satellite carriers to demonstrate infeasibility; 196 however, satellite carriers contend that a certification should be sufficient to meet its burden,197 while broadcasters say an “unverifiable” certification would be inadequate to meet their burden under the statute and that a carrier should be required to provide documentation that demonstrates infeasibility.198

    195NPRM, paras. 19-20.

    196 DISH Comments at 7; Gray Comments at 6-7; NAB Comments at 7; WVIR-TV Reply at 1.

    197 DIRECTV ex parte (dated Jun. 11, 2015) at 1 (stating that its proposed detailed certification would “easily satisfy any requirement that satellite carriers ‘substantiate’ and the Commission ‘examine’ the technical and economic infeasibility of spot-beam carriage in these areas, even though no such requirement appears in the statute itself.”); DISH Comments at 7 (“the Commission should limit the required showing to a certification from the satellite carrier that it has analyzed the proposed market modification and has determined that it is not technically and economically feasible for such carrier to accomplish such carriage. A certification should be sufficient, because the types of evidence that the Commission might request could be technically or competitively sensitive, such as spot beam contour maps, cost of equipment upgrades, and subscriber numbers in a given geographic area.”).

    198See NAB Reply at 2 (quoting legislative history that “Congress intended satellite carrier claims of technical and economic infeasibility ‘should be well substantiated and carefully examined by the [Commission] as part of the petition consideration process.’ ”); WVIR-TV Reply at 2 (arguing that the purpose of STELAR is frustrated if satellite carriers are not required to actually prove infeasibility). See also NAB Reply at 3 (“an approach that involves only an unverifiable certification would be inadequate”); Gray Comments at 6 (arguing that satellite carrier claims of infeasibility must be “conclusively demonstrated”).

    38. We adopt our tentative conclusion that the statute places the burden on satellite carriers to demonstrate infeasibility if they assert that carriage of a station in a new community would be technically or economically infeasible. Our conclusion is consistent with the legislative history that claims of infeasibility be “well substantiated and carefully examined by the [Commission].” 199 Moreover, we agree with commenters that, as a practical matter, only the satellite carriers have the specific information necessary to determine if the carriage contemplated in a market modification would not be technically and economically feasible by operation of their satellites.200

    199Senate Commerce Committee Report at 11.

    200See DISH Comments at 7; WVIR-TV Reply at 1.

    39. We adopt a certification process for carriers to demonstrate spot beam coverage infeasibility that should avoid imposing undue expense on, or compromising the confidential business information of, the satellite carriers while also providing the Commission with an appropriate basis for making market modification determinations. We conclude that a detailed certification submitted under penalty of perjury would satisfy the carrier's burden under the statute to substantiate their claims of insufficient spot beam coverage and allow us to carefully examine such claims of infeasibility.201 Broadcasters argue that “the mere `certification' proposed by satellite carriers would not comport with the legislative intent of the technical and economic infeasibility provision” and that “an approach that involves only an unverifiable certification would be inadequate.” 202 Instead, broadcasters argue that satellite carriers should be required to make detailed technical showings related to spot-beam coverage.203 NAB argues that if the Commission chooses to use a certification approach, then we should at least require certain supporting documentation be provided with the certification or in the event of a Commission audit of a certification.204 We agree that a simple certification would not be appropriate, but we also agree with DIRECTV that it would be anomalous to require compendious and detailed evidentiary showings for spot beam coverage of modified local markets when such showings are not (and have never been) required for the provision of local service to unmodified local markets.205 Therefore, we adopt a certification process that requires satellite carriers to evaluate the feasibility of providing the station to the new community in the same manner that it currently uses to determine where in the relevant DMA it can provide the current local broadcast stations.206 These “detailed certifications” about spot beam coverage infeasibility must contain sufficient detail to ensure that the analysis performed by the carrier was appropriate and valid, and they will be subject to penalties for perjury to ensure its reliability. The Commission's review of the detailed certification will generally be limited to determining whether it satisfies the procedural and content requirements described herein.207 Although we will not require carriers to provide supporting documentation as part of their certification, as an additional check the Commission may decide to look behind any certification and require supporting documentation when we deem it appropriate, such as when there is evidence that the certification may be inaccurate.208

    201 DIRECTV ex parte (dated Jun. 11, 2015) at 1.

    202 NAB Reply at 2. See also WVIR-TV Reply at 2 (opposing DISH's proposal to “self-certify” without providing supporting documentation). WVIR-TV explains that “[s]ince information about feasibility is entirely within the possession of the DBS operator, the DBS operator should bear the burden of proving the validity of an assertion of infeasibility. Otherwise, broadcasters will be completely at the mercy of DBS operators who oppose market modifications, largely defeating the purpose of the STELAR statute, if not rendering it a nullity.” Id. NAB also argues that a certification approach “would also be inconsistent with the Commission's longstanding approach to market modification requests in the cable context, which involve a substantial evidentiary showing.” NAB Reply at 2-3. The issue of infeasibility, however, is separate from our analysis of the merits of modifying a market under the statutory factors.

    203See NAB Comments at 9 (asking the Commission “to require satellite carriers claiming infeasibility due to insufficient spot beam coverage to provide spot beam contour diagrams to show whether a particular spot beam can be used to cover a particular community” and “to document that reconfiguring a spot beam, or adding a station to another spot beam that does cover an affected community would be technically or economically infeasible”); Gray Comments at 6 (arguing that satellite carriers should “be required to conclusively demonstrate technical infeasibility”).

    204See NAB ex parte (dated Jul. 15, 2015) at 1-2.

    205 DIRECTV ex parte (dated Jun. 11, 2015) at 1. In other words, because a carrier does not normally have to demonstrate insufficient spot beam coverage with respect to the provision of local service to a local television market (i.e., a carrier provides local service in the areas of the market covered by the relevant spot beam), it would be inconsistent to require a carrier to make a detailed demonstration of insufficient spot beam coverage with respect to the provision of local service to a new community added to such market. See DBS Broadcast Carriage Report and Order, para. 42 (allowing satellite carriers to use spot beam technology to provide local-into-local service, even if the spot beam did not cover the entire market).

    206 We note that this certification process will be explained in the consumer guide that we create to comply with the STELAR section 102(c).

    207See infra at para. 41 (Content of Spot Beam Coverage Infeasibility Detailed Certification).

    208 47 U.S.C. 154(i), 154(j), 308(b), 403. If we find that a satellite carrier is claiming infeasibility with respect to a significant number of requests, we may decide to start routinely requiring that carrier to provide supporting documentation with its certification. See infra at para. 40 (Supporting Documentation). See also NAB ex parte (dated Jul. 15, 2015) at 2 (urging the Commission to require carriers to file certain materials supporting certifications).

    40. Supporting Documentation. In the event that we require supporting documentation, we will require a satellite carrier to provide its “satellite link budget” calculations that were created for the new community. DIRECTV explains that a “satellite link budget is a calculation that accounts for certain factors that affect a radio signal as it travels from an uplink earth station to a space station and back down through the atmosphere to the customer's earth station receiver” and that this technical document “generally takes the form of a table, with entries that include (among other things) transmit power from the uplink earth station and from the satellite, antenna gains, system noise, intersystem interference, and atmospheric attenuation including the effects of ‘rain fade.’ ” 209 DIRECTV states that the net result of this satellite link budget calculation “is an estimation of end-to-end satellite link performance.” 210 DIRECTV pointed out that the supporting materials suggested by NAB are in fact inputs for “link budgets.” 211 We agree with DIRECTV and NAB that it would be appropriate to require a carrier to submit satellite link budget information if the Commission were to determine in a given case that supporting documentation should be provided to support a detailed certification.212 Thus, we require satellite carriers to retain such supporting documentation in the event that the Commission determines further review by the Commission is necessary. Satellite carriers must retain such supporting documentation throughout the pendency of Commission or judicial proceedings involving the certification and any related market modification petition.213 We find this retention period will provide parties with a reasonable amount of time to challenge certifications. If satellite carriers have concerns about providing proprietary and confidential information underlying their analysis, they may request confidentiality.214

    209 DIRECTV ex parte (dated Jul. 23, 2015) at 1.

    210Id.

    211Id. NAB stated that detailed certifications provided by the carrier to demonstrate spot beam coverage infeasibility should be supported by the following documentation: “(1) the latitude and longitude of the calculation point used for each zip code in analyzing (a) the measured performance of the spot beam covering station's local market; (b) the estimated atmospheric effects for reception of the signal; and (c) the estimated levels of interference]; (2) predicted clear-sky signal level based on actual spot beam performance; (3) rain fade statistics and predicted reductions in signal level; (4) predicted levels of inter-system interference; and (5) determination of service or “no service” at the calculation point (in map form with county boundaries shown).” See NAB ex parte (dated Jul. 15, 2015) at 2.

    212See NAB ex parte (dated Jul. 15, 2015) at 2; DIRECTV ex parte (dated Jul. 23, 2015) at 1 (“if a satellite carrier were to certify that it could not serve some or all of a proposed modified area, and Commission staff were to find a genuine dispute of fact related to such certification, the Commission could require the satellite carrier to submit a representative link budget for the area in question for staff review on a confidential basis.”).

    213See NAB ex parte (dated Jul. 15, 2015) at 2 (seeking carrier retention of supporting material “for a period of either: (i) Two years; or (ii) throughout the pendency of Commission or judicial proceedings involving the certification and any related market modification petition, whichever is longer”); DIRECTV ex parte (dated Jul. 23, 2015) at 2. (“Satellite carriers could be required to preserve records sufficient to generate such a representative link budget, presumably during the pendency of any market modification proceeding.”).

    214See 47 CFR 0.457, 0.459, 76.9.

    41. Content of Spot Beam Coverage Infeasibility Detailed Certification. Based on DIRECTV's proposed detailed certification,215 a satellite carrier's certification of infeasibility due to insufficient spot beam coverage must contain the following elements in order to be used and relied upon as evidence to demonstrate carrier claims of technical and economic infeasibility. First, the detailed certification must explain why carriage is not technically and economically feasible, including a detailed explanation of the “process by which a satellite carrier has determined whether or not the spot beam in question covers the geographic area at issue.” 216 Second, to ensure equal treatment to all stations, the detailed certification must state that the satellite carrier “has conducted this analysis in substantially the same manner and using substantially the same parameters used to determine the geographic area in which it currently offers stations carried on the spot beam.” 217 Finally, the satellite carrier must support its detailed certification with an affidavit or declaration under penalty of perjury, as contemplated under section 1.16 of the Commission's rules and 28 U.S.C. 1746,218 signed and dated by an authorized officer of the satellite carrier with personal knowledge of the representations provided in the certification, verifying the truth and accuracy of the information therein.219

    215See DIRECTV ex parte (dated Jul. 9, 2015) at 3-4. We find that DIRECTV's proposed detailed certification would meet a satellite carrier's burden to demonstrate spot beam coverage infeasibility.

    216 DIRECTV ex parte (dated Jun. 23, 2015) at 1.

    217 DIRECTV ex parte (dated Jul. 9, 2015) at 4.

    218 47 CFR 1.16 (Declarations under penalty of perjury in lieu of affidavits). See 28 U.S.C. 1746.

    219 We further note that willful false statements in a certification are punishable by fine and/or imprisonment pursuant to 18 U.S.C. 1001, may result in loss of a satellite carrier's licenses and authorizations (47 U.S.C. 312), and may subject the satellite carrier to forfeiture (47 U.S.C. 503). See also 47 CFR 1.17. See NAB ex parte (dated Jul. 15, 2015) at 2-3.

    42. We will consider on a case-by-case basis other claims of technical or economic infeasibility, such as DISH's claim of infeasibility due to the costs associated with changing customer satellite dishes to accommodate reception from different orbital locations. In addition, there may be circumstances of technical and economic infeasibility not yet contemplated. As discussed above, a satellite carrier bears the burden of demonstrating that the carriage contemplated in a market modification would not be technically and economically feasible by operation of its satellites. To demonstrate such infeasibility, a carrier must provide detailed technical or economic information to substantiate its claim of infeasibility.

    3. Infeasibility Determinations

    43. We will resolve disputes about carrier claims of infeasibility either in the context of a market modification proceeding or, at a prospective petitioner's option, in a separate proceeding before a market modification petition is filed. Thus, a prospective petitioner has two options. First, a prospective petitioner may file its market modification petition. In such cases, a satellite carrier would raise any claim of infeasibility in response to the petition and we would make a determination about the validity of such claim (and would not further process a petition for which the resulting carriage is infeasible). We recognize that prospective petitioners may want to know about carrier's claims of infeasibility, and may want a Commission determination about the validity of such claim, before filing a market modification petition. Therefore, a prospective petitioner's second option is to initiate the pre-filing coordination process (described below). Through this process, a prospective petitioner would request information from a carrier about infeasibility and a carrier would raise any claim of infeasibility in response to this request in the form of a certification. A carrier claiming spot beam coverage infeasibility must provide the detailed certification (described above). For all other claims of infeasibility, the certification provided for here is for the purpose of a carrier to notify the prospective petitioner about the carrier's claim of infeasibility prior to a petition being filed. The prospective petitioner can then decide whether it would like to file a special relief petition to obtain a Commission determination about the validity of the carrier's claim of infeasibility.220

    220 As discussed above, in cases other than spot beam coverage infeasibility, a carrier will be required to provide evidence to support its claim of infeasibility. In the case of a claim of spot beam coverage infeasibility, the Commission's review of the certification will generally be limited to determining whether it meets with the requirements for a “detailed certification.” See supra section III.D.2.

    44. The NPRM tentatively concluded that a satellite carrier must raise any technical or economic impediments in the market modification proceeding.221 The NPRM sought comment on whether the Commission, in the case of satellite market modifications, should require or encourage stations seeking market modifications to contact a satellite carrier before filing a market modification request in order to get an initial determination of whether the carrier considers the request technically and economically feasible.222 The NPRM observed that such an initial inquiry might save some broadcasters the time and expense of compiling the standardized evidence for a modification that is not technically and economically feasible by alerting them to the technical or economic issue, which they could then take into account in deciding whether to file the request.223

    221NPRM, para. 19. The NPRM further considered whether the satellite carrier should be deemed to have waived technical or economic infeasibility arguments if not raised in response to the market modification request (and, thus, be prohibited from raising such a claim after a market determination, such as in response to a station's request for carriage). Id.

    222NPRM, para. 21.

    223NPRM, para. 21.

    45. Most commenters support addressing satellite carrier claims of infeasibility before a broadcaster files a prospective market modification petition; 224 however, NAB argues that a satellite carrier's claim of infeasibility should not preclude the filing of a market modification petition.225 Commenters seem to agree that satellite carriers generally must raise claims of technical and economic infeasibility during, if not before, the market modification proceeding.226 Broadcasters, however, argue that a satellite carrier should be deemed to have waived technical and economic infeasibility claims if not raised in or before a market modification proceeding,227 while DIRECTV argues that satellite carriers should not be precluded from raising future claims of infeasibility, such as technical infeasibility due to reduced spot beam coverage.228

    224 DIRECTV Comments at 11; Gray Comments at 6; WVIR-TV Reply at 2 n.1.

    225 NAB Comments at 9-10.

    226See NAB Comments at 7 (stating that “the statute requires satellite carriers to raise any technical or economic impediments in the context of the market modification proceeding”); Gray Comments at 6 (stating “the rules should require satellite providers to assert technical infeasibility before broadcasters go through the trouble and expense of preparing a market modification petition”); DIRECTV Comments at 11 (stating that it would be willing to provide a certification to broadcasters about “whether DIRECTV's spot beam covers the communities they would like to add to their local markets” before a broadcaster seeks a prospective market modification because “[s]uch information . . . would prove of most value to stations before they undergo the time and effort of filing a market modification petition.”).

    227 NAB Comments at 7 (stating that “that a satellite carrier be deemed to have waived technical and economic infeasibility arguments if they are not raised during a market modification proceeding”); Gray at 6 (asserting that “[f]ailure to assert `technical infeasibility' at this stage of the process would foreclose the satellite provider from later claiming technical infeasibility.”).

    228 DIRECTV Comments at 10 n.28 (“The possibility of technical problems reducing spot-beam coverage serves as yet another reason why satellite carriers should not lose `rights' to assert feasibility issues if they do not raise them during a market modification proceeding”).

    46. We conclude that it is most efficient and practical for stakeholders to consider and resolve satellite carrier claims of technical or economic infeasibility before petitioners go through the time and expense of seeking a prospective market modification and before the Commission uses administrative resources to evaluate the merits of a prospective market modification petition under the five statutory factors. Therefore, we slightly modify our tentative conclusion and proposal.229 We conclude that a satellite carrier must raise any technical or economic impediments either in the market modification proceeding or prior to the market modification proceeding in response to a broadcaster or county government inquiry about feasibility of carriage resulting from a prospective market modification.230

    229NPRM, para. 19.

    230 In the event that a previously feasible market modification were to later become infeasible (e.g., due to reduction of spot beam coverage), the satellite carrier must file a petition for market modification to delete the previously added new community from the station's local market and provide evidence of infeasibility (e.g., spot beam infeasibility certification). See DIRECTV Comments at 10 n.28.

    47. Pre-Filing Coordination Process. We establish a process that will allow a prospective petitioner (broadcaster or county government), at its option, to obtain a certification from a satellite carrier about whether or not (and to what extent) carriage resulting from a contemplated market modification is technically and economically feasible for such carrier before the prospective petitioner undertakes the time and expense of preparing and filing a market modification petition.231 To initiate this process, a prospective petitioner may make a request in writing to a satellite carrier for the carrier to provide the certification about the feasibility or infeasibility of carriage. A satellite carrier must respond to this request within a reasonable amount of time by providing a feasibility certification to the prospective petitioner. A satellite carrier must also file a copy of the correspondence 232 and feasibility certification it provides to the prospective petitioner in this docket electronically via ECFS 233 so that the Media Bureau can track these certifications and monitor carrier response time. If the carrier is claiming spot beam coverage infeasibility, then the certification provided by the carrier must be the same type of detailed certification that would be required in response to a market modification petition (discussed above).234 For any other claim of infeasibility, the carrier's feasibility certification must explain in detail the basis of such infeasibility 235 and must be prepared to provide documentation in support of its claim, in the event the prospective petitioner decides to seek a Commission determination about the validity of the carrier's claim. If carriage is feasible, a statement to that effect must be provided in the certification. To obtain a Commission determination about the validity of the carrier's claim of infeasibility, a prospective petitioner must either file a (separate) petition for special relief 236 or its market modification petition.237

    231See Gray Comments at 7 (stating “there should be a procedure for resolving disputes over technical infeasibility before broadcasters invest in making the necessary market modification showing”); DIRECTV Comments at 11 (“the most efficient process regarding feasibility would be for a station that is considering filing a market modification petition to first ask the two satellite carriers if they can provide the station in the communities proposed”). Although we encourage prospective petitioners to utilize the optional procedure for obtaining information and, if necessary, Commission determinations regarding carrier claims of infeasibility, we decline to require this preliminary procedure in order to provide petitioners with flexibility to decide which procedure is best suited for their situation.

    232 Correspondence would include, for example, a brief cover letter and the prospective petitioner's initiating request for the feasibility certification provided.

    233 A satellite carrier must file the correspondence and feasibility certification electronically into this docket through the Commission's Electronic Comment Filing System (“ECFS”) using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/. The filing must be clearly designated as a “STELAR feasibility certification” and must clearly reference this proceeding and docket number (MB Docket No. 15-71).

    234See supra at paras. 39-41. NAB ex parte (dated Jul. 15, 2015) at 2 (with respect to a “pre-filing process,” stating that “the satellite carrier should be required to undertake the same steps and make the same certification that would be involved in connection with an actual petition”).

    235 The carrier must state in its certification that the new community is covered by the relevant spot beam, but carriage is nevertheless infeasible and explain why.

    236See 47 CFR 76.7.

    237 The Bureau may on its own motion review the adequacy of a certification filed in the docket, but generally a prospective petitioner must request such review by filing a petition for special relief; 47 CFR 76.7. See Gray Comments at 7 (stating “[i]f a broadcaster wishes to challenge the satellite operator's showing, it should be permitted to do so either before filing a market modification petition or concurrent with a petition as part of the market modification proceeding.”); NAB ex parte (dated Jul. 15, 2015) at 2 (stating that “the satellite carrier's determination should be reviewable by the FCC and result in a final FCC action that could be the subject of a petition for reconsideration, applications for review (and ultimately, court review”).

    48. For purposes of determining a reasonable amount of time for a carrier to respond to a request for a feasibility certification, we find a carrier should generally respond within 45 days of receipt of a prospective petitioner's written request; 238 however, we find that it would be reasonable for the carrier to respond in 90 days if the carrier has to process several requests at the same time.239 If the response is after 45 days, the carrier must provide an explanation for the longer time period in its certification (e.g., having to respond to multiple simultaneous requests).240 With this process, we are trying to balance the need to provide broadcasters' with as fast a response as possible, while recognizing that satellite carriers may have difficulty responding to numerous requests at once.

    238See Gray Comments at 6 (stating that satellite carriers should be required to respond to requests about spot-beam coverage within a “specified period” such as 30 or 45 days).

    239 DIRECTV explains that “while DIRECTV will endeavor to respond to any and all requests as soon as it can, it should not be required to do so in fewer than 90 days, particularly if required to respond to multiple simultaneous requests.” DIRECTV Reply at 10.

    240 If the Media Bureau finds that a carrier is routinely taking up to 90 days to respond or is not providing a reasonable explanation for when it takes 90 days to respond, the Bureau may order such carrier to respond to future requests in a shorter time period or may take other enforcement action.

    49. The NPRM proposed that a meritorious market modification request would be granted even if such grant would not create a new carriage obligation at that time, for example, due to a finding of technical or economic infeasibility.241 The NPRM explained that this would ensure that, if there is a change in circumstances such that it later becomes technically and economically feasible for the satellite carrier to carry the station, then the station could assert its carriage rights pursuant to the earlier market modification.242 The NPRM also sought comment on whether to impose a reporting requirement on satellite carriers to notify the affected broadcaster if circumstances change at a later time making it technically and economically feasible for the carrier to carry the station.243 NAB supports the proposal to grant a meritorious market modification request, even if the grant would not create a new carriage obligation at that time because of a finding of technical or economic infeasibility.244 Commenters split regarding whether to require satellite carriers to provide notice if and when carriage later becomes feasible. Broadcasters support such a requirement,245 while satellite carriers oppose it.246

    241NPRM, para. 19. The NPRM noted that this is consistent with the cable carriage context, in which the Commission might grant a market modification, even if such grant would not result in a new carriage obligation at that time, for example, due to the station being a duplicating signal. See 47 CFR 76.56(b)(5).

    242NPRM, para. 19. This concept is similar to the duplicating signals situation, in which a satellite carrier must add a television station to its channel line-up if such station no longer duplicates the programming of another local television station. See 47 CFR 76.66(h)(4). Alternatively, the NPRM sought comment on whether we should deny a market modification request that would not create a new carriage obligation at the time of the determination. NPRM, para. 19.

    243NPRM, para. 20. The NPRM asked “Would such changes in circumstances be sufficiently public so as to not necessitate the burden of such a reporting requirement? If not notified by the carrier, how else could a broadcaster find out about such a change in the feasibility of carriage?” Id.

    244 NAB Comments at 7-8.

    245See Gray Comments at 7 (“Satellite operators likewise should be required to notify broadcasters and the FCC within sixty days of any change that results in previously infeasible carriage becoming feasible.”); NAB Comments at 8; WVIR-TV Reply at 3. Gray suggests that this requirement include notice to the broadcaster and the Commission within sixty days of feasibility, as well as periodic reports affirming continued infeasibility. Gray Comments at 7.

    246See DISH Comments at 8 (arguing that “a [reporting] requirement would be unduly burdensome for the satellite carrier because it would require a carrier to constantly track and reevaluate an unknown number of market modification requests.”); DIRECTV Comments at 10 (“the Commission should not require ongoing monitoring or reporting of spot beam issues. . . . [A]bsent technical problems reducing spot-beam coverage, spot beams remain static for the life of the satellite.”).

    50. We conclude that we will not grant a market modification petition that could not create a new carriage obligation at that time due to a finding of technical or economic infeasibility. We find that our conclusion is more consistent with the statute's requirement that a market modification “shall not create additional carriage obligations for a satellite carrier” if it is infeasible “at the time of the determination.” 247 We also note that claims of infeasibility related to a carrier's satellites are not likely to change for the life of a satellite, which can be as long as 15 years.248 Because we will not grant a market modification for which carriage would be infeasible, we find it unnecessary to require satellite carriers to provide notice if and when carriage later becomes feasible. Instead, a petitioner may re-initiate the process if at a later time a satellite carrier has deployed new satellites that could change this feasibility determination.

    247See 47 U.S.C. 338(l)(3). See also Senate Commerce Committee Report at 11 (indicating an expectation that “a petitioner may refile its petition if at a later time a satellite carrier has deployed new satellites that could change this feasibility determination”).

    248See DIRECTV Comments at 10 (“absent technical problems reducing spot-beam coverage, spot beams remain static for the life of the satellite”); DIRECTV ex parte (dated Jul. 9, 2015) at 2 (“While the figure varies for individual satellites, 15 years represents a good `rule of thumb' for the life of a direct-to-home geostationary satellite.”). See also Amendment of Commission's Space Station Licensing Rules and Policies, IB Docket No. 00-248, First Report and Order, FCC 02-45, para. 143, 67 FR 12485, Mar. 19, 2002.

    E. No Effect on Eligibility To Receive Distant Signals via Satellite

    51. We adopt our proposal to codify the language of section 338(l)(5), which provides that “[n]o modification of a commercial television broadcast station's local market pursuant to this subsection shall have any effect on the eligibility of households in the community affected by such modification to receive distant signals pursuant to section 339, notwithstanding subsection (h)(1) of this section.” 249 We also adopt our interpretation of this provision as an exception to the restrictions on a satellite subscriber's eligibility to receive “distant” (out-of-market) signals.250 Commenters on this issue supported our proposal.251

    249 47 U.S.C. 338(l)(5); NPRM, para. 22. See 47 CFR 76.59(f).

    250NPRM, para. 22.

    251See DIRECTV Comments at 8 n.21; DISH Comments at 6.

    52. The Communications Act and copyright laws set out two key restrictions on a satellite subscriber's eligibility to receive “distant” (out-of-market) signals.252 First, subscribers are generally eligible to receive a distant station from a satellite carrier only if the subscriber is “unserved” over the air by a local station of the same network.253 Second, even if “unserved,” a subscriber is not eligible to receive a distant station from a satellite carrier if the carrier is making “available” to such subscriber a local station of the same network.254 We conclude that section 338(l)(5) is largely intended as an exception to these two subscriber eligibility requirements. In other words, we find that the addition of a new local station to a local television market by operation of a market modification (which might otherwise restrict a subscriber's eligibility to receive a distant station) would not disqualify an otherwise eligible satellite subscriber from receiving a distant station of the same network. For example, a subscriber may be receiving a distant station because the subscriber resides in a “short market,” 255 has obtained a waiver from the relevant network station,256 or is otherwise eligible to receive distant signals pursuant to section 339. That subscriber will continue to be eligible to receive the distant station after a market modification that adds a new local station of the same network.

    252See 17 U.S.C. 119; 47 U.S.C. 339. Generally, a station is considered “distant” with respect to a subscriber if such station originates from outside of the subscriber's local television market (or DMA). See id.

    253 The Copyright Act defines an “unserved household,” with respect to a particular television network, as “a household that cannot receive, through the use of an antenna, an over-the-air signal containing the primary stream, or, on or after the qualifying date, the multicast stream, originating in that household's local market and affiliated with that network—(i) if the signal originates as an analog signal, Grade B intensity as defined by the Federal Communications Commission in section 73.683(a) of title 47, Code of Federal Regulations, as in effect on January 1, 1999; or (ii) if the signal originates as a digital signal, intensity defined in the values for the digital television noise-limited service contour, as defined in regulations issued by the Federal Communications Commission (section 73.622(e) of title 47, Code of Federal Regulations), as such regulations may be amended from time to time. 17 U.S.C. 119(d)(10)(A). An unserved household can also be one that is subject to one of four statutory waivers or exemptions. See 47 U.S.C. 119(d)(10)(B) through (E).

    254See 47 U.S.C. 339(a)(2); 17 U.S.C. 119(a)(3). This second restriction on eligibility is commonly referred to as the “no distant where local” rule. A satellite carrier makes “available” a local signal to a subscriber or person if the satellite carrier offers that local signal to other subscribers who reside in the same zip code as that subscriber or person. 47 U.S.C. 339(a)(2)(H). See also 17 U.S.C. 119(a)(3)(F).

    255See 47 U.S.C. 339(a)(2)(C); 17 U.S.C. 119(d)(10). By a “short market,” we refer to a market in which one of the four major television networks is not offered on the primary stream of a local broadcast station, thus permitting satellite carriers to deliver a distant station affiliated with that missing network to subscribers in that market.

    256See 47 U.S.C. 339(a)(2)(E).

    53. The NPRM sought comment on whether section 338(l)(5) also means that the deletion of a local station from a local television market by operation of a market modification would not make otherwise ineligible subscribers now eligible to receive a distant station of the same network.257 We agree with DIRECTV that this provision “was meant to ensure that households would not lose eligibility for distant signals for which they were eligible prior to modification” and should not “be interpreted as denying distant signals to subscribers who newly become eligible for them because they have lost their local signals through market modification.” 258 Thus, the deletion of a local network station from a community by operation of a market modification may allow a satellite carrier to import a distant station of the same network into such community, provided subscribers in such community would now satisfy the requirements for receipt of distant stations (pursuant to section 339).

    257NPRM, para. 22.

    258 DIRECTV Comments at 7-8, n.21.

    F. Definition of Community

    54. For purposes of a satellite market modification, we define a “satellite community” as a county, which is supported by all commenters on this issue.259 Consistent with the cable context, in a market modification request, the petitioner will define the satellite community (or communities) to be added or deleted from a particular station's local television market. We also retain our existing definition of a “cable community” for purposes of a cable market modification, having received no comment on this issue.

    259See 47 CFR 76.5(gg)(2). See DISH Comments at 6; Gray Comments at 3; UCC Comments at 8; Sen. Bennet et al. Letter at 1. See also DIRECTV Reply at 11-12 (stating a county-based definition was acceptable, if certain conditions were met).

    55. In the NPRM, as directed by the STELAR,260 we sought comment on how to define a “community” for purposes of market modification in both the cable and satellite contexts.261 The concept of a “community” is important in the market modification context because the term describes the geographic area that will be added to or deleted from a station's local television market (based on the statutory factors), which in turn determines the stations that must be carried by a cable operator or a satellite carrier to subscribers in that community.262 Because of the localized nature of cable systems, cable communities are usually easily defined by the geographic boundaries of a given cable system, which are often, but not always, coincident with a municipal boundary and may vary as determined on a case-by-case basis.263 In the cable carriage context, the Commission considers market modification requests on a community-by-community basis 264 and defines a community unit in terms of a “distinct community or municipal entity” where a cable system operates or will operate.265 A “satellite community,” however, is not as easily defined as a cable community. Unlike cable service, which reaches subscribers in a defined local area via local franchises, satellite carriers offer service on a national basis, with no connection to a particular local community or municipality. Moreover, satellite service is sometimes offered in areas of the country that do not have cable service, and thus cannot be defined by cable communities.

    260 Section 102(d)(2) of the STELAR requires the Commission to “update what it considers to be a community for purposes of a modification of a market” in both the satellite and cable contexts. See STELAR sec. 102(d)(2); 47 U.S.C.A. 338 Note. The legislative history indicates Congress' intent for the Commission “to consider alternative definitions for community that could make the market modification process more effective and useful.” Senate Commerce Committee Report at 12.

    261See NPRM, para. 23. In considering how to define a “satellite community” for purposes of a satellite market modification, the NPRM sought comment on whether to use a cable community-based definition (as was done in the significantly viewed context; see 47 CFR 76.5(gg)), a zip code-based definition, and/or a county-based definition. See NPRM, para. 25.

    262See NPRM, para. 24. See also 47 U.S.C. 338(a)(1); 47 CFR 76.66(b)(1).

    263See Amendment of Part 76 of the Commission's Rules and Regulations with Respect to the Definition of a Cable Television System and the Creation of Classes of Cable Systems, Docket No. 20561, First Report and Order, FCC 77-205, para. 20 n.5, 42 FR 19329, Apr. 13, 1977 (1977 Cable Order) (citing Amendment of Parts 21, 74, and 91 to Adopt Rules and Regulations Relating to the Distribution of Television Broadcast Signals By Community Antenna Television Systems, and Related Matters, Docket Nos. 14895, 15233, 15971, Second Report and Order, FCC 66-220, para. 149, 31 FR 4540, Mar. 17, 1966 (“community” as used in the rules must be determined case-by-case depending on the circumstances involved).

    264See 1977 Cable Order, para. 22 (explaining that the cable carriage rules apply “on a community-by-community basis”). See also 47 CFR 76.5(dd), 76.59.

    265See 47 CFR 76.5(dd). A cable system community is assigned a community unit identifier number (“CUID”) when registered with the Commission, pursuant to section 76.1801 of the rules. 47 CFR 76.1801.

    56. Satellite Community. We define a “satellite community” on a county basis. All commenters on this issue support this definition.266 DISH and Gray assert that the use of a county definition will better address the orphan county problem.267 In addition, UCC observes that “[c]ounty-wide data is more easily available than community-specific data.” 268 We agree. DIRECTV, who initially supported only zip codes, stated in its reply that it could support a county-based definition, as long as satellite carriers are not required to provide service to the parts of a modified market outside the market's spot beam.269 We agree with commenters that a county definition is better suited for the national nature of satellite service and will most effectively promote access to in-state programming for subscribers in orphan counties. In addition, we agree that county-wide data will work effectively and is easily available. We also take note of the support for a county definition from both broadcasters and satellite carriers. Thus, we are persuaded that allowing satellite market modifications on a county basis would best effectuate the satellite market modification provision.

    266See DISH Comments at 6; Gray Comments at 3; UCC Comments at 8; Sen. Bennet et al. Letter at 1. See also DIRECTV Reply at 11-12 (stating a county-based definition was acceptable, if certain conditions were met).

    267See DISH Comments at 6 (“a county-based definition will most effectively promote consumer access to in-state programming”); Gray Comments at 3 (“county-by-county approach would best carry out Congress' intent to give the FCC the tools necessary to solve the `orphan county' problem in appropriate cases”). Gray also states that “a county-by-county approach better suits the way that satellite providers actually provide service.” Gray Comments at 3-4. DISH also observes that “[t]his approach mirrors the existing statutory special exceptions in section 122 designed to address orphan counties, such as the provision allowing a satellite carrier to provide in-state local broadcast stations to two counties in Vermont that are assigned to out-of-state DMAs.” DISH Comments at 6 (citing 17 U.S.C. 122(a)(4)(B)).

    268 UCC Comments at 8.

    269 DIRECTV Reply at 11-12. DIRECTV initially conditioned its support for a county-based definition on our requiring broadcasters to provide the zip codes corresponding with the county in the market modification petition. Id. DIRECTV later clarified that “it should be a relatively easy task for either satellite carriers or broadcasters to associate zip codes with particular market modification requests.” DIRECTV ex parte (dated July 9, 2015) at 2.

    57. We find this approach preferable to defining a “satellite community” on a cable community 270 or zip code basis. In the NPRM, we considered a cable community and/or a zip code as two possible definitions of a satellite community for purposes of market modification.271 No commenters supported the cable community-based definition. We observed the Commission's use of a cable community-based definition in the significantly viewed context.272 As noted above, satellite carriers, unlike cable systems, have no connection to a particular local community or municipality. Given this fact, and based on the absence of any support for this definition, we reject a cable community-based definition for the satellite market modification context. DIRECTV supports the use of zip codes, explaining it determines spot-beam coverage based on zip codes, but (as noted above) expressed qualified support for a county-based definition.273 DISH opposes the use of zip codes, explaining that its systems recognize DMA boundaries based on counties, and that it would be burdensome to do zip-code-based modifications.274 Given DIRECTV's qualified support for a county-based definition and DISH's difficulties associated with the use of zip codes, we reject a zip-code-based definition for the satellite market modification context.

    270 The NPRM considered the “satellite community” definition in the significantly viewed context, which is based on the definition of a “cable community.” NPRM, para. 25. See 47 CFR 76.5(gg) (defining a “satellite community” for the significantly viewed context).

    271See NPRM, para. 25.

    272See 47 CFR 76.5(gg).

    273 DIRECTV Comments at 12; DIRECTV Reply at 11.

    274 DISH ex parte (dated June 11, 2015) at 3.

    58. Definition of “Cable Community” for Cable Market Modifications. We adopt our tentative conclusion to retain the existing definition of a “cable community.” 275 No comments were filed on this issue. Section 76.5(dd) of the rules defines a “community unit” as “[a] cable television system, or portion of a cable television system, that operates or will operate within a separate and distinct community or municipal entity (including unincorporated communities within unincorporated areas and including single, discrete unincorporated areas).” 276 We conclude that this definition has worked well in cable market modifications for more than 20 years and should not be changed. We find that retaining the cable definition best effectuates the cable market modification provision. Although (as discussed herein) we allow a satellite community to be defined on a county basis, we see no reason to change the definition to allow cable modifications on a county basis. Despite our objective of treating satellite market modifications and cable market modifications similarly where feasible, we find that practical differences justify different treatment on this issue.

    275See NPRM, para. 23.

    276 47 CFR 76.5(dd).

    IV. Procedural Matters A. Final Regulatory Flexibility Act Analysis

    59. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),277 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM) in this proceeding.278 The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.279

    277See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has been amended by the Contract With America Advancement Act of 1996, Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

    278See Amendment to the Commission's Rules Concerning Market Modification; Implementation of Section 102 of the STELA Reauthorization Act of 2014; MB Docket No. 15-71, Notice of Proposed Rulemaking, FCC 15-34, 80 FR 19594, Apr. 13, 2015 (NPRM).

    279See 5 U.S.C. 604.

    1. Need for, and Objectives of, the Rules

    60. This Report and Order adopts rules to implement section 102 of the Satellite Television Extension and Localism Act (STELA) Reauthorization Act of 2014 (“STELA Reauthorization Act” or “STELAR”).280 The STELAR amended the Communications Act and the Copyright Act to give the Commission authority to modify a commercial television broadcast station's local television market for purposes of satellite carriage rights.281 The Commission previously had the authority to modify markets only in the cable carriage context.282 With section 102 of the STELAR, Congress provides regulatory parity in this regard in order to promote consumer access to in-state and other relevant television programming. Significantly, the STELAR added a new factor for the Commission to consider when evaluating a market modification petition—“whether modifying the local market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence.” 283 Section 102 of the STELAR, and the Commission's actions in this Report and Order, seek to establish a market modification process for the satellite carriage context and, to the extent possible, address satellite subscribers' inability to receive in-state programming in certain areas. In this Report and Order, consistent with Congress' intent that the Commission model the satellite market modification process on the current cable market modification process, the Commission adopts rules to implement section 102 of the STELAR by revising the current cable market modification rule, section 76.59, to apply also to satellite carriage, while adding provisions to the rules to address the unique nature of satellite television service.284 For example, the STELAR recognizes that satellite carriage of additional stations pursuant to a market modification might be technically and economically infeasible in some circumstances.285 In addition to establishing rules for satellite market modifications, section 102 of the STELAR directs the Commission to consider whether it should make changes to the current cable market modification rules,286 and it also makes certain conforming amendments to the cable market modification statutory provision.287 Accordingly, as part of the implementation of the STELAR, the Commission makes conforming and other minor changes to the cable market modification rules.

    280 The STELA Reauthorization Act of 2014 (STELAR), sec. 102, Public Law 113-200, 128 Stat. 2059, 2060-62 (2014) (codified at 47 U.S.C. 338(l)). The STELAR was enacted on December 4, 2014 (H. R. 5728, 113th Cong.). See Report and Order, para. 1.

    281 STELAR secs. 102, 204, 128 Stat. at 2060-62, 2067.

    282See 47 U.S.C. 534(h)(1)(C). See also 47 CFR 76.59.

    283See 47 U.S.C. 338(l)(2)(B)(iii), 534(h)(1)(C)(ii)(III).

    284See 47 CFR 76.59. The Commission revises section 76.59 of the rules to apply to both cable systems and satellite carriers.

    285 47 U.S.C. 338(l)(3) (stating that “[a] market determination . . . shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.”).

    286 STELAR sec. 102(d).

    287See STELAR sec. 102(b) (amending 47 U.S.C. 534(h)(1)(C)(ii)).

    2. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

    61. No public comments were filed in response to the IRFA.

    62. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.288 The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

    288See 5 U.S.C. 604(a)(3).

    3. Description and Estimate of the Number of Small Entities To Which the Rules Will Apply

    63. The RFA directs agencies to provide a description of and an estimate of the number of small entities to which the rules will apply.289 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 290 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.291 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.292 The rule changes adopted herein will directly affect small television broadcast stations, small MVPD systems, which include cable system operators and satellite carriers and small county governmental jurisdictions. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

    289 5 U.S.C. 604(a)(4).

    290 5 U.S.C. 601(6).

    291 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 5 U.S.C. 601(3).

    292 15 U.S.C. 632. Application of the statutory criteria of dominance in its field of operation and independence are sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission's statistical account of television stations may be over-inclusive.

    64. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” 293 Census Bureau data for 2011 indicate that there were 89,476 local governmental jurisdictions in the United States.294 We estimate that, of this total, a substantial majority may qualify as “small governmental jurisdictions.” 295 Thus, we estimate that most governmental jurisdictions are small.

    293 5 U.S.C. 601(5).

    294U.S. Census Bureau, Statistical Abstract of the United States: 2011, Table 427 (2007).

    295 The 2007 U.S Census data for small governmental organizations indicate that there were 89,476 local governments in 2007. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 2011, Table 428. The criterion by which the size of such local governments is determined to be small is a population of fewer than 50,000. 5 U.S.C. 601(5). However, since the Census Bureau, in compiling the cited data, does not state that it applies that criterion, it cannot be determined with precision how many such local governmental organizations are small. Nonetheless, the inference seems reasonable that a substantial number of these governmental organizations have a population of fewer than 50,000. To look at Table 428 in conjunction with a related set of data in Table 429 in the Census's Statistical Abstract of the U.S., that inference is further supported by the fact that in both Tables, many sub-entities that may well be small are included in the 89,476 local governmental organizations, e.g., county, municipal, township and town, school district and special district entities. Measured by a criterion of a population of fewer than 50,000, many of the cited sub-entities in this category seem more likely than larger county-level governmental organizations to have small populations. Accordingly, of the 89,746 small governmental organizations identified in the 2007 Census, the Commission estimates that a substantial majority are small.

    65. Wired Telecommunications Carriers. The North American Industry Classification System (“NAICS”) defines “Wired Telecommunications Carriers” as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” 296 The SBA has developed a small business size standard for wireline firms for the broad economic census category of “Wired Telecommunications Carriers.” Under this category, a wireline business is small if it has 1,500 or fewer employees.297 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.298 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.299 Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities.

    296 U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. Examples of this category are: broadband Internet service providers (e.g., cable, DSL); local telephone carriers (wired); cable television distribution services; long-distance telephone carriers (wired); closed circuit television (“CCTV”) services; VoIP service providers, using own operated wired telecommunications infrastructure; direct-to-home satellite system (“DTH”) services; telecommunications carriers (wired); satellite television distribution systems; and multichannel multipoint distribution services (“MMDS”).

    297 13 CFRCFR 121.201; NAICS code 517110.

    298 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    299Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    66. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers, which category is defined above.300 The SBA has developed a small business size standard for this category, which is: All such businesses having 1,500 or fewer employees.301 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.302 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.303 Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities.

    300See also U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    301 13 CFR 121.201; NAICS code 517110.

    302 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    303Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    67. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rate regulation rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide.304 According to the Television and Cable Factbook, there are 856 cable operators.305 Of this total, all but 10 incumbent cable companies are small under this size standard.306 In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers.307 Current Commission records show 4,562 cable systems nationwide.308 Of this total, 4,000 cable systems have fewer than 20,000 subscribers, and 562 systems have 20,000 subscribers or more, based on the same records. Thus, under this standard, we estimate that most cable systems are small.

    304 47 CFR 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, MM Docket No. 92-266, MM Docket No. 93-215, Sixth Report and Order and Eleventh Order on Reconsideration, FCC 95-196, 60 FR 35854, July 12, 1995.

    305See Warren Communications News, “Television and Cable Factbook 2015”, Cable Volume 2, at D-1073—D-1120. We note that, according to NCTA, there are 660 cable systems. See NCTA, Industry Data, Number of Cable Operators and Systems, http://www.ncta.com/Statistics.aspx (visited Aug. 6, 2015). Depending upon the number of homes and the size of the geographic area served, cable operators use one or more cable systems to provide video service. See Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, MB Docket No. 12-203, Fifteenth Report, FCC 13-99, para. 24 (rel. July 22, 2013) (15th Annual Competition Report).

    306 SNL Kagan, U.S. Multichannel Top Cable MSOs, http://www.snl.com/interactivex/TopCableMSOs.aspx (visited June 26, 2014). We note that when this size standard (i.e., 400,000 or fewer subscribers) is applied to all MVPD operators, all but 14 MVPD operators would be considered small. 15th Annual Competition Report, paras. 27-28 (subscriber data for DBS and Telephone MVPDs). The Commission applied this size standard to MVPD operators in its implementation of the CALM Act. See Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act, MB Docket No. 11-93, Report and Order, FCC 11-182, para. 37, 77 FR 40276, July 9, 2012 (CALM Act Report and Order) (defining a smaller MVPD operator as one serving 400,000 or fewer subscribers nationwide, as of December 31, 2011).

    307 47 CFR 76.901(c).

    308 The number of active, registered cable systems comes from the Commission's Cable Operations and Licensing System (COALS) database on August 6, 2015. A cable system is a physical system integrated to a principal headend. We note that, according to NCTA, there are 5,208 cable systems. See NCTA, Industry Data, Number of Cable Operators and Systems, http://www.ncta.com/Statistics.aspx (visited Aug. 6, 2015).

    68. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” 309 The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate.310 Based on available data, we find that all but 10 incumbent cable operators are small under this size standard.311 We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million.312 Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable to estimate with greater precision the number of cable system operators that would qualify as small cable operators under this definition.

    309 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.

    310 47 CFR 76.901(f); see Public Notice, FCC Announces New Subscriber Count for the Definition of Small Cable Operator, DA 01-158 (CSB, rel. Jan. 24, 2001) (establishing the threshold for determining whether a cable operator meets the definition of small cable operator at 677,000 subscribers and stating that this threshold will remain in effect for purposes of section 76.901(f) until the Commission issues a superseding public notice). We note that current industry data indicates that there are approximately 54 million incumbent cable video subscribers in the United States today and that this updated number may be considered in developing size standards in a context different than section 76.901(f). NCTA, Industry Data, Cable's Customer Base (June 2014), https://www.ncta.com/industry-data (visited June 25, 2014).

    311See SNL Kagan, U.S. Multichannel Top Cable MSOs, http://www.snl.com/interactivex/TopCableMSOs.aspx (visited June 26, 2014).

    312 The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to [47 CFR] 76.901(f) of the Commission's rules. See 47 CFR 76.901(f).

    69. Satellite Carriers. The term “satellite carrier” means an entity that uses the facilities of a satellite or satellite service licensed under Part 25 of the Commission's rules to operate in the Direct Broadcast Satellite (DBS) service or Fixed-Satellite Service (FSS) frequencies.313 As a general practice (not mandated by any regulation), DBS licensees usually own and operate their own satellite facilities as well as package the programming they offer to their subscribers. In contrast, satellite carriers using FSS facilities often lease capacity from another entity that is licensed to operate the satellite used to provide service to subscribers. These entities package their own programming and may or may not be Commission licensees themselves. In addition, a third situation may include an entity using a non-U.S. licensed satellite to provide programming to subscribers in the United States pursuant to a blanket earth station license.314 The Commission has concluded that the definition of “satellite carrier” includes all three of these types of entities.315

    313 The Communications Act defines the term “satellite carrier” by reference to the definition in the copyright laws in title 17. See 47 U.S.C. 340(i)(1) and 338(k)(3); 17 U.S.C.119(d)(6). Part 100 of the Commission's rules was eliminated in 2002 and now both FSS and DBS satellite facilities are licensed under Part 25 of the rules. Policies and Rules for the Direct Broadcast Satellite Service, FCC 02-110, 67 FR 51110, August 7, 2002; 47 CFR 25.148.

    314 See, e.g., Application Of DIRECTV Enterprises, LLC, Request For Special Temporary Authority for the DIRECTV 5 Satellite; Application Of DIRECTV Enterprises, LLC, Request for Blanket Authorization for 1,000,000 Receive Only Earth Stations to Provide Direct Broadcast Satellite Service in the U.S. using the Canadian Authorized DIRECTV 5 Satellite at the 72.5° W.L. Broadcast Satellite Service Location, Order and Authorization, DA 04-2526 (Sat. Div. rel. Aug. 13, 2004).

    315 SHVERA Significantly Viewed Report and Order, FCC 05-187, paras. 59-60.

    70. Direct Broadcast Satellite (DBS) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. DBS, by exception, is now included in the SBA's broad economic census category, Wired Telecommunications Carriers,316 which was developed for small wireline businesses. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.317 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.318 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.319 Therefore, under this size standard, the majority of such businesses can be considered small. However, the data we have available as a basis for estimating the number of such small entities were gathered under a superseded SBA small business size standard formerly titled “Cable and Other Program Distribution.” The definition of Cable and Other Program Distribution provided that a small entity is one with $12.5 million or less in annual receipts.320 Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and DISH Network.321 Each currently offers subscription services. DIRECTV and DISH Network each reports annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS service provider.

    316 This category of Wired Telecommunications Carriers is defined above (“By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.”). U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    317 13 CFR 121.201; NAICS code 517110.

    318 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    319Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    320 13 CFR 121.201; NAICS code 517510 (2002).

    321 See 15th Annual Competition Report, at para. 27. As of June 2012, DIRECTV is the largest DBS operator and the second largest MVPD in the United States, serving approximately 19.9 million subscribers. DISH Network is the second largest DBS operator and the third largest MVPD, serving approximately 14.1 million subscribers. Id. at paras. 27, 110-11.

    71. Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA's broad economic census category, Wired Telecommunications Carriers,322 which was developed for small wireline businesses. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.323 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.324 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.325 Therefore, under this size standard, the majority of such businesses can be considered small.

    322 This category of Wired Telecommunications Carriers is defined above (“By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.”). U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    323 13 CFR 121.201; NAICS code 517110.

    324 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    325Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    72. Home Satellite Dish (HSD) Service. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled (free) programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers' receipt of video programming. Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Wired Telecommunications Carriers.326 The SBA has developed a small business size standard for this category, which is: all such businesses having 1,500 or fewer employees.327 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.328 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.329 Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities.

    326 This category of Wired Telecommunications Carriers is defined above (“By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.”). U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    327 13 CFR 121.201; NAICS code 517110.

    328 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    329Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    73. Open Video Services. The open video system (OVS) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers.330 The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services,331 OVS falls within the SBA small business size standard covering cable services, which is Wired Telecommunications Carriers.332 The SBA has developed a small business size standard for this category, which is: all such businesses having 1,500 or fewer employees.333 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.334 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.335 Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. In addition, we note that the Commission has certified some OVS operators, with some now providing service.336 Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises.337 The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some of the OVS operators may qualify as small entities.

    330 47 U.S.C. 571(a)(3) through (4). See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, MB Docket No. 06-189, Thirteenth Annual Report, FCC 07-206, para. 135, 74 FR 11102, March 16, 2009 (2009) (“Thirteenth Annual Cable Competition Report”).

    331See 47 U.S.C. 573.

    332 This category of Wired Telecommunications Carriers is defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    333 13 CFR 121.201; NAICS code 517110.

    334 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    335Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    336 A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.

    337See Thirteenth Annual Cable Competition Report, para. 135. BSPs are newer businesses that are building state-of-the-art, facilities-based networks to provide video, voice, and data services over a single network.

    74. Wireless cable systems—Broadband Radio Service and Educational Broadband Service. Wireless cable systems use the Broadband Radio Service (BRS) 338 and Educational Broadband Service (EBS) 339 to transmit video programming to subscribers. In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years.340 The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.341 After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas.342 The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid.343 Auction 86 concluded in 2009 with the sale of 61 licenses.344 Of the 10 winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

    338 BRS was previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS). See Amendment of Parts 21 and 74 of the Commission's Rules with Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act—Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, FCC 95-230, para. 7, 60 FR 36524, Jul. 17, 1995.

    339 EBS was previously referred to as the Instructional Television Fixed Service (ITFS). See id.

    340 47 CFR 21.961(b)(1).

    341 47 U.S.C. 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of section 309(j) of the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction licenses, the applicable standard is SBA's small business size standard of 1,500 or fewer employees.

    342Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, AU Docket No. 09-56, Public Notice, DA 09-1376 (WTB rel. Jun. 26, 2009).

    343Id.

    344Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period, Public Notice, DA 09-2378 (WTB rel. Nov. 6, 2009).

    75. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers,345 which was developed for small wireline businesses. The SBA has developed a small business size standard for this category, which is: All such businesses having 1,500 or fewer employees.346 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.347 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.348 Therefore, under this size standard, we estimate that the majority of businesses can be considered small entities. In addition to Census data, the Commission's internal records indicate that as of September 2012, there are 2,241 active EBS licenses.349 The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.350

    345 This category of Wired Telecommunications Carriers is defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    346 13 CFR 121.201; NAICS code 517110.

    347 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    348Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    349http://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp.

    350 The term “small entity” within SBREFA applies to small organizations (non-profits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of fewer than 50,000). 5 U.S.C. 601(4) through (6).

    76. Incumbent Local Exchange Carriers (ILECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. ILECs are included in the SBA's economic census category, Wired Telecommunications Carriers.351 Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.352 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.353 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.354 Therefore, under this size standard, the majority of such businesses can be considered small.

    351 This category of Wired Telecommunications Carriers is defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    352 13 CFR 121.201; NAICS code 517110.

    353 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    354Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    77. Small Incumbent Local Exchange Carriers. We have included small incumbent local exchange carriers in this present RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” 355 The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope.356 We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

    355 15 U.S.C. 632.

    356 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of “small-business concern,” which the RFA incorporates into its own definition of “small business.” See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 601(3) (RFA). SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. See 13 CFR 121.102(b).

    78. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. These entities are included in the SBA's economic census category, Wired Telecommunications Carriers.357 Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.358 Census data for 2007 shows that there were 3,188 firms that operated for the entire year.359 Of this total, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees.360 Therefore, under this size standard, the majority of such businesses can be considered small.

    357 This category of Wired Telecommunications Carriers is defined above. See also U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    358 13 CFR 121.201; NAICS code 517110.

    359 U.S. Census Bureau, 2007 Economic Census. See U.S. Census Bureau, American FactFinder, “Information: Subject Series—Estab and Firm Size: Employment Size of Establishments for the United States: 2007—2007 Economic Census,” NAICS code 517110, Table EC0751SSSZ5; available at http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.

    360Id. With respect to the latter 44 firms, there is no data available that shows how many operated with more than 1,500 employees.

    79. Television Broadcasting. This economic census category “comprises establishments primarily engaged in broadcasting images together with sound.” 361 The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts.362 The 2007 U.S. Census indicates that 808 firms in this category operated in that year. Of that number, 709 had annual receipts of $25,000,000 or less, and 99 had annual receipts of more than $25,000,000.363 Because the Census has no additional classifications that could serve as a basis for determining the number of stations whose receipts exceeded $38.5 million in that year, we conclude that the majority of television broadcast stations were small under the applicable SBA size standard.

    361 U.S. Census Bureau, 2012 NAICS Definitions, “515120 Television Broadcasting,” at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. This category description continues, “These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studios, from an affiliated network, or from external sources.”

    362 13 CFR 121.201; 2012 NAICS code 515120.

    363 U.S. Census Bureau, Table No. EC0751SSSZ4, Information: Subject Series—Establishment and Firm Size: Receipts Size of Firms for the United States: 2007 (515120), http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prodType=table.

    80. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial television stations to be 1,390 stations.364 Of this total, 1,221 stations (or about 88 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on July 2, 2014. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 395.365 NCE stations are non-profit, and therefore considered to be small entities.366 Therefore, we estimate that the majority of television broadcast stations are small entities.

    364See Broadcast Station Totals as of December 31, 2014, Press Release (MB rel. Jan. 7, 2015) (Broadcast Station Totals) at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-331381A1.pdf.

    365See Broadcast Station Totals, supra.

    366See generally 5 U.S.C. 601(4), (6).

    81. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations 367 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.

    367 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.” 13 CFR 21.103(a)(1).

    82. Class A TV and LPTV Stations. The same SBA definition that applies to television broadcast stations would apply to licensees of Class A television stations and low power television (LPTV) stations, as well as to potential licensees in these television services. As noted above, the SBA has created the following small business size standard for this category: those having $38.5 million or less in annual receipts.368 The Commission has estimated the number of licensed Class A television stations to be 431.369 The Commission has also estimated the number of licensed LPTV stations to be 2,003.370 Given the nature of these services, we will presume that these licensees qualify as small entities under the SBA definition.

    368 13 CFR 121.201; NAICS code 515120.

    369See Broadcast Station Totals, supra.

    370See Broadcast Station Totals, supra.

    4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

    83. The Report and Order revises section 76.59 of the rules to apply also to the satellite television context. The new satellite rules permit commercial television broadcast stations, satellite carriers and county governments to file petitions seeking to modify a commercial television broadcast station's local television market for purposes of satellite carriage rights.371 Under section 76.59 of the rules, commercial TV broadcast stations and cable system operators may already file such requests for market modification for purposes of cable carriage rights. Consistent with the current cable requirements, the adopted rules require petitioners to file market modification requests and/or responsive pleadings in accordance with the procedures for filing Special Relief petitions in section 76.7 of the rules.372 Consistent with the current cable requirements, the adopted rules require petitioners to provide specific forms of evidence to support market modification petitions, should they ch0ose to file such petitions.373 A television broadcast station that becomes eligible for mandatory satellite carriage by operation of a market modification may elect retransmission consent or mandatory carriage with respect to a satellite carrier within 30 days of the market determination.374 A satellite carrier must commence carriage within 90 days of receiving the station's request for carriage.375

    371See Report and Order para. 9.

    372See Report and Order paras. 12-13. Broadcasters and satellite carriers that want to oppose market modification requests would need to file responsive pleadings in accordance with 47 CFR 76.7.

    373See Report and Order para. 17 (discussing evidentiary requirements for filing market modification petitions). These requirements are codified in 47 CFR 76.59.

    374See Report and Order at para. 24. Carriage elections must be made in accordance with the procedures set forth in section 76.66(d)(1). See Report and Order at para. 26. Section 76.66(d)(1) requires that an election request made by a television station must be in writing and sent to the satellite carrier's principal place of business, by certified mail, return receipt requested. 47 CFR 76.66(d)(1)(ii). The rule requires that a television station's written notification shall include the following information: (1) Station's call sign; (2) Name of the appropriate station contact person; (3) Station's address for purposes of receiving official correspondence; (4) Station's community of license; (5) Station's DMA assignment; and (6) Station's election of mandatory carriage or retransmission consent. 47 CFR 76.66(d)(1)(iii).

    375See Report and Order at para. 25.

    84. The Report and Order establishes a process that will allow a prospective petitioner (i.e., broadcaster or county government) to obtain a certification from a satellite carrier about whether or not (and to what extent) carriage resulting from a contemplated market modification is technically and economically feasible for such carrier before the prospective petitioner undertakes the time and expense of preparing and filing a market modification petition.376 To initiate this process, a prospective petitioner may make a request in writing to a satellite carrier for the carrier to provide the certification about the feasibility or infeasibility of carriage. A satellite carrier must respond to this request within a reasonable amount of time by providing a feasibility certification to the prospective petitioner.377 A satellite carrier must also file a copy of the correspondence and feasibility certification it provides to the prospective petitioner in this docket electronically via ECFS so that the Media Bureau can track these certifications and monitor carrier response time. If the carrier is claiming spot beam coverage infeasibility, then the certification provided by the carrier must be the same detailed certification that would be required in response to a market modification petition.378 For any other claim of infeasibility, the carrier's feasibility certification must explain in detail the basis of such infeasibility and must be prepared to provide documentation in support of its claim, in the event the prospective petitioner decides to challenge the carrier's claim.379 If carriage is feasible, a statement to that effect must be provided in the certification.380 If a broadcaster or county government has concerns about the adequacy of the carrier's certification, or has some reason to question the validity of the carrier's certification, the broadcaster or county government may raise such concerns in a (separate) petition for special relief or its market modification petition.381

    376See Report and Order para. 45.

    377Id. With respect to what would be a reasonable amount of time for a carrier to respond to a request for a feasibility certification, we expect carriers will generally be able to respond within 45 days of receipt of a prospective petitioner's written request; however, we find that it would be reasonable for the satellite carrier to respond in 90 days if the carrier has to process several requests at the same time. If the response is after 45 days, the carrier must provide an explanation for the longer time period in its certification (e.g., having to respond to multiple simultaneous requests). If the Media Bureau finds that a carrier is routinely taking up to 90 days to respond or is not providing a reasonable explanation for when it takes 90 days to respond, the Bureau may order such carrier to respond to future requests in a shorter time period or may take other enforcement action. With this process, we are trying to balance the need to provide broadcasters' with as fast a response as possible, while recognizing that satellite carriers may have problems responding to numerous requests at once.

    378See Report and Order paras. 37-39.

    379See Report and Order para. 45.

    380See Report and Order para. 45.

    381See Report and Order para. 45.

    85. The adopted rules require a satellite carrier to provide a detailed and specialized certification to demonstrate its claim that satellite carriage resulting from a market modification would be technically or economically infeasible due to insufficient spot beam coverage.382 Satellite carriers will be required to provide supporting documentation upon request by the Commission and must therefore retain such supporting documentation substantiating potential review by the Commission.383 As noted in section C of this FRFA, neither one of the satellite carriers, DISH nor DIRECTV, qualify as a small entity and small businesses do not generally have the financial ability to become DBS licensees because of the high implementation costs associated with satellite services.

    382See Report and Order paras. 35-36.

    383See Report and Order para. 35.

    5. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    86. The RFA requires an agency to describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.384

    384 5 U.S.C. 604(a)(6).

    87. Consistent with the statute's goal of promoting regulatory parity between cable and satellite service, the Report and Order applies the existing cable market modification rules to the satellite context, while adding provisions to the rules to address the unique nature of satellite television service. Therefore, the adopted rules for the first time allow a commercial television broadcast station to request a modification of its local television market for purposes of satellite carriage. Small TV stations that choose to file satellite market modification petitions must comply with the associated filing and evidentiary requirements (explained in section D of the FRFA); however, the filing of such petitions is voluntary. In addition, small TV stations may want to respond to a petition to modify its market (or the market of a competitor station) filed by a satellite carrier or a competitor station; however, there are no standardized evidentiary requirements associated with such responsive pleadings. Through a market modification process, a small TV station may gain or lose carriage rights with respect to a particular community, based on the five statutory factors, to better reflect localism.385

    385See Report and Order para. 6. Section 338(l) of the Act provides that, in deciding requests for market modifications, the Commission must afford particular attention to the value of localism by taking into account the following five factors: (1) Whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community; (2) whether the television station provides coverage or other local service to such community; (3) whether modifying the local market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence; (4) whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (5) evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community. 47 U.S.C. 338(l)(2)(B)(i) through (v). See also discussion at Report and Order at section III.B.

    88. In the IRFA, we invited small TV stations to comment on whether they are more or less likely, on the whole, to benefit from market modifications.386 In addition, we invited comment on whether there are any alternatives we should consider to the Commission's proposed implementation of section 102 of the STELAR that would minimize any adverse impact on small TV stations, but which are consistent with the statute and its goals, such as promoting localism and regulatory parity.387 We received no comments in direct response to these inquiries. In comments to the NPRM, Gray Television, Inc. (“Gray”) proposed that the Commission should establish a presumption in favor of applying prior cable market modification determinations to satellite markets to lower the burden on television broadcast stations, including small stations.388 In the Report and Order, the Commission rejected Gray's proposal, finding it was inconsistent with the statute's requirement to apply the statutory factors to each market modification petition.389 The Commission did observe, however, that consideration of historic carriage is one of the five statutory factors that the Commission is required to consider in evaluating market modification requests and explained that consideration under such factor would “give sufficient weight to prior decisions without the need to establish a presumption.” 390

    386NPRM, para. 25.

    387Id.

    388 Comments of Gray Television, Inc., MB Docket No. 15-71, at 4-5 (filed May 13, 2015) (Gray Comments).

    389See Report and Order para. 23 (explaining the reasons for not establishing a presumption that prior cable market determinations should apply to satellite markets).

    390Id.

    89. Unique to satellite market modifications, the STELAR provides that a satellite carrier is not required to carry a station pursuant to a market modification if it is not technically and economically feasible for the carrier to do so.391 The Report and Order allows satellite carriers to demonstrate spot beam coverage infeasibility by providing a detailed and specialized certification under penalty of perjury.392 To avoid unnecessary burdens on broadcasters, satellite carriers, and the Commission, the Report and Order established a process for the parties to exchange information regarding feasibility of carriage prior to the filing of a prospective market modification petition.393 The adopted rules allow TV broadcast stations to request a certification regarding claims of technical or economic infeasibility from a satellite carrier before filing a prospective market modification petition, and the station may seek review of such certification by filing a petition for special relief before filing a prospective petition for market modification.394 This process will particularly benefit small stations, allowing them to avoid the time and expense of filing a market modification petition that could not result in carriage of the station. In comments to the NPRM, the Virginia Broadcasting Corp. (“WVIR-TV”) expressed concern that a certification approach would not provide broadcasters with sufficient information to challenge the validity of the satellite carrier's claim of infeasibility.395 The Report and Order addressed this concern by requiring a detailed and specialized certification that is subject to penalties for perjury and which would contain sufficient detail to ensure that the analysis performed by the satellite carrier was appropriate and valid.396

    391See 47 U.S.C. 338(l)(3) (providing that “[a] market determination . . . shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.”). See also discussion in Report and Order at section III.D.

    392See Report and Order para. 36.

    393See section D of this FRFA.

    394See Report and Order paras. 39-40.

    395 Reply Comments of Virginia Broadcasting Corp., MB Docket No. 15-71, at 1 (filed May 28, 2015) (WVIR-TV Reply) (urging the Commission “to reject suggestions by DBS operators that would impose heavy burdens on broadcasters seeking market modifications—burdens that would be particularly onerous for small market television stations—by withholding information that is uniquely in their possession regarding technical and economic infeasibility or by requiring broadcasters to provide support for market modification requests that goes well beyond what is required in the cable television context.”).

    396 See Report and Order paras. 35-36.

    90. The adopted rules, for the first time, allow satellite carriers to request market modifications. The adopted rules also allow satellite carriers to assert claims of infeasibility by certification, which will minimize the burden on them, although the Commission may require satellite carriers to provide documentation upon request.397 As previously discussed, only two entities—DIRECTV and DISH Network—provide direct broadcast satellite (DBS) service, which requires a great investment of capital for operation. As noted in section C of this FRFA, neither one of these two entities qualify as a small entity and small businesses do not generally have the financial ability to become DBS licensees because of the high implementation costs associated with satellite services.

    397See Report and Order para. 35.

    6. Report to Congress

    91. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act.398 In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register.399

    398See 5 U.S.C. 801(a)(1)(A).

    399See 5 U.S.C. 604(b).

    B. Final Paperwork Reduction Act Analysis

    92. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA).400 The requirements will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the information collection requirements contained in this proceeding. The Commission will publish a separate document in the Federal Register at a later date seeking these comments. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002 (SBPRA),401 we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    400 The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat. 163 (1995) (codified in Chapter 35 of title 44 U.S.C.). See OMB Control Number 3060-0546. The Commission received pre-approval for this modified collection on June 17, 2015; however, we are making additional modifications to this collection in this Report and Order.

    401 The Small Business Paperwork Relief Act of 2002 (SBPRA), Publaw Law 107-198, 116 Stat. 729 (2002) (codified in Chapter 35 of title 44 U.S.C.). See 44 U.S.C. 3506(c)(4).

    C. Congressional Review Act

    93. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act.402

    402See 5 U.S.C. 801(a)(1)(A).

    V. Ordering Clauses

    94. Accordingly, it is ordered that, pursuant to section 102 of the STELA Reauthorization Act of 2014 (STELAR), Public Law 113-200, 128 Stat. 2059 (2014), and sections 1, 4(i), 303(r), 325, 338 and 614 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(r), 325, 338 and 534, this Report and Order is hereby adopted, effective thirty (30) days after the date of publication in the Federal Register.

    95. It is further ordered that the Commission's rules are hereby amended as set forth in Appendix B of the Report and Order and will become effective November 2, 2015, except for 47 CFR 76.59(a) and (b), which contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

    96. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Part 76

    Broadcast television, Cable television, Satellite television.

    Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:

    PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE 1. The authority citation for part 76 continues to read as follows: Authority:

    47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

    2. Section 76.5 is amended by revising paragraph (gg) to read as follows:
    § 76.5 Definitions.

    (gg) Satellite community. (1) For purposes of the significantly viewed rules (see § 76.54), a separate and distinct community or municipal entity (including unincorporated communities within unincorporated areas and including single, discrete unincorporated areas). The boundaries of any such unincorporated community may be defined by one or more adjacent five-digit zip code areas. Satellite communities apply only in areas in which there is no pre-existing cable community, as defined in paragraph (dd) of this section.

    (2) For purposes of the market modification rules (see § 76.59), a county.

    3. Section 76.7 is amended by revising paragraph (a)(3) to read as follows:
    § 76.7 General special relief, waiver, enforcement, complaint, show cause, forfeiture, and declaratory ruling procedures.

    (a) * * *

    (3) Certificate of service. Petitions and Complaints shall be accompanied by a certificate of service on any cable television system operator, multichannel video programming distributor, franchising authority, station licensee, permittee, or applicant, or other interested person who is likely to be directly affected if the relief requested is granted.

    4. Section 76.59 is amended by revising paragraphs (a), (b)(1) and (2), and (b)(5) and (6), adding paragraph (b)(7), revising paragraph (d), and adding paragraphs (e) and (f) to read as follows:
    § 76.59 Modification of television markets.

    (a) The Commission, following a written request from a broadcast station, cable system, satellite carrier or county government (only with respect to satellite modifications), may deem that the television market, as defined either by § 76.55(e) or § 76.66(e), of a particular commercial television broadcast station should include additional communities within its television market or exclude communities from such station's television market. In this respect, communities may be considered part of more than one television market.

    (b) * * *

    (1) A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market.

    (2) Noise-limited service contour maps (for full-power digital stations) or protected contour maps (for Class A and low power television stations) delineating the station's technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas.

    Note to paragraph (b)(2):

    Service area maps using Longley-Rice (version 1.2.2) propagation curves may also be included to support a technical service exhibit.

    (5) Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings.

    (6) Published audience data for the relevant station showing its average all day audience (i.e., the reported audience averaged over Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both multichannel video programming distributor (MVPD) and non-MVPD households or other specific audience indicia, such as station advertising and sales data or viewer contribution records.

    (7) If applicable, a statement that the station is licensed to a community within the same state as the relevant community.

    (d) A cable operator or satellite carrier shall not delete from carriage the signal of a commercial television station during the pendency of any proceeding pursuant to this section.

    (e) A market determination under this section shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.

    (f) No modification of a commercial television broadcast station's local market pursuant to this section shall have any effect on the eligibility of households in the community affected by such modification to receive distant signals from a satellite carrier pursuant to 47 U.S.C. 339.

    5. Section 76.66 is amended by adding paragraph (d)(6) and revising paragraph (e)(1) introductory text to read as follows:
    § 76.66 Satellite broadcast signal carriage.

    (d) * * *

    (6) Carriage after a market modification. Television broadcast stations that become eligible for mandatory carriage with respect to a satellite carrier (pursuant to § 76.66) due to a change in the market definition (by operation of a market modification pursuant to § 76.59) may, within 30 days of the effective date of the new definition, elect retransmission consent or mandatory carriage with respect to such carrier. A satellite carrier shall commence carriage within 90 days of receiving the carriage election from the television broadcast station. The election must be made in accordance with the requirements in paragraph (d)(1) of this section.

    (e) Market definitions. (1) A local market, in the case of both commercial and noncommercial television broadcast stations, is the designated market area in which a station is located, unless such market is amended pursuant to § 76.59, and

    [FR Doc. 2015-24999 Filed 10-1-15; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 395 Hours of Service for Drivers: Regulatory Guidance Concerning the Editing of Automatic On-Board Recording Device (AOBRD) Information AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Notice of regulatory guidance.

    SUMMARY:

    FMCSA issues regulatory guidance concerning the editing of records created by automatic on-board recording devices (AOBRDs). The guidance makes clear that, within certain limits, a driver must be allowed to review his or her AOBRD records, annotate and correct inaccurate records, enter any missing information, and certify the accuracy of the information. The AOBRD must retain the original entries, and reflect the date, time, and name of the person making edits to the information. Drivers' supervisors may request that a driver make edits to correct errors, but the driver must accept or reject such requests. Driving time may not be edited except in the case of unidentified or team drivers, and when driving time was assigned to the wrong driver or no driver. All prior Agency interpretations and regulatory guidance on this subject, including memoranda and letters, may no longer be relied upon to the extent they are inconsistent with this guidance.

    DATES:

    This regulatory guidance is effective October 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, phone (202) 366-4325, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Legal Basis

    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 Stat. 2832, October 30, 1984) (1984 Act), as amended (codified at 49 U.S.C. 31136(a)) authorizes the Secretary of Transportation to regulate commercial motor vehicles (CMVs) and equipment, and the drivers and motor carriers that operate them. Section 211 of the 1984 Act also gives the Secretary broad power to “prescribe recordkeeping and reporting requirements” and to “perform other acts the Secretary considers appropriate” (49 U.S.C. 31133(a)(8) and (10)). The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 311, subchapters I and III, relating to CMV programs and safety regulation.

    Background

    Motor carriers began to use automated hours-of-service (HOS) recording devices in the mid-1980s to replace paper records. The Federal Highway Administration, the agency then responsible for the motor carrier safety regulations, published a final rule in 1988 that defined Automatic On Board Recording Devices (AOBRDs) and set forth performance standards for their use (53 FR 38670, September 30, 1988, codified at 49 CFR 395.15).

    Question 2 of the regulatory guidance for § 395.15 prohibits CMV drivers from “amending” AOBRD records of duty status (RODS) during a trip; the guidance was published on April 4, 1997 (65 FR 16370, at 16426). The reason for the prohibition—“If drivers, who use automatic on-board recording devices, were allowed to amend their record of duty status while in transit, legitimate amendments could not be distinguished from falsifications”—was to block a pathway for drivers to falsify their electronic records. At the time the guidance was written, most AOBRD systems required the driver to physically deliver his or her electronic HOS information to the motor carrier using removable media such as a data disk. The Agency may have been concerned that some of those early AOBRD systems might not have incorporated audit trails into their software.

    Over 25 years have passed since the AOBRD rule was published. Many systems now allow electronic transfer of data from in-cab units to a support system. Thousands of motor carriers and hundreds of thousands of drivers are using HOS recording systems that far exceed the minimum performance requirements for AOBRDs. Information technology systems can place very precise controls over the data revision; e.g., specific data elements can be “locked” to prevent any revision once an entry has been made. They also routinely incorporate audit trails to indicate who revised data that was originally entered, when the revision was made, and the reason for the change.

    FMCSA acknowledges that drivers need to be able to make legitimate corrections to their electronic AOBRD records. For example, if a driver erroneously enters “off duty” when he or she actually is on duty/not driving, and realizes this error later, under current guidance the driver would have to relay this information to a supervisory motor carrier official, and that official would need to edit the driver's record. In another example, a driver might need to enter on-duty activity performed when the driver was away from the CMV.

    With the steady increase in CMV drivers using AOBRDs, and the ability of software to note edits without deleting the original record, the need for a driver to make this request through another party is no longer necessary and is becoming increasing less viable. Therefore, as long as the AOBRD record reflects both the original entry and the revised entry, along with information on who made the revision, the date and time, and the reason (in the Remarks sections, see current Question 2 to § 395.15), FMCSA will now allow these edits.

    However, FMCSA continues to prohibit drivers from editing records related to driving time, except in limited circumstances. Driving time may not be edited except in the case of unidentified or team drivers, and when driving time was assigned to the wrong driver or no driver. Such time may be reassigned to the correct driver. Staff of the motor carrier or its electronic systems provider may request that a driver make edits to correct errors. The driver must accept or reject such requests and the AOBRD must record the transaction. If the driver edits the record based on the request, he or she must re-submit and re-certify the corrected record.

    In all instances of editing, the AOBRD must retain the original entries, and reflect the date, time, and name of the person making any edit. The motor carrier must also retain both the original and edited record of duty status.

    The Agency revises Question 2 of the Regulatory Guidance for § 395.15 to address all of these issues.

    PART 395—HOURS OF SERVICE OF DRIVERS Replace the text of § 395.15 Question 2 with the following:

    Question 2: May entries made on an automatic on-board recording device (AOBRD) be annotated?

    Guidance: Yes.

    (1) Within certain limits, a driver must be allowed to review his or her AOBRD records, annotate and correct inaccurate records, enter any missing information, and certify the accuracy of the information.

    (2) The AOBRD must retain the original entries, and reflect the date and time of an edit, and name of the person making the edit. If the driver has already “certified” the entries for the duty period, he or she must re-certify the edited version, which must be transmitted to the carrier.

    (3) “Driving time” may not be edited except in the case of unidentified or team drivers, and when driving time was assigned to the wrong driver or no driver. Such time may be reassigned to the correct driver.

    (4) After reviewing incoming records, drivers' supervisors may request that a driver make edits to correct errors. The driver must accept or reject such requests and the AOBRD must record the transaction. If the driver annotates the record based on the request, he or she must re-submit and re-certify the corrected record.”

    Issued on: September 25, 2015. T.F. Scott Darling, III, Acting Administrator.
    [FR Doc. 2015-25135 Filed 10-1-15; 8:45 am] BILLING CODE 4910-EX-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 100217095-2081-04] RIN 0648-XE217 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; 2015 Recreational Accountability Measure and Closure for Red Grouper AGENCY:

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

    ACTION:

    Temporary rule; accountability measures.

    SUMMARY:

    NMFS implements accountability measures (AMs) for the red grouper recreational sector in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) for the 2015 fishing year through this temporary rule. NMFS projects the recreational sector will reach the recreational annual catch limit (ACL) by October 7, 2015. Therefore, the red grouper recreational sector in the Gulf EEZ will close at 12:01 a.m., local time, October 8, 2015. This closure is necessary to protect the Gulf red grouper resource.

    DATES:

    The recreational sector closure for red grouper in the Gulf EEZ is effective at 12:01 a.m., local time, October 8, 2015, until January 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Rich Malinowski, NMFS Southeast Regional Office, teleph